For years, Indiana was one of just a handful of states without a law specifically banning hate crimes. But it hasn't always been that way.
The truth is, Indiana was one of the FIRST states to outlaw hate crimes in the mid-twentieth century ... a fact that has been largely lost to history.
In 1947 state lawmakers passed what was called the Indiana Anti-Hate Act. One of the very first of its kind in the country.
A portion of the law read like this:
“It shall be unlawful for any person or persons acting with malice to create, advocate, spread or disseminate hatred for or against any person, persons or group of persons, individually or collectively by reason of race, color or religion.”
“The law was motivated by the right kinds of concerns, but the legislature went about it in the wrong way,” said Steven Smith, a criminal law professor at the University of Notre Dame, who’s one of the few familiar with the 1947 law.
“The Law had had serious first amendment problems. It was used to to entrench on activities that we would consider protected activities; free speech, organizing, protesting activities,” Smith said.
And it was THAT weakness in the law that Alexander DeFields challenged in 1963.
DeFields was from Michigan but moved to the South Bend, Indiana area. He told journalists he was planning to organize for the American Nazi Party.
A newspaper clip from the Indianapolis News on February 4, 1964, reported on it this way:
“DeFields told the board his group wanted to use South Bend as a base of operations to protest the passage of civil rights legislation in congress.”
At the time, the Civil Rights movement was heating up, and John F. Kennedy was assassinated.
The same month that JFK was assassinated in Texas, in Indiana, DeFields was distributing anti-semitic and racist leaflets on cars in St. Joseph County outside of a bowling alley. He was arrested the following February on the charge of ‘Racketeering in Hatred' under the Indiana Anti-Hate Act.
Libby Baker and Judy Shroyer, of the Michiana Jewish Historical Society, were digitizing files when they came across the DeFields case.
“The Jewish Federation of St. Joseph Valley had kept a box of correspondence and newspaper clippings and whatever, having to do with threats and statements that could be considered anti-semitic. And so Libby and I decided to start going through that box to see what we could find,” Judy Shroyer said.
What they found was a sheaf of newspaper articles from DeFields’ case the following year, in 1964.
Here is another excerpt they found from an article in the News-Palladium from Feb. 20, 1964:
“DeFields says he will not only contest the the accusation, but also the constitutionality of the Indiana law passed in 1947, which forbids passing out leaflets or making statements defaming a certain race or religion.”
Also looking to contest the law was a lawyer from the Indiana American Civil Liberties Union. Thomas Shaffer took Defields' case. Here he is remembered by his friend and colleague from the Notre Dame Law School, Rick Garnett.
"He was doing that case pro-bono because of his commitment to the principles of free speech, even for people who were saying things that he didn’t like,” Garnett recalled.
Shaffer died in February, but he left behind thousands of pages of writings, including this reflection on the DeFields case.
“I did not like Nazis and did not like having this man for a client; I said I was defending the Constitution. As is often true in civil liberties litigation, I did not meet my client. I did not think of myself as representing him. My professional influence on my client, if any, was remarkably indirect,” Shaffer wrote in a 1988 law journal article on ethics.
Despite that, Shaffer supported DeFields' motion that the Indiana Anti-Hate Act was unconstitutional. The judge agreed.
And that was that. Indiana Courts mostly stopped using the law after that decision -- and it was quietly taken off the books in 1977. Alexander DeFields died in 1983.
Since 1964, 45 states and Congress have passed hate crime laws. Despite best efforts by advocates in the state, Indiana went on for 40 years without a law protecting individuals from crimes motivated by discrimination.
Until this year, when the governor did sign a law. According to Jessica Gall at the Anti-Defamation League, it wasn't enough.
“As currently written this language could encompass virtually any crime targeting people for virtually any reason. So by mixing in virtually any other crime, along with hate crime, it really does dilute the entire concept of hate crimes,” Gall said.
Gall says because of the new law’s broadness and vagueness, the Anti-Defamation League does not consider it to be an anti-hate law.