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Some further thoughts on "thought crimes." (Penalty Enhancement for Hate Crimes)

My thinking on the issue of the constitutionality of sentence enhancement for racially motivated crimes has benefitted enormously from the commentary on my paper, as well as from the commentary directed to other authors. More importantly, this commentary has significantly advanced the inquiry on a topic that is both difficult and important. While agreeing with much of this commentary, there are, nonetheless, many points with which I do not agree. This short reply will be limited, however, to addressing only a few of the more salient points of disagreement.

My major quarrel with Professor Martin Redish is his a priori assumption that "[a]ll [sentencing enhancement laws] do is punish the holding of political or social attitudes that the government deems offensive or unacceptable."(1) Once Redish has put this First Amendment rabbit into the hat, he can, of course, pull it out to show that any justification for hate crime legislation will not meet the extraordinary scrutiny applied in free speech cases. A key question, however, is whether statutes enhancing punishment for racial violence in fact do nothing more than punish someone for "holding ... offensive political or social attitudes" and thus should be subjected to the exceedingly searching scrutiny reserved for laws that prohibit protected expression or punish beliefs. It was to answer this threshold question, not to justify an already documented infringement of speech, that I examined the various justifications for enhancement.(2) For if the government can invoke some plausible justification other than punishing a person for holding offensive beliefs, then it is simply not the case that "all" that the sentencing enhancement does is punish people for having unpopular beliefs. Thus, in failing to deal with the various justifications for enhancement, not as interests sufficient to allow infringement of core First Amendment rights, but as evidence that enhancement serves some other purpose than punishing a person for his beliefs, Redish both begs the question and creates a strawman.(3)

Susan Gellman's piece in this symposium suffers from the same defect. She repeatedly insists that the ADL model statute cannot "survive ... the strict scrutiny analysis" applicable to content-oriented restrictions on protected speech.(4) Again, however, the question on the table is whether enhanced punishment for racially motivated violence is a content-oriented restriction on expression or belief triggering strict scrutiny. It was to answer that question that I inquired, analogously to the Supreme Court's inquiry in United States v. O'Brien(5) and Texas v. Johnson,(6) whether the state has an interest for the enhancement unrelated to suppression of expression.(7) O'Brien, which upheld a conviction for draft card burning, applied quite minimal scrutiny in light of the government's asserted speech neutral interest in efficiently administering the draft--an interest which Professor John Ely has aptly described as "plausible but little more."(8) Thus, O'Brien is far from the "strict scrutiny case" that Gellman claims it is.(9) As for Johnson, the Court subjected the flag desecration statute to "strict scrutiny" only after it had determined that the only state interest implicated in that case was "related to the suppression

of expression."(10)

Just as Redish and Gellman too facilely assume that core First Amendment values are infringed by penalty enhancement for racially motivated crimes, Professor Frederick Schauer too easily assumes away tough First Amendment problems. Schauer is correct in believing that as a doctrinal matter the Supreme Court might well consider retribution a sufficiently speech neutral justification for enhanced punishment.(11) But deeming an omnipresent justification such as retribution to be sufficient proof that a statute is not aimed at expression or belief is troubling as a matter of sound free speech policy. Schauer does not address this concern, nor the similar policy concerns raised by Professor Larry Alexander in his lucid and insightful commentary.(12) Retribution aside, I agree with Schauer that there are several speech neutral justifications for hate crime laws, and his explanation of why deterrence is one of them is thought-provoking.(13) However, perhaps the most powerful and straightforward rationale for enhancement --and one which is reflected in the very name "ethnic intimidation laws"--is prevention of the in terrorem effect often caused by racial violence. This justification is, of course, plainly speech-related and thus raises difficult (although, as I have explained,(14) perhaps not insuperable) First Amendment questions under R.A.V. As a matter of litigation strategy, lawyers defending hate crime legislation in court might want to foreswear reliance on such an obviously speech-related rationale so as not to give their opponents "too easy a target," as Schauer faults me for doing in raising the in terrorem effect justification.(15) But to fully explore whether hate crime legislation is facially consistent with free speech principles this basic rationale cannot be finessed.

So much for disagreement. As I said at the outset of this reply, the commentary served to advance the inquiry on the question of the constitutionality of hate crime legislation. A good example of this constructive engagement is Redish's powerful rejoinder that if enhancement for racial violence is consistent with free speech principles, then the same would be true for enhancement for crimes "motivated out of a pro-choice belief, or a pro-life belief, or a belief in Communism, or a belief in the Irish Republican Army...."(16) The ADL model statute is not cast in terms of crimes committed because of racist beliefs or ideology, but rather requires only that the crime be committed "by reason of" another's race. Still, Redish's hypothetical raises the following interesting question: Why does a small difference in statutory language make such a large constitutional difference--assuming, as I do, that the statutes that Redish hypothesizes would be unconstitutional, and assuming further, as I also do, that, despite the neutral language of the ADL model, most of the crimes to which the ADL enhancement applies would be motivated not just by racial but by racist animus? Thus Redish's hypotheticals raise the question of the constitutionality of laws that selectively punish certain types of illegal political action. The key word here is "political." As Redish correctly points out,(17) it is the often political nature of hate crimes that gives rise to First Amendment concerns not present with enhancement for crimes committed with other types of motivation, such as murder for monetary gain.

Redish's hypotheticals thus serve nicely to refine Gellman's untenably broad claim that the First Amendment flaw with hate crime legislation is that it punishes motive. Thus, as I alluded to briefly in my opening paper,(18) and as Redish's hypotheticals reinforce, a stronger charge is that hate crime laws unconstitutionally discriminate against certain types political activity, illegal though they might be. That some First Amendment principle akin to the one applied in R.A.V. should limit the government's ability selectively to punish certain types of illegal political activity seems obvious. But the proper contours of this principle are not so apparent. For example, exactly what type of discrimination should qualify as a discrimination based on political activity? Certainly a law that enhanced punishment for destruction of bridges if motivated by a desire to institute the dictatorship of the proletariat should qualify as political discrimination, just as enhancement for murder motivated by monetary gain should not. But where on this spectrum does enhancement for crimes motivated by racist sentiments fall? And once it is determined that the law does facially discriminate on the basis of political ideology, to what level of scrutiny should the law be subjected (that is, how strong an interest must the government show in order for the law to be upheld, and how close a fit must there be between the interest to be achieved and the discriminatory means used)? And most significantly for the topic of this symposium, what level of scrutiny should apply to laws, such as the ADL model, which do not in terms single out crimes committed with racist as opposed to racial motivation but nonetheless will apply in almost every case to crimes motivated by race hatred, not mere race consciousness? I have no ready answer to these difficult questions, and for that reason I have not yet reached a definite conclusion about the merits of the argument that hate crime legislation unconstitutionally singles out for enhanced punishment a particular form of illegal political action. I do believe, however, that analogous to the inquiry I engaged in my opening paper, it is crucial to assess the strength of any ideologically neutral justifications that may exist for singling out a particular type of illegal political activity. And it is my tentative conclusion that several of the justifications for hate crime legislation that I and other authors in this symposium have already identified are both sufficiently weighty and ideologically neutral.


(1) Redish, Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First Amendment Theory, 11 Crim. Just. Ethics 29, at 30 (1992). (2) See Weinstein, First Amendment Challenges to Hate Crime Legislation: Where's the Speech? 11 Crim. Just. Ethics 6, at 8-9 (1992). (3) Thus it is one thing to invoke the government's interest in keeping track of those eligible for the draft as evidence that a prohibition against draft card destruction is not aimed at antiwar protests; it is quite another to argue that administrative efficiency is weighty enough to allow the government to punish what it considers to be disloyal speech. Redish deals with the justifications for enhancement solely as though they were offered to justify the punishment of racist ideology, a contention that neither I nor any other commentator in this symposium has made. See Redish, supra note 1, at 37-39. (4) Gellman, "Brother, You Can't Go to Jail for What You're Thinking": Motives, Effects, and "Hate Crime" Laws, 11 Crim. JUST. Ethics 24, at 26. See also id at 27. (5) 391 U.S. 367 (1968). (6) 491 U.S. 397 (1989). (7) Gellman grossly mistates my position when she claims that I posit "there is no First Amendment issue" unless the hate crime enhancement is for an offense that "entail pure speech or expressive conduct." Gellman, supra note 4, at 25. To the contrary, a basic premise of my entire paper is that, even as applied to nonexpressive conduct, a hate crime statute should be subjected to strict First Amendment scrutiny if it cannot be justified by an interest unrelated to the suppression of protected speech. (8) Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis,88 Harv. L. Rev. 1482, 1486 n.1 7 (1975). (9) "In fact, the protection O'Brien ended up extending to the expression there involved is the precise equivalent of the protection that has been extended . . . to economic activity under the so-called 'rational basis test." Ely, supra note 8, at 1486 n. 18.

Let me be clear that in pointing out that Gellman misrepresents the level of scrutiny employed in O'Brien, I am in no way endorsing either the Court's use of such minimal scrutiny or the result of that case. 10 491 U.S. 397,407,410 (1989). Similarly, in United States v. Eichman, 110 S.Ct. 2404 (1990), the Court found that the sole governmental interest asserted in that case for prohibiting flagburning--protection of the "physical integrity of the flag"--was "related to the suppression of free expression" (id. at 2409) and only then proceeded to subject the statute to "the most exacting scrutiny. . . ." Id. Thus Gellman's claim that in both Johnson and Eichman the Court "explicitly recognized that there were other purposes for those laws, unrelated to the punishment of ... expression," (Gellman, supra note 4, at 27) is simply not true.

Gellman rather uncharitably accuses me of seeming to invite "intellectual dishonesty" for urging those who have accepted her argument for the facial invalidity of the ADL statute to reevaluate their position in light of analysis that shows that her argument applies equally to Title VII and other basic civil rights laws. Gellman, supra note 4, at 27. In calling for such reevaluation I was in no way advocating that those who think the ADL statute is unconstitutional should change their minds out of a sense of "political correctness," as Gellman charges. Id. Rather, I was merely using the time-honored reductio ad absurdum technique to suggest that rather than there being some fatal First Amendment flaw in our nation's basic civil rights laws, it is more likely that the fault lies with Gellman's First Amendment analysis. (11) Schauer, Messages, Motives, and Hate Crimes, 11 Crim Just. Ethics 52, at 54 (12) Alexander, The AFL Hate Crime Statute and the First Amendment, 11 Crim. Just. Ethics 49, at 49-50. I do, however, have one small bone to pick with Alexander's critique of my paper. He states that I use the examples of enhanced punishment for securities fraud and violence that disrupt interstate commerce as analogies to enhanced punishment justified by the in terrorem effect of racial violence. Id. at 50. In fact, these examples were analogies to enhanced punishment justified by the fact that "racially motivated violence is often more disruptive than the same violent act without the racial motivation" (Weinstein, supra note 2, at 13); e.g., a racial fight at school--a justification that fits Schauer's category of speech neutral justifications. The analogy I invoked for enhanced punishment justified by the in terrorem effect of racial violence is the severity of punishment for sexual assaults as justified by the terrorizing effect that rape has on women. Id. at 12. (13) Schauer, supra note 11, at 53-54. (14) Weinstein, supra note 2, at 12-13. (15) Id. Whether a state at the litigation stage should be able to abjure a speech-related interest that actually formed part of the legislative purpose and rely solely on speech neutral justifications is an interesting question that finds no definite answer in the case law. (16) Redish, supra note 1, at 37. (17) Id. at 38 (political and social attitudes are "inherently intertwined with the systems of free expression and representative democracy"). (18) Weinstein, supra note 2, at note 40.
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Author:Weinstein, James
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
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