There was just a tinge of regret and disappointment among the civil rights and civil liberties folks in Massachusetts, in response to statistics indicating that “hate crimes” seem to have diminished a bit.

Especially among folks whose occupation or avocation is the triumph of victimization, the notion that there is something less than an epidemic of hate crimes in the commonwealth is cause for denial, not celebration.

How to explain the fact that 211 Massachusetts towns reported no hate crimes at all in 2009 – and that 69 towns never even bothered to file a report? Political indifference. Lazy cops. A conspiracy among the haters.

Massachusetts still ranked ninth-highest in the country on the hate-crime Hit Parade, but those pockets of hate-free tranquility were not going to be celebrated without a fight.

Some of the explanation involved a bit of blame-the-victim strategy. The police chief in Lynn (one hate crime, all year) told the Boston Globe that he regularly met with minority groups to encourage them to report with more vigor and enthusiasm.

Attorney General Martha Coakley offered up the best politically flavored explanation, attributing the lack of reporting to cuts in local police department budgets. An interesting notion, Martha: Raise property taxes and at least the tax collectors will be hated.

The New Bedford police liaison for hate crimes (who would have thought?) suggested that the haters might be much more clever than they used to be, committing hate crimes, but hiding the hate to avoid the extra sanction that comes with hating the person that you’re mugging.

What rarely emerges from these kinds of discussions is the hint that the hard-core, free-speechy kinds of civil libertarians who have long expressed doubts about “hate crimes” might well have been right.

The hate-crime legal language and, as a result, the hate-crime criminal enforcement, is often a murky mess, in large part because no one is quite sure how much “hate” one needs to generate to meet the legal standard for criminal hatefulness. To be sure, there is, inevitably, across the country, one or two or ten examples a year of truly awful, vicious attacks aimed at a vulnerable race, color, creed and/or sexual orientation sufficient to fuel the enthusiasm for hate-crime legislation and enforcement.

But, as with so much in the field of legislative and legal politics, the enthusiasm can quickly get out of hand, which leads, as it may well have led in Massachusetts, to a reluctance to enforce the messy business.

Freedom Of Speech

The New Bedford police hate-crimes liaison hinted at a part of the subtle constitutional problem with hate crime legislation, when he suggested that if you pretty up your crime and your language with sufficient cleverness, you might avoid having your criminal behavior promoted to hate-crime status.

First Amendment scholars gag just a bit at the notion that your punishment can be upped, based on what you say, or what you think – as opposed to what you actually do, in terms of criminal activity.

The problem is compounded by the competition to be included among the various groups vying to be eligible for hatred. What began largely as a protection for blacks has expanded to include all the popular victims (especially gay and transgender folks, and people with disabilities), with the elderly and homeless now popping up on some “hate” crime lists across the country. You don’t mug an old person these days because that victim is probably frail and won’t pull a pistol out of her purse and blow your brains out. No, chances are, you hate the elderly.

Racists and other classes of “haters” are certainly not blind, but justice is supposed to be blind, in that cute way we have to promise fair and equal treatment under the law.

There is a proverbial slippery slope to be feared, when government decides to perform criminal screening of subtle speech and thought processes.

Is Massachusetts to be congratulated for having so many communities apparently free of hate, in a criminal sort of way? We may never know. What we don’t want is a quota system that rewards police and prosecutors for reading minds and arbitrarily sticking “hate” labels on behavior that doesn’t really merit unusual concern.