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Editor's introduction.

The recent Supreme Court decision in R.A.V. v. City of St. Paul(1) has tended to overshadow a more complex problem that has been confronting the courts. In R.A.V., following the conviction of a St. Paul (Minn.) resident for planting a burning cross on the front lawn of a black family, the Court was asked to rule on the constitutionality of the ordinance under which the defendant had been convicted, one banning the display of a swastika, the burning of a cross, or use of other symbols that "arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender."(2) The Court's decision has already generated much discussion. It appears to have focussed on a subject-matter restriction in the Minnesota ordinance, in contravention of an equal protection commitment implicit in the First Amendment. In any case, it dealt with conduct that was primarily expressive.

The more complex problem concerns statutes that enhance penalties when conduct that is independently criminal in character has been motivated by racial, religious, or sexual- or gender-based considerations, to take those considerations most commonly involved. Do such enhancements fall foul of First Amendment or other protections, or may they stand as a legitimate exercise of state and judicial discretion? Although some have argued that the recent Supreme Court decision will have a bearing on such penalty enhancement statutes, others believe that it does not, and that the issue of penalty enhancement can stand apart from decisions concerned more centrally with what is predominantly expression.

In 1991, Susan Gellman, an Assistant Ohio Public Defender, published an important article(3) in which she argued that penalty enhancement statutes violate First Amendment and other protections. Gellman's arguments were recently endorsed by the Wisconsin and Ohio Supreme Courts in cases that overturned hate crime convictions. And, following R.A.V., she (along with Martin Redish) reaffirmed her position before a House subcommittee called to consider whether that decision would impact on penalty enhancement legislation.

In her article, Gellman speaks uniformly of the statutes that would enhance penalties for hate crimes as "ethnic intimidation" laws, though she intends this label to cover "violent or harassing offenses motivated by racism, antisemitism, sexism, or other forms of bias" [333]. Their paradigm is a model statute drafted in 1981 by the Anti-Defamation League of B'nai B'rith, and since then adapted or paralleled by over twenty state legislatures. The courts have given them a mixed reception. It is Gellman's contention that such laws are unconstitutional, unwise, and likely to be ineffective.

I Constitutional considerations. Following a brief overview of the development of ethnic intimidation statutes, the purpose of which, she says, is to provide redress not only to those directly attacked, but also to other members of disempowered groups for the added injury that a bias motivated crime works, Gellman turns to the constitutional questions such statutes raise.

She considers three possible ways in which the statutes may be viewed: (i) they "bump-up" the penalty for criminal offenses motivated by bigotry; (ii) they recognize a qualitative difference in criminal conduct that is bias-motivated; or (iii) they identify a new class of speech not protected by the First Amendment. Whichever way they are construed, Gellman considers them constitutionally defective. She suggests four deficiencies.

1 They are vague in important respects, and thus not only fail to provide people with a reasonable opportunity to avoid violating them but open the door to their discriminatory and arbitrary application. It is not clear, for example, whether such statutes are intended to reach cases in which, say, one Jew threatens another in an argument about Yasir Arafat, or one white harasses another for supporting Nelson Mandela, and so on [356]. Nor is it clear what mental state is appropriate to them--whether, for example, the intimidator must "know" that s/he is motivated by bigotry, whether such motives must be under one's immediate control, and whether a person whose motives are mixed should be liable, even if other reasons contribute to the conduct as or even more substantially [356-57]. Gellman acknowledges that more precise drafting might avoid these deficiencies.

Even so, she considers that there is a more subtle problem. If (following (i) above) a suitably specified motive is permitted to enhance an existing non-vague crime, it will run foul of the First Amendment by criminalizing pure thought. But if, on the other hand, it is said that the motive changes the character of the conduct that it prompts (as in (ii) above), it lapses into unconstitutional (Fourteenth Amendment) vagueness, since the resulting conduct is not defined.

2 They are substantially overbroad, and thus chill speech, thought, and discussion. Even though penalty enhancement statutes start from conduct that is on other grounds illegal, Gellman believes that they are susceptible of application to protected activity. Writing of the ADL model statute, she says that although it does not include the making of bigoted statements as an element of the offense, . . . its enforcement must inevitably --and probably exclusively--rely upon defendants' speech and associations for evidence of the motive it seeks to punish. In practical effect, then, the model statute threatens to penalize the speech and associations themselves.... The distinction between the use of the actor's words as the sole --and perhaps the only possible--evidence of an element of an offense, and their use as an actual element of the offense, is so fine as to be often nonexistent [359].

She is not persuaded by the obvious objection that all one needs to do to avoid such consequences is to stay clear of one of the underlying offenses. For, she claims, "chill of expression ... by definition occurs before any offense is committed and even if no offense is ever committed" [361].

3 They criminalize thought, thus violating a basic First Amendment protection. Gellman's argument has two main thrusts.

(a) The questionable constitutionality of punishing motives. The fact that the conduct in question is punishable independently of the motives that propel it does not, Gellman believes, remove the constitutional protective shield that is otherwise guaranteed to thoughts and ideas. Although she acknowledges the relevance of "intent" and "purpose" to criminality (since they enter into the "what" of conduct), she believes that "motive" (which is related to the "why" of conduct) is irrelevant, and has been so regarded by the mainstream of juridical opinion.

(b) Bigotry and the First Amendment. It might be argued that although bigotry ought not to enter into the determination of criminality qua motive, it may be penalized qua nonprotected expression, as defined by Chaplinsky v. New Hampshire.(4) Gellman thinks otherwise. The "fighting words" provision of Chaplinsky would need considerable extension before it could accommodate the bigoted motivations that are envisaged in ADL-type statutes.

Perhaps a new class of nonprotected "hate speech" ought to be created? After all, isn't one of the effects of hate speech the silencing of its objects, thus constricting the "marketplace of ideas"? The trouble with this, Gellman claims, is that "the First Amendment is not simply a device to facilitate the search for truth; it exists to protect the expression of ideas by a minority, including those which may ultimately prove to be |wrong' and harmful, from the pressures of the majority" [373].

As a further possibility, Gellman considers the argument that liberty is only one value, to be weighed against other values, such as equality, and therefore sometimes legitimately sacrificed. Does not "tolerance of bigoted expression for the sake of maintaining social tolerance of unpopular expression ... place the burden wholly upon disempowered groups" [374]? Gellman is unconvinced. To treat First Amendment liberties in this way would depart from the strict scrutiny standard to which exceptions are subject. Moreover, the elimination of bigoted attitudes has not be accepted as a "compelling state interest" that would survive strict scrutiny.

In sum, by enhancing penalties for hate crimes, the state "is not regulating conduct despite its expressive elements, but actually penalizing already proscribed conduct because of its expressive elements ... precisely what the First Amendment forbids" [376].

Can this conclusion be avoided if we understand the statutes in question to be not simply adding a penalty for the motive to penalty already warranted by the underlying crime (under interpretation (i) above), but as criminalizing a distinct form of conduct, compounded out of the underlying conduct and its motivation (as in (ii) above)? Do not hate crimes possess a threatening character not possessed by the underlying conduct--a threat that affects not only their victim but also other members of the victim's group?

Gellman believes, however, that it is not the specificity of the victim's identity that give them this more generally intimidating character, for the same reverberations may be produced by entirely random attacks --for example, the poisoning of bottles of Tylenol [377]. All crimes, in fact, have indirect victims.

4 They deny equal protection, by basing treatment of offenders on the beliefs that they hold and express.

Since equal protection is a Fourteenth Amendment interest, exceptions must be strictly scrutinized to see whether they are "precisely tailored to serve a compelling governmental interest."(5) But though combatting bigotry is a laudable social goal, the promotion of interethnic harmony inter alia by penalizing bigoted motives does not rise to the level of compellingness necessary to pass the strict scrutiny test.

II Policy considerations. Whatever position we ultimately take on the First Amendment issues, there are, Gellman believes, strong policy reasons for refusing to adopt ethnic intimidation statutes. Such statutes will exact significant costs from both society as a whole and the disempowered groups they are intended to protect, and they will do so without commensurate benefits.

1 Costs to society. Because of their limiting or chilling effect, ethnic intimidation statutes will detract from some of the First Amendment's major underlying values: the importance of ensuring that the market place of ideas has available to it the broadest possible range of ideas and expression, the presumption that in a civilized society people are capable of making responsible choices between ideas, and the notion that the state should not function as arbiter of the worthiness of ideas.

To the extent that the state becomes involved in arbitrating between ideas, there is a danger that small encroachments on expressive liberty will be followed by ever larger ones. Indeed, even those few encroachments that are now countenanced by Chaplinsky have been appealed to as a basis for further encroachments. And if such decisions are to be made, who should make them? And using what criteria? Gellman believes that these are questions on which reasonable people will disagree, and that in a free society the toleration of all kinds of ideas is both a value and an indication of the society's strength. Toleration is not the same as acceptance, and the lively refutation of pernicious ideas gives truth the vitality that keeps it from becoming mere dogma.

2 Costs to disempowered groups. Although the social benefits of ethnic intimidation statutes may outweigh their costs, Gellman believes that the costs to protected groups will be very significant. Ethnic intimidation statutes manifest a patronizing and paternalistic attitude, implying the special vulnerability of such groups and their incapacity to "hold their own." In so doing they reinforce the group's differentness. For members of such groups, the effect may be an undermining of self-esteem.

3 The question of efficacy. If the benefits that ethnic intimidation statutes produce are great enough, their costs may be acceptable. But Gellman does not believe that they achieve the ends that supposedly sustain them. There is no evidence of decreased bigotry in states with ADL-type intimidation statutes.

But may not the fact that government has "taken a stand" on an issue as important as this be a significant value in itself? Gellman is skeptical: symbols and gestures may in fact divert us from attending to effective solutions to the problems of bigotry. To the contrary. In some circles it will breed resentment paralleling that evoked by the "teacher's pet."

Education and positive incentives may do much more to eradicate discriminatory attitudes than recourse to criminal law. The latter creates an environment of indignation and evasion. Criminal law is to be seen as a device of last resort. It is an "acknowledgement of defeat in the quest for interethnic acceptance and respect" [391]. To see it as the "quick fix" for an extremely complex social ill is to show scant recognition of the rich resources for social change that are available to a civilized society. Repression and bigotry have the same roots, and the path from one must also be the path from the other--a nurturing of civilizing and civilized attitudes.

The present symposium had its beginnings in a Law School Colloquium at Arizona State University, at which Ms Gellman was invited to discuss her U.C.L.A. Law Review article. Respondents at the colloquium were Professors James Weinstein and Jeffrie Murphy, both of Arizona State University.

In order to further the debate, the Editors of Criminal Justice Ethics invited a number of other legal and First Amendment scholars to offer their responses--to Gellman's initial article, to her respondents, or to other issues raised by the issue of penalty enhancement for hate crimes. We are pleased to have the responses of Ms Gellman, Professor Martin Redish of Northwestern University, Professor Martin Margulies of the University of Bridgeport Law School, Professor Ralph Brown of Yale Law School, Professor Larry Alexander of the San Diego Law School, Professor Frederick Schauer of Harvard University, and Professor James Jacobs of New York University Law School. Professor Weinstein has appended a brief rejoinder.


(1) 112 S.Ct. 2538 (1992). (2) St.. Paul Leg. Code [Section]292.02 (1990). (3) 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 (1991). Bracketed numbers in the text refer to pages in this article. (4) 315 U.S. 568 (1942). Chaplinsky included in nonprotected expression "the lewd and obscene, the profane, libelous, and insulting or |fighting' word--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" (at 571). (5) Plyer v. Doe, 457 U.S. 202, at 216-17 (1982), as quoted in Gellman, supra note 3, at 379.
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Title Annotation:Penalty Enhancement for Hate Crimes; response to Susan Gellman, UCLA Law Review, vol. 39, p. 333, 1991
Author:Kleinig, John
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
Previous Article:Why we should establish a police code of ethics.
Next Article:First Amendment challenges to hate crime legislation: where's the speech?

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