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The ADL Hate Crime Statute and the First Amendment.

James Weinstein makes the case admirably for the ADL statute's consistency with the First Amendment.(1) He disposes rather summarily of Susan Gellman's argument that the ADL statute creates a "thought crime."(2) He points out that the statute does not increase punishment because of the defendant's thoughts but because of the defendant's motives.(3) And increasing punishment because of motive is not unusual, unjustified, or unconstitutional.(4) Increasing the punishment for, say, assault because it is committed with a bigoted motive is no more problematic than decreasing the punishment for homicide because it is committed out of mercy.

Having disposed of Gellman's arguments (and the similar ones of the Wisconsin Supreme Court), Weinstein delves more deeply into the issue. A bigoted motive may be used to enhance the punishment for a crime if it is relevant to interests that the state may legitimately consider in setting punishment.(5) What are those interests in the case of bigoted motives?

Weinstein discusses five separate state interests,(6) but the most important ones boil down to tailoring the punishment to the gravity of the crime for either retributive or deterrent purposes. And why is an assault or other similar crime more serious when it is committed with a bigoted motive? One answer, the purely retributive one, is that it reflects a more flawed moral character than would the same crime committed for non-bigoted motives.(7) The other answer is that the crime causes more social harm when accompanied by a bigoted motive, either in terms of added insult to its victims or in terms of the in terrorem effect on others of the victims' race, sex, and so on.(8)

But here matters become much dicier, and the first amendment, put to rest quite easily at the outset, begins to creep back into the picture. Weinstein sees the free speech issues.

The pure retributive justification for enhanced punishment--that hate crimes reflect a more serious character defect than similar crimes committed from non-bigoted motives--would be viewed as supporting punishment for beliefs, which would make the justification quite problematic given the First Amendment.(9) Weinstein does not think that the retributive justification does amount to punishment for beliefs, but he is uncomfortable with it and turns quickly to the other justification, that of greater social harm.(10)

I should say a word about why one might argue that the pure retributive justification is problematic. The retributive argument connects motives accompanying crimes with character traits, which are in turn assessed in terms of the (ill) desert those traits merit.(11) Is punishment for one's character (as reflected in one's acts) punishment for one's beliefs? Surely there is a case that it is. If a character trait consists of certain dispositions to act in particular ways, those dispositions can be translated into a set of beliefs about what is true and what is valuable. If one is punished an extra amount for acting with a bigoted motive, where the justification is the pure retributive one that the bigoted motive reflects a morally depraved bigoted character, then one is being punished the extra amount for being a bigot. And if one is being punished for being a bigot, one is being punished for believing what bigots believe.

So Weinstein is right to feel uneasy about the pure retributive justification. The deep issue here is whether retributivism, with its focus on moral desert, can coexist with liberalism and the primacy it gives to autonomy, even if the crimes to which retributive punishments attach are themselves consistent with liberalism.(12) The First Amendment is an adjunct of liberalism. If liberalism coexists uneasily with retributivism, it would not be surprising to discover the doctrinal manifestation of this uneasy relation in the First Amendment.

Weinstein places primary justificatory emphasis on the extra social harm caused by hate crimes: psychic injuries and harms due to threats of further violence.(13) But here it is obvious that the added punishment is based on the message conveyed by the act coupled with the bigoted motive. In other words, hate crime statutes, if justified by concern over the additional harms of these types, are enhancing punishment based on messages conveyed and thus do raise first amendment concerns.(14)

Happily, however, Weinstein finds that while hate statutes implicate the First Amendment, they do not violate it.(15) They do not do so because they deal with speech that has been excluded from First Amendment protection. Verbal threats of violence are not protected by the First Amendment; it follows a fortiori that neither are the same threats communicated through criminal assaults.(16)

Nonetheless, as Weinstein realizes,(17) the hate crimes statutes are not yet entirely out of the first amendment woods, for there is R.A.V. v. St. Paul(18) to contend with. In R.A.V., the Supreme Court held that government may not single out for proscription certain messages, such as racist messages, even if they fall within a class of messages, such as "fighting words," that can be entirely banned, unless the messages singled out are more harmful than the general class of proscribable messages.

Moreover, the Court in R.A.V. appeared to take the position that this last proviso applies only if the messages singled out are more harmful than other messages with respect to those types of harm that would justify proscribing the entire class of messages.(19) Thus, if both racist and non-racist epithets are equally likely to cause breaches of peace, and both can be proscribed in similar circumstances under the "fighting words" exception to freedom of speech, but the racist epithets also are offensive, the racist epithets may not be selectively proscribed even though they are more harmful. For what makes them more harmful--their offensiveness--would not be sufficient to make them proscribable in light of the First Amendment. And what makes them proscribable--their tendency to provoke a breach of the peace--they share equally with other, non-racist epithets. In other words, messages may be treated differently only if they differ in terms of a type of harm sufficient under the first amendment to criminalize those messages.

This distinction between ways that particular proscribable messages may be more harmful than other proscribable messages explains why, for instance, government may not ban burning the American flag in public despite the fact that it may ban starting fires in public, a ban that would include burning the American flag.(20) The latter ban would be justified by the government's interest in public safety. If government chooses to ban just American flag burning, however, government cannot claim that it is justified in doing so on the ground that it could have banned all public fires. For the only ground government would have for selecting flag burnings to proscribe would be its illegitimate interest in banning an offensive message, not its legitimate interest in fire-related public safety. Likewise, government could not ban all fires in public but increase the punishment if the object burned is an American flag, or ban all draft card burnings but increase the punishment if the burning is meant as a protest against government foreign policy.(21)

How does the hate crime statute fare under the R.A.V. analysis? Weinstein believes it fares well. Hate crimes add psychic injury and threat to the physical harm of assault. And because the medium for the bigoted message--the assault--is itself constitutionally unprotected, Weinstein sees little constitutional difficulty in punishing hate crimes more severely:

Government could constitutionally punish securities fraud more severely than other types of fraud on the theory that such conduct undermines public confidence in financial institutions. Similarly, it could single out for particularly harsh punishment violence that disrupts interstate transportation because such conduct has a particularly disruptive impact on trade. But if government can mete out especially harsh punishment to protect the economy, I am hard pressed to see what constitutional obstacle--particularly what free speech impediment--there is to government enhancing punishment in an attempt to prevent the disruptive consequences commonly associated with racial violence.(22)

The problem here is that hate crimes are not just more harmful than ordinary assaults along the dimension of harm that makes assaults proscribable. The proper analogy is to the statute that bans all fires in public but adds additional punishment if the object burned is an American flag. Hate crimes are more harmful not because they are more assaultive but because they add insulting and threatening messages on top of the physical injury. But the insult at least would not be sufficient to justify proscribing the message, as Weinstein recognizes.(23) The threat, on the other hand, might be proscribable qua threat, despite the First Amendment.(24) How far government can go in proscribing threatening messages before running afoul of the First Amendment is not at all clear.(25) We do know that incitement to violence--which is surely threatening--can be proscribed constitutionally only if the violence is "imminent."(26)

Thus, Weinstein may be correct that hate crime statutes should survive a First Amendment challenge. But R.A.V. is a problem for hate crime statutes, especially if the pure retributive case for enhanced punishment can be viewed as punishment for beliefs, and the justification for such statutes must rest on the social harm hate crimes cause beyond physical injury. The greater power to punish conduct does not include the lesser power to punish it more when it expresses an unwelcome message that could not be banned despite the harms that message might cause.(27)


(1) Weinstein, First Amendment Challenges to Hate Crime Legislation: Where's the Speech? 11 Crim. Just. Ethics 6 (1992). (2) Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. Rev. 333, 363, 380 (1991). (3) Weinstein, supra note 1, at 7-8. (4) Id., at 8. See also Murphy, Bias Crimes: What Do Haters Deserve?, 11 Crim. Just. Ethics 20 (1992). (5) Weinstein, supra note 1, at 8. (6) Id. at 13. (7) Id. at 8. (8) Id. at 8-9. (9) Weinstein does not dispute Gellman's core perception that punishment because of one's beliefs violates the First Amendment. See id. at 8, 9; Gellman, supra note 2, at 362-63. (10) Weinstein, supra note 1, at 10. (11) See R. Brandt, Ethical Theory 465-74 (1959); G. Fletcher, Rethinking; Criminal Law 799-802 (1978); N. Lacey, State Punishment 67-78 (1988); Bayles, Character, Purpose, and Criminal Responsibility, 1 L. & Phil. 5 (1982). See also Arenella, Character, Choice and Moral Agency: The Relevance of Character to Our Moral Culpability Judgments, 7 Soc. Phil. & Pol'y 59 (1990). For retributivist positions that purport to rest on choice divorced from character, see Moore, Choice, Character, and Excuse, 7 Soc. Phil. & Pol'y 29 (1990); Dressler, Reflections on Excusing Wrongdoers: Moral Theory, New Excuses and the Model Penal Code, 19 Rutgers L.J. 671, 692-98 (1988). (12) See Edmundson, Liberalism, Legal Decisionmaking, and Morality |as such,' 10 Oxford J. of Leg. Stud. 505 (1990). (13) Weinstein, supra note 1, at 11. (14) Id. (15) Id. (16) Id., at 11-12. (17) Id., at 12. (18) 112 S. Ct. 2538 (1992). (19) Id., at 2545-49. (20) See Texas v. Johnson, 491 U.S. 397 (1989). (21) See United States v. O'Brien, 391 U.S. 367 (1968). (22) Weinstein, supra note 1, at 13. (23) Id., at 12, citing to James Weinstein, A Constitutional Roadmap to the Regulation of Campus Hate Speech, 38 Wayne L. Rev. 163, 176-80 (1991). (24) I will assume that there is no constitutional difficulty in terms of equal protection with criminalizing threatening messages directed at some groups but not others. See State v. Beebe, 67 Or. App. 738, 680 P.2d 11, appeal denied 297 Or. 459, 683 P.2d 1372 (1984). (25) See State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982) (holding criminal statute punishing threats to be violative of state constitutional right of free speech because overbroad); State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980) (holding criminal statute punishing annoying or alarming speech to be violative of state constitution). See also K. Greenawalt, Speech, Crime, and the Uses of Language 249-59 (1989). (26) See Brandenburg v. Ohio, 395 U.S. 444 (1969). (27) Why the greater power does not include the lesser in many areas of constitutional law is often mysterious and always complex. See Alexander, Understanding Constitutional Rights in a World of Optional Baselines, 26 San Diego L. Rev. 175 (1989). That it does not is, however, beyond cavil.
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Title Annotation:Penalty Enhancement for Hate Crimes; response to James Weinstein in this issue, p. 6; Anti-Defamation League
Author:Alexander, Larry
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
Previous Article:Susan Gellman has it right.
Next Article:Messages, motives, and hate crimes.

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