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Freedom of thought as freedom of expression: hate crime sentencing enhancement and First Amendment theory.

I Introduction

On a purely moral or emotive level, the concept of sentence enhancement for crimes motivated by racial or religious hatred(1) possesses substantial appeal to many. Racial and religious prejudice clearly runs counter to our nation's underlying normative tradition,(2) and it therefore seems perfectly appropriate for our government to take steps designed to eradicate this blight on the national commitment to equality. Moreover, to the extent that such governmental attempts are confined to the enhancement of sentences for conduct that is already criminalized, one might assume, not unreasonably, that the competing free speech concerns implicated by laws that directly penalize so-called "hate speech"(3) are rendered irrelevant. One does not, after all, have a constitutional right to commit murder, rape, or assault. Closer examination reveals, however, that sentencing enhancement laws actually implicate core notions of free speech theory. For such laws threaten the fundamental ground rules concerning the relationship between individual and government that inhere in the American political theory of which the protection of free expression is a central element.

Also of possible relevance to the constitutionality of sentencing enhancement laws, purely from a doctrinal perspective, is the Supreme Court's recent decision in R.A.V. v. City of St. Paul.(4) There, the Court unanimously held unconstitutional an ordinance that provided:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.(5)

A majority of the Court, in an opinion by Justice Scalia, rejected the argument that the ordinance regulated only unprotected "fighting words."(6) Noting that "the ordinance goes even beyond mere content discrimination to actual viewpoint discrimination,"(7) Justice Scalia reasoned that government cannot provide advantages to one side of a debate.(8) Although R.A.V. may be distinguishable from the sentencing enhancement question because, unlike sentencing enhancement, expression was involved on at least a technical level in R.A.V., it is arguable that Justice Scalia's logic extends well beyond its factual context.(9)

In light of the widespread attention that sentencing enhancement laws are currently receiving,(10) it is appropriate to explore the constitutional issues to which such laws give rise. In undertaking this exploration, however, it soon becomes apparent that a constitutional analysis of sentencing enhancement laws actually triggers a far more profound examination of the fundamental theoretical underpinnings of free speech theory. My position is that whether one chooses to view it as a catalyst or as a fundamental element, protection of freedom of thought is essential to the free speech right --that if government is permitted to invade the sanctity of the individual's private social and political attitudes, the right of free speech is rendered basically meaningless. Ironically, then, one of the greatest threats to freedom of expression derives from governmental restrictions on something other than classic communicative activities.

If one accepts the essential nature of the freedom-of-thought postulate, the constitutional implications for sentencing enhancement laws should be clear. Such laws criminalize no conduct that had not previously been made criminal. All they do is punish the holding of political or social attitudes that the government deems offensive or unacceptable. Hence, these laws represent a serious threat to the values of free expression, despite the fact that they fail to penalize directly any communicative activity.

The first section of this article examines the centrality of freedom of thought to the underlying theory of free expression.(11) The following sections explore the doctrinal and textual foundations for the freedom-of-thought postulate, giving particular attention to the doctrinal implications of the R.A.V. decision.(12) The final section focuses on the constitutional difficulties for sentencing enhancement laws to which the freedom-of-thought postulate gives rise."

II Freedom of Thought and the Theory of Free Expression

A The case for the centrality of freedom of thought

The theoretical argument for the centrality of freedom of thought within the system of free expression is twofold: First, the reasons free speech is protected apply with largely equal force to freedom of thought, and second, the protection of freedom of expression is virtually meaningless absent a corresponding commitment to freedom of thought. The first point can be established, at least on an intuitive level, by pointing to two hypotheticals. First, assume that a person accidentally drops his diary, and it is found by a police officer. Assume further that the officer reads in the diary its owner's distaste for the policies of those currently in power. Could anyone even imagine that the government could, consistent with the First Amendment, punish the diary's owner for holding such views? Yet no communication to a third party has been made; we can readily presume that the diary's owner intended never to share his thoughts with anyone else. We therefore intuitively find what is only an invasion of freedom of thought to be repugnant to, or at least inconsistent with, a system of free expression. Similarly, we would undoubtedly find inconsistent with our commitment to free expression the government's requiring that all citizens attend an "ideological purification" class, even though such a requirement does not by itself restrict anyone's right to speak. Once again, governmental interference with the freedom of thought intuitively appears to violate the freedom of expression.

If one were to attempt to articulate the theoretical rationale behind our intuitive judgments in these hypothetical cases, one would need to return to an examination of first principles. In so doing, one would be able to understand the intertwining of free thought and free speech. Initially, one must recognize the symbiotic relationship between freedom of expression and a societal commitment to the concept of popular sovereignty. It would, I suppose, be physically possible to adopt a principle of free expression in a totalitarian society, or to establish a self-governing society without simultaneously adopting a commitment to free speech. However, neither of these societies is likely to function effectively in the manner intended.

Establishment of a totalitarian society simultaneously evinces a fundamental disrespect for the judgment of its citizens and a devaluing of the need for the personal growth that inherently flows from exercise of the power to control one's life.(14) A commitment to free expression, on the other hand, represents the exact opposite. Such a commitment necessarily presumes that individuals may decide for themselves what to say, what to hear, and what to believe.(15) On a purely practical level, allowing individuals to say or hear whatever they want could not but threaten a totalitarian government's hold on its citizens since a meaningful commitment to free expression would presumably require that the government allow even intense criticism of the government itself. Moreover, to the extent that the totalitarian government is premised on a particular abstract ideology, adoption of a system of free expression would necessarily allow citizens to challenge that ideological commitment. Of course, the totalitarian government could proclaim a commitment to freedom of expression only in those instances in which the expression was consistent with its particular ideological perspective, but to describe such a system as "free" would be truly Orwellian.

A totalitarian government, by definition, intends to stay in power, regardless of the wishes of its citizens. Under such circumstances, it can seek to maintain control either by preventing a large segment of its citizenry from concluding that it should no longer remain in power or through the use of brute force, despite the fact that the citizens reject the government's legitimacy. While totalitarian societies rarely hesitate to employ the latter, unless they are able to accomplish the former, use of the latter to stay in power will at best be difficult and at worst impossible. In short, the most effective means by which a totalitarian government may retain its power is to control the minds of its citizens. To the totalitarian regime, then, any distinction between freedom of thought and freedom of expression is irrelevant. Its ultimate goal is to prevent its citizens from having thoughts that are inconsistent with or that undermine the maintenance of its power. If that situation were to arise, it would not matter how it had taken place. If it had happened because of external communication from others or simply because of an individual's internal thought processes, the result would be equally threatening to the totalitarian regime.

On the other hand, a society committed to the notion of popular sovereignty without a concomitant commitment to freedom of expression makes little sense. As Alexander Meiklejohn explained, a society in which the people are ultimately the governors logically requires a citizenry as fully informed as possible concerning the issues facing government.(16) Restricting expression can only undermine that goal. Nor would it make sense, in a representative democratic society, to allow government to censor expression of opinion that it deems either offensive or wrongheaded. A societal commitment to collective self-determination logically implies that the citizens may choose a course of action which either the government or a select elite considers to be wrong. We have, it is true, chosen to insulate certain fundamental value choices from the simple majoritarian processes by constitutionalizing them. But the initial decision to constitutionalize these values was itself made by a supermajoritarian process, and those decisions always remain open to supermajoritarian alteration through the amendment process.

Thus, all normative policy and value choices must be made subject to the wishes of the citizenry if a society may be definitionally characterized as a democracy--representative or otherwise. To underscore the point, we need only recall that the recently terminated totalitarian societies of Eastern Europe on occasion provided their citizens the "freedom" to choose their leaders as long as the leaders chosen retained the political ideology of those already in power. We knew at the time, of course, that such societies were not "free" in any realistic sense of the term.

If a society retains the ultimate option to choose any political or social course of action, it would be absurd to allow government to prevent its citizenry from hearing or expressing particular points of view.(17) Just as impermissible, however, would be allowing government to penalize the holding of particular political or social viewpoints. If inherent in the structure of a democratic society is the potential for the citizenry to choose any political course of action, the government of such a society logically cannot be allowed to penalize an individual's holding of any political attitude. For by hypothesis, in a democracy the citizenry has the option ultimately to adopt that particular political attitude. More importantly, the freedom to communicate and persuade, so central to a commitment to societal self-determination, is of little use if both the communicator and listener can be punished for having the thought, either before or after it is communicated. Thus, the freedoms of expression and thought are inextricably intertwined: Attempting to protect one without the other will inevitably prove to be impossible.

In addition to this logical argument against the drawing of a dichotomy between freedom of thought and freedom of expression, there exists a strong practical argument for the centrality of freedom of thought in such a political system. Citizens cannot be expected to exercise and develop the intellectual and decision making capabilities required to make life-affecting decisions(18) if they must live in constant fear that the government will penalize them for holding particular social or political attitudes. The democratic system, of which the First Amendment is such an essential element,(19) cannot be expected to thrive--or even survive--under such circumstances.

B Placing the Freedom of Thought Within the Framework of Free Speech Theory

Free speech scholars have differed dramatically over the underlying rationale for the protection of the freedom of expression.(20) I believe that most would nevertheless concur as to the centrality of freedom of thought in the system of free expression. Surely, those scholars, such as myself,(21) who believe in an individual developmental model of free speech, either in whole or in part,(22) would logically have to place great value on the freedom of thought. For absent governmental respect for the sanctity of an individual's thought processes, any meaningful individual self-realization is impossible.

Even most communitarian-based theories of free speech should also place a value on the freedom of individual thought--at least to the extent that those theories are ultimately premised on some notion of popular sovereignty or

societal self-determination. A free speech theory, such as Alexander Meiklejohn's,(23) that places little or no weight on the independent value of individual development(24) yet recognizes the centrality of free speech to democratic theory must favor the development of citizen thought processes. To be effective citizens in a democratic society, individuals must be able to exercise free will--an impossibility if governmental thought control is permitted.(25)

The only communitarian free speech theories which could logically tolerate the penalization of "wrong thinking" are those that I have referred to in previous writing as "external-objective" models.(26) These are theories that reject the fundamental notion of societal self-determination in favor of a commitment to some predetermined set of objectively correct substantive values.(27) Under these models, the community is not allowed to choose its own values, to the extent that those choices differ from the value structure superimposed by those in power.(28) In effect, however, these models presuppose a totalitarian structure, in which the concept of thought control fits quite comfortably.(29) They therefore have no legitimate role to play in the debate over the role of free speech in a democratic society.

There exists, however, one rather bizarre theory of free speech protection which purports to rationalize freedom of expression as part of a democratic system, yet which simultaneously suggests that the First Amendment should be construed to justify a form of thought control--particularly in the sentencing enhancement context. It is Lee Bollinger's "tolerance" theory.(30) Dean Bollinger rejects the fear of government inherent in classic free speech models. He acknowledges that "a common corollary to [the classic] conception of the state is the belief that the government also constitutes an unvarying threat to the liberties of the citizens, including the liberty of speech. By this vision, the government stands in a perpetually antagonistic and hostile position toward the larger society."(31) He suggests, however, that this argument "is seriously overplayed in twentieth century life."(32) Rather than seeing the government as a threat to free speech values, Bollinger views the government as playing an important role in fostering the true purpose behind free speech protection: "a determination to create a general intellectual character through the creation of a kind of tolerance ethic."(33)

Unlike virtually all previous theorists, Bollinger sees the protection of free speech as simply a means to an end largely untied to speech, and one that apparently could be fostered through other constitutional provisions if the First Amendment did not exist.(34) Rather than fostering traditional self-developmental or self-government values, Bollinger believes that "free speech involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters"(35)--describing this capacity as "tolerance."(36) Because this capacity "has far wider relevance to social interaction than to the narrow pursuits traditionally thought to be advanced by the free speech principle,"(37) Bollinger is effectively employing free speech merely as an instrumental device designed to foster the much broader goal of promoting an attitude of tolerance. In his words, free speech "is one very important means by which the society attempts to deal with that larger problem. In this conception free speech derives its appeal by providing a method of addressing a ubiquitous social incapacity, not just a means of securing protection from that bad tendency for the special activity of speech. . . ."(38)

Perhaps underscoring its general uselessness as a theoretical tool, the "tolerance" theory could arguably be relied upon equally to uphold or to reject government-imposed restrictions on "hate" speech or "hate" motivations. On the one hand, one could reasonably argue that such expression and attitudes are inconsistent with any underlying normative theme of tolerance and therefore not only can but should be penalized and deterred. On the other hand, one might contend that the tolerance principle logically dictates the need to be tolerant even of intolerant attitudes and therefore such restrictions should be deemed to violate the free speech principle. Ambiguity, however, is the least of the difficulties to which the tolerance principle gives rise.

The fundamental problem is that Bollinger has simply missed the free speech boat. He has forgotten the essential element of free speech protection, without which the concept cannot survive in any meaningful sense--what I have referred to as the principle of "epistemological humility."(39) This principle posits that from a governmental perspective (and, it should be emphasized, only from this perspective), there can be no such things as "good" and "bad" speech or "right" and wrong" ideas. If a structure of speech protection permits government to make such judgment, then the only real question is, Who is in power? It is those individuals who will make the determination of which ideas are "right" or "wrong." I dare say the answers would differ dramatically, depending on whether power was wielded by Patrick Buchanan or Catherine Mackinnon.

Our society's commitment to free speech, however, rejects the notion that those in power can regulate expression on the basis of their assessment of right and wrong. Rather, our system is premised on an assumption of a Rawlsian "veil of ignorance:"(40) Rules of behavior are established without knowing who will have power and who will not.(41) Under this "bet-hedging" model, we have chosen not to allow those in power to employ their personal substantive moral judgments as a basis for determining the protection of free speech.(42) Instead, we have adopted a principle of "epistemological humility," which stands as a theoretical rationale for the Supreme Court's long-established and unwavering doctrinal prohibition against viewpoint regulation.(43)

Bollinger appears to have completely missed this vital point. He evinces this total lack of comprehension throughout his analysis. At one point, Bollinger asserts that "[w]e suffer a serious loss when we strip ourselves of the use of legal restraints against speech behavior we regard as socially destructive,"(44) apparently without any hesitation over the problem of deciding who gets to determine which speech is "socially destructive" and which is not. Once again, I imagine that Patrick Buchanan and Catherine Mackinnon would answer that question quite differently. At other points, he all but openly advocates the use of free speech protection as a means of fostering right thinking--an obvious form of mind control.(45) He can do this because he apparently has no qualms about preempting the principle of societal self-determination by making externally derived substantive moral judgments on society's behalf.(46) Such nonsensical solipsism, however, has no place in the structuring of a system of free expression within the broader framework of a representative democracy. Bollinger, like the rest of us, has every right to make his own personal substantive moral judgments about alternative ideas. However, in a system premised on a commitment to society's power to make its own moral choices through processes of representational self-determination, neither he nor anyone else can be given power to censor expression that conflicts with those personal choices.(47) In sum, Bollinger's free speech theory might well support restrictions of 'intolerant" thoughts and attitudes. But his theory is seriously deficient because it evinces a total misunderstanding of the theoretical rationale underlying the classical free speech model(48) and cavalierly ignores the epistemological assumptions inherent in even the most primitive form of democratic theory.(49) It therefore merits little attention from either courts or scholars.

III Freedom of Thought as Freedom of Expression: Issues of Textual Interpretation

Even if we were to agree as a theoretical matter that freedom of thought is essential to the freedom of expression, it does not necessarily follow that the First Amendment should be construed to provide independent protection to the freedom of thought. The first hurdle that might be raised is a textual difficulty: By its terms, the First Amendment protects "speech," press," and "assembly"--not "thought."

To many, textual interpretation raises no problems in constitutional analysis.(50) Either because of principles of hermaneutics(51) or political philosophy,(52) scholars have on occasion asserted that constitutional language is simply irrelevant to the creation of constitutional law. If one were to accept these arguments, one would presumably have little difficulty in transforming the protection of freedom of thought into a rule of constitutional law, as long as one had been persuaded by the normative theoretical arguments supporting such protection.(53) However, I am not one who believes that the barriers of constitutional text may be so easily circumvented.(54) It has long been my position that unless the decisions of the unrepresentative judiciary preempting majoritarian choices are reasonably grounded in the supermajoritarian constitutional text, they have no legitimacy in what is a predominantly democratic society.(55) I have further argued that while text will rarely be free of ambiguity, it is absurd to suggest that in all cases the words of the Constitution are capable of infinite, equally acceptable meanings.(56) Hence, unlike a number of other scholars, to remain intellectually honest I am obligated somehow to rationalize judicial protection of freedom of thought with the text of the First Amendment.

In attempting to attain this goal, I begin my analysis by explaining my understanding of the distinction between "textualism" and "literalism." Although "textualism" requires an interpreter to ground her interpretation in the provision's wording, it recognizes the need for a holistic, common sense approach to the interpretational question. Unlike 'literalism," which rigidly examines each word in a vacuum, regardless of the impact of the resulting interpretation on the overall sense of the text,(57) "textualism" focuses primarily on the wording in the context of the overall goal of the provision. In short, while textualism focuses on the forest, literalism focuses on the trees.(58)

Because the specific wording of the First Amendment fails to mention the concept explicitly, a literalist would presumably be forced to conclude that the First Amendment cannot be interpreted to protect freedom of thought. A textualist, however, could properly accept "ancillary" textual doctrines--in other words, doctrines which, though not explicitly grounded in text, are necessary to attain the social or legal goal manifested in the text. For example, a textualist can accept the extension of First Amendment protection to a right of political association,(59) or to a right of expressive anonymity,(60) even though by its terms the First Amendment's text expressly protects neither. This is because the Supreme Court has quite reasonably concluded that both extensions of the text are necessary in order to make the right that is guaranteed in the text meaningful. Similarly, although by its terms the Fourth Amendment(61) fails to provide that evidence seized in violation of its requirements must be excluded at trial, the Supreme Court has concluded that absent such an exclusionary rule, the Amendment's protection would be ineffective.(62) It is important to note that the Fourth Amendment on its face provides absolutely no means of enforcing its directive, yet to infer from that fact that its drafters intended its edict to be merely advisory(63) would ignore the provision's clearly mandatory language. In light of the usually brief nature of constitutional text,(64) it is not unreasonable to view an interpreting court's role in a manner similar to that of an executive agency's issuance of regulations designed to enforce a statute.(65) Obviously, the statutory text does not, in so many words, specify the content of those regulations; rather, the regulations are designed to implement the statutory directive and to attain the statutory goals. This is exactly what "ancillary" constitutional doctrines are designed to do.

Once one accepts, in the abstract, the legitimacy of such "ancillary" constitutional doctrines, it should not be difficult to accept protection of the freedom of thought as one of those doctrines. As already shown,(66) the freedoms of thought and expression are inextricably intertwined on both theoretical and practical levels. Indeed, apart from textual issues, the idea of protecting expression but not thought borders on the absurd. Thus, problems of textual interpretation should not prove to be insurmountable to the constitutional protection of freedom of thought.

IV Freedom of Thought as Freedom of Expression: Doctrinal Issues

The advantage of being an academic, I have often told my Constitutional Law students, is that you get the opportunity to overrule the Supreme Court every day of the week. The disadvantage is that no one listens to you. Given my academic background, then, it should bother me little if a constitutional theory which I have advocated finds absolutely no support in Supreme Court doctrine. Heaven knows, it has never stopped me before.(67) But surely, it cannot hurt that one's constitutional arguments can be properly grounded in preexisting constitutional doctrine. Hence if one can make a persuasive doctrinal case for the protection of freedom of thought under the umbrella of the First Amendment, so much the better.

The Court has, on occasion, expressly stated that mind control is impermissible under the First Amendment.(68) This assertions, however, was made in the context of challenge to regulation of traditionally protected expression.(69) Yet the Court has, in several instances, extended First Amendment protection to situations when only freedom of thought, and not communication, was involved. In West Virginia State Board of Education v. Barnette,(70) for example, the Court upheld the constitutional right of a school child to refuse to pledge allegiance to the flag.(71) Although the refusal itself could theoretically have been viewed as a form of expression by effectively communicating the student's opposition to the pledge, in context it was quite clear that the communication of some kind of protest was not what the student intended. Rather, her concern was simply the fact that saying the pledge would have undermined her religious beliefs.(72) The case, then, was purely a matter of non-communicated personal conscience, yet the Court found this assertion of the freedom of belief to be fully protected by the First Amendment.(73)

In Wooley v. Maynard,(74) the Court upheld the First Amendment right of a New Hampshire couple to conceal on their license plate the state's slogan, "Live Free or Die"--a saying that the couple found to be inconsistent with their religious beliefs.(75) Here, once again, the Court was not protecting the right to communicate but rather the right not to be forced to communicate. There is no reasonable way to find the activity protected in Wooley to fall within the traditional definitional bounds of protected expression. What was being protected in both Barnette and Wooley, rather, was the sanctity of the individual's personal belief---a sanctity that would have been violated had the individuals in those cases been forced to accept the government's moral and intellectual orthodoxy. In short, these decisions provide a doctrinal foundation for recognition of constitutional protection for the freedom of thought.

An open question of current doctrinal speculation concerns the implications of the Court's recent decision in R.A.V. v. City of St. Paul(76) for the protection of freedom of thought in general and the constitutionality of hate crime sentencing enhancement laws in particular. A majority of the Court, in an opinion by Justice Scalia, rejected the argument that the city's hate speech ordinance (77) regulated only unprotected "fighting words": "What we have here ... is not a prohibition of fighting words that are directed at certain persons or groups ... but rather, a prohibition of fighting words that contain messages of |bias-motivated' hatred. . . ."(78) Noting that "the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination," Justice Scalia reasoned that government "has no such authority to license one side of a debate to fight free style, while requiring the other to follow Marquis of Queensbury rules."(79)

Obviously, the ordinance invalidated in R.A.V. is not identical to a sentencing enhancement law. While the St. Paul ordinance regulated nothing more than purely communicative activity, a sentencing enhancement law's immediate impact is on unprotected physical conduct. Yet a strong argument may be fashioned that R.A.V. nevertheless dictates the unconstitutionality of sentencing enhancement laws. The key point in this analysis is that "fighting words" are deemed to be beneath First Amendment concerns and presumably could therefore be totally prohibited, yet the R.A.V. Court held that selective prohibition of the use of fighting words on the basis of political or social viewpoint was unconstitutional in any event. Similarly, one could reasonably posit that while the conduct directly regulated by sentencing enhancement laws is not protected First Amendment activity, the selective treatment of such conduct on the basis of underlying political viewpoint should also be deemed unconstitutional.

The response could be made, and there is admittedly some supporting evidence in Justice Scalia's opinion," that even though not generally protected under the First Amendment, "fighting words" nevertheless remain, at least as a technical matter, pure 'expression." They are thus distinguishable from pure conduct, which is definitionally outside the First Amendment's scope. In other words, the category of "fighting words" is still technically "speech," and it is for that reason alone that it cannot, under the First Amendment, be regulated selectively on the basis of political or social viewpoint. This logic breaks down, however, when we recall that, whether technically characterized as "speech" or not, "fighting words" are categorically deemed to be beneath First Amendment concerns. For purposes of the First Amendment, then, "fighting words" are not "speech." The unconstitutionality of the St. Paul ordinance in R.A.V., then, cannot derive from the fact that, in a purely technical sense, "speech" was being regulated. Rather, it was because the regulation turned on the acceptability of an individual's political attitudes that the law was unconstitutional.(81) Viewed in this light, it does not matter whether the law's immediate impact is on unprotected verbal activity, as in R.A.V., or on unprotected conduct, as in sentencing enhancement laws. In both situations, either the existence or severity of regulation turns on the individual's personal political attitudes. Whether one wishes to view this as a First Amendment matter because it regulates the freedom of thought or as a form of equal protection violation(82) is of little consequence. R.A.V., then, can reasonably be taken to stand for the proposition that selective governmental treatment on the basis of political attitude is unconstitutional.(83) Thus, it is likely that the majority opinion in R.A.V. should be construed to adopt the concept of freedom of thought as a core principle of American constitutionalism.

In Dawson v. Delaware,(84) decided last term, the Court in dictum indicated that it was not unconstitutional for a sentencing judge to take into account a defendant's membership in a racist organization in fashioning a sentence.(85) This dictum, stated before R.A.V. was decided, is puzzling in a number of respects. First, the Court clearly did not intend to suggest that the defendant's membership was not protected First Amendment conduct; on the contrary, it readily conceded that it was.(86) Amazingly, the Court appeared to proceed on the assumption that allowing the judge to take this fact into account in determining the sentence somehow failed to "abridge' that First Amendment right.(87) Once the Court concedes that membership in the racist organization is protected by the First Amendment, however, it is absurd to suggest that allowing the defendant's sentence to be enhanced because of that membership does not penalize the exercise of the right. Yet that is exactly what the Court seemed to be saying.

Perhaps the Dawson dictum should be construed simply to mean that in making a sentencing determination in an individual case, a judge had traditionally considered a totality of the unique circumstances, and therefore that the exercise of such individualized discretion does not run afoul of any constitutional right.(88) To be sure, such a conclusion would represent a bizarre distortion of reality. Nevertheless, as so construed Dawson would still fall far short of implying the constitutionality of a generalized, non-discretionary legislative directive that sentences shall be enhanced. For example, I cannot imagine that the Dawson Court would have upheld a state statute providing that a defendant's membership in a racist organization would automatically result in an increase in sentence. Thus, as flawed as the Dawson dictum may be, it is unlikely that even if one were to assume its correctness it would have any relevance to the constitutionality of sentencing enhancement laws.

V Sentencing Enhancement Laws, Freedom of Thought, and the First Amendment

If we conclude that constitutional protection of freedom of thought should be accepted on practical, theoretical, and doctrinal levels, the fact that sentencing enhancement laws do not directly impede or penalize communicative activity cannot automatically insulate them from constitutional attack. Because such laws are adopted for the very purpose of penalizing thought processes and political motivations found to be offensive by those in power, they constitute classic abridgements of the constitutionally protected freedom of thought.

To understand the constitutionally problematic nature of such laws, one need only hypothesize a sentencing enhancement law that penalizes political motivations other than racial or religious prejudice. Assume, for example, that a state legislature enacts a law enhancing the sentence for any crime 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--or, for that matter, a belief in the American Republican Party. We could refer to these enactments as "Sacco and Vanzetti" laws, named for the two men who were sentenced to death, in the view of leading commentators, not for the crimes they had committed but for their political beliefs.(89) If one begins constitutional analysis by assuming that because communication is not being impeded sentence enhancement laws cannot violate the First Amendment protection of expression,(90) then it is logically impossible to find these hypothetical sentence enhancements to constitute First Amendment violations. Yet for reasons already discussed, most of us would probably find such laws to threaten core notions of constitutionally protected freedom.

Apart from the assertion that the First Amendment is definitionally inapplicable, the arguments that have been employed to justify hate crime sentencing enhancement laws against First Amendment attack are wholly unpersuasive. They amount to the following contentions: 1 Racial and religious prejudice presents a unique threat to the well-being of our society, and therefore while sentence enhancement for political or social motivations is generally unconstitutional, it is not so in these particular instances.(91) 2 Crimes motivated by racial or religious prejudice do in fact cause more substantial harm than the exact same crimes when committed without such motivation, because they create terror in the community that lingers long after the particular crime has been committed.(92) 3 If hate crime sentencing enhancement laws are unconstitutional, then so must be prohibition, contained in Title VII of the 1964 Civil Rights Act,(93) of discrimination in employment on the basis of race or religion.(94) 4 It is well accepted in the law that legal consequences may flow from an individual's state of mind.

Examination of each of these assertions demonstrates its inadequacy. As to the first assertion, if there is one issue that R.A.V. resolves, it is that the dangers caused by racial and religious prejudice are not unique for First Amendment purposes. If they were, then hate speech laws, such as the one invalidated in R.A.V., would also have to be constitutional--and we now know that they are not. Nor could they be, if the First Amendment's well-established theoretical and doctrinal prohibition on viewpoint regulation(95) means anything. For example, as morally outrageous and offensive as the suggestion may be to most of us, an individual has a First Amendment right to urge that the Fourteenth Amendment be repealed. As long as an individual's advocacy does not urge immediate illegal conduct which is actually likely to take place, her speech is protected.(96) Once it is held that speech may be regulated for no reason other than that it may convince its recipients, thereby bringing about a social or political result of which those in power do not approve, both the First Amendment and the concept of societal self-determination of which it is a part have been effectively eradicated. For under that reasoning, if either pro-life or pro-choice forces assume control of the government, logically they would be permitted to silence the speech of the other. If supporters of supply side economics take control, they may silence those who advocate raising taxes. If those who urge support of an independent Palestinian state take control, they may silence those who oppose it. The list of possibilities, of course, is endless. In each of these situations, those in power may quite reasonably fear that expression advocating the counter view will convince the listeners, thereby causing "harm"--that is, the bringing about of a political or social result which they deem offensive. Obviously, a system committed to free expression cannot function under these terms. The fear and disgust that would be felt by many if government-ordered segregation were to return is no more intense than the feelings engendered in certain individuals by government's authorization of abortion. In both cases, if we are not to degenerate into some type of totalitarian state, we must ultimately trust the judgment of society's members to make the morally correct choice.

The argument premised on the residual terror of crimes motivated by prejudice has a strong superficial appeal. The theory breaks down, however, when one recalls that hate crime sentencing enhancement laws are designed to eradicate community terror only selectively. Numerous crimes, politically motivated or otherwise,(97) may give rise to such terror, yet sentencing enhancement laws deal only with those that have been motivated by prejudice.(98) The terror arguments, then, cannot avoid the viewpoint selectivity that renders sentencing enhancement laws constitutionally suspect. Thus, like the ordinance invalidated in R.A.V., hate crime sentencing enhancement laws are defective because they are underinclusive.

The remaining two assertions made in support of the constitutionality of sentencing enhancement laws could at best be characterized as secondary since neither rises to the level of constitutional argument. Theoretically, both contentions could be deflected simply by responding that if hate crime sentencing enhancement laws are unconstitutional, then so must be the parallel examples to which defenders point. One need not resort to this logic, however, because neither example is even remotely similar to the case of hate crime sentencing enhancement laws.

There is, for example, all the difference in the world between hate crime sentencing enhancement laws and Title VII's prohibition of employment discrimination. Hate crime sentencing laws punish nothing more than internal motivation; anti-discrimination laws punish a concrete, negative external impact on individuals. Indeed, discrimination need not even be motivated by prejudice for such a practice to be illegal. Conceivably, an employer's motivation may be limited to the economic concern that his business would not be as successful if he hires individuals of a certain race or religion, yet his discriminatory practices will be deemed just as illegal as if they had been motivated exclusively out of racial hatred.(99) Finally, the fact that the law commonly takes mental state into account--for example, in distinguishing among gradations of murder-is completely irrelevant to the constitutionality of sentencing enhancement laws. The unique defect of such laws under the First Amendment is that they penalize the holding of a particular political or social attitude.(100) For it is those attitudes that are so inherently intertwined with the systems of free expression and representative democracy.

The argument focusing on the traditional relevance of state of mind to criminal penalties has been forcefully made by Professor James Weinstein. He notes that [w]e would not think it unusual ... if a judge gave a defendant who killed his rich uncle in order to inherit his fortune a more severe sentence than a nephew who killed his uncle in order to save him further suffering from a painfully debilitating disease. Whatever moral and legal problems may be presented by such disparate punishment, free speech concerns are not among them.(101)

Surely, it is true that state of mind and motivation are traditionally deemed relevant to criminal sentencing. The key difference in the cases of hate crime sentencing enhancement, however, is that in these cases the increased punishment is for a state of mind that extends far beyond the unique circumstances of the individual

situation and penalizes the holding of generalizable political or social attitudes that are deemed to be repugnant. A democratic society cannot function properly if the government may penalize the holding of such attitudes. Professor Weinstein argues that "there is a strong indication that society--whether reasonably or not--finds racial violence especially evil."(102) But the same could no doubt be said for racist speech. Yet R.A.V. doctrinally confirms what free speech theory already dictated: Societal repugnance is not a legitimate basis for penalizing speech. Given the linkage between freedom of thought and freedom of speech,(103) the same must be true for the penalization of repugnant thoughts or attitudes. Thus, while the violence that results from racial strife is surely not constitutionally protected, no additional punishment may be imposed solely for the racial motivation.

Acceptance of the conclusion that hate crime sentencing enhancement laws are unconstitutional, however, does not resolve all of the potential practical issues. Consider a law that, though not framed in terms of motivation, increases criminal penalties for certain narrowly described acts--for example, commission of violence to a person of another race, or the vandalizing of a house of worship, or even the vandalizing only of a synagogue. One could argue, I suppose, that while these laws are framed in terms of non-subjective impact on victims, they constitute merely a different way of imposing penalties for improper motivations. But as long as the laws as written steer clear of penalizing political motivation or attitude--for example, as long as the laws don't turn on whether the vandal drew a swastika on a synagogue or simply wrote "Kilroy was here," or whether or not the vandal was motivated by religious hatred--such laws should quite probably be found constitutional.

VI Conclusion

I should make clear at this point what I am not saying. I am not contending that politically motivated criminal acts are in any manner protected by the First Amendment, or that they should in any sense be condoned. Government has the power--indeed the moral obligation--to protect its citizens from physical harm, whatever the motivation for those acts. But as already noted,(104) hate crime sentence enhancement in no way makes conduct or behavior criminal that was not already subject to punishment.

Moreover, although I would hope that such a disclaimer is unnecessary in a scholarly defense of freedom of thought, I do not intend to suggest personal approval of the expression of bigotry premised on racial, religious, ethnic, gender, or sexual preference hatred. If I may be permitted one moment of personal moral reflection, I find any such attitudes to be offensive and reprehensible, whether they are expressed publicly or merely held personally. I have attempted to convey the intensity of my feelings on the subject to my children, so that they will be better able to resist appeals towards bigotry which they may encounter throughout their lives. But anyone who has devoted substantial thought to issues of freedom of expression knows that a system that protects only expression which we find morally or politically acceptable will soon disintegrate. For such a system rejects the essential "epistemological humility"(105) on the part of the government that lies at the core of any commitment to free speech.(106) As dangerous and offensive as I find any expression of bigotry, I fear much more any attempt by government to control the minds of its citizens.


This article grew out of testimony delivered by the author to the Subcommittee on Crime of the Judiciary Committee of the United States House of Representatives on July 29, 1992, concerning the constitutionality of the proposed Hate Crimes Sentencing Enhancement Act of 1992, H.R. 4797. The author would like to thank Andrew Goldman of the Class of 1994 at Northwestern Law School for his valuable research assistance. He would also like to acknowledge research support from the Could Fund at Northwestern Law School. (1) There exist several versions of hate crime sentence enhancement laws. For example, H.R. 4797, proposed in Congress in 1992, would enhance sentences for federal crimes that were "motivated by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, national origin, ethnicity, gender, or sexual orientation of another individual or group of individuals." On the other hand, the Anti-Defamation League model statute, already enacted in several sates, provides: A. A person commits the crime of intimidation if, by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual or group of individuals he violates section -- of the Penal Code [insert code provision for criminal trespass, criminal mischief, harassment, menacing, assault and/or any other appropriate statutorily proscribed criminal conduct]. B. Intimidation is a -- misdemeanor/felony [the degree of criminal liability should be made contingent upon the severity of the injury incurred on the property lost or damaged].

Professor Weinstein's article appearing in this issue focuses exclusively on the ADL model statute. Weinstein, First Amendment Challenges to Hate Crime Legislation: Where's the Speech? 11 Crim. Just. Ethics 6 (1992). (2) See U.S. Const., amend. I, cl. 1 & 2; amend. XIV, [Section] 1; Brown v. Bd. of Educ., 347 U.S. 483 (1954); Sherbert v. Verner, 374 U.S. 398 (1963). (3) See generally Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320 (1989); Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133 (1982). (4) 112 S. Ct.2538 (1992). (5) Id. at 2541. (6) Id. at 2547. (7) Id. at 2548. (8) Id. (9) See discussion infra at 36. (10) See, e.g., The Hate Crimes Sentencing Enhancement Act of 1992, H.R. 4797 102d Cong., 2d Sess. (1992); Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Sentencing Laws, 39 U.C.L.A. L. REV. 333 (1991); Neuborne, Ghosts in the Attic: Idealized Pluralism, Community and Hate Speech, 27 Harv. C. R..-C. L. L. Rev. 371 (1992). (11) See Section II,infra. (12) See Sections III, IV, infra. (13) See Section V, infra. (14) As John Stuart Mill commented in reaction to the suggestion of the possibility of a benevolent dictatorship, "What sort of human beings can be formed under such a regime? What development can either their thinking or their active faculties attain under it?" J.S. Mill, Considerations on Representative Government 203 (1882). Mill argued that failure to engage in the political affairs of the nation results in the stunting of an individual's intellectual growth.

I have discussed this issue in more detail in M. H. Redish, Freedom of Expression: A Critical Analysis 9-86 (1984); Redish & Lippman, Freedom of Expression and the Civic Republican Revival in Constitutional Theory: The Ominous Implications, 79 CALIF. L. Rev. 267 (1991). (15) See generally sources cited in note 14, supra. See also T. Emerson, Toward A General Theory of the First Amendment 4 (1966), arguing that in a democratic society "[t]he natural end for man ... is the realization of his distinctive potentialities as an animal with a power of mind or conscious life." (16) See A. Meiklejohn, Political Freedom 27 (1960), suggesting that "[t]he principle of the freedom of speech springs from the necessities of the program of self-government.... It is a deduction from the basic American agreement that public issues shall be decided by universal suffrage." (17) See Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189 (1983). (18) See sources cited in note 14, supra . See also Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964 (1978); Scanlon, A Theory of Freedom of Expression , 1 Phil. & Pub. Affairs 204 (1972). (19) See generally A. Meiklejohn, supra note 16. (20) Compare M. Redish, Supra note 14, with Baker, Realizing Self-realization: Corporate Political Expenditures and Redish's The Value of Free Speech, 130 U. PA. L. REV. 646 (1982). (21) See sources cited in note 14, supra. (22) Some scholars, such as Professor Emerson, have seen individual development as one of several values fostered by free expression. See generally T. Emerson, the System of Freedom of Expression (1970). (23) See A. Meiklejohn, Supra note 16. See also Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971). (24) See A. Meiklejohn, supra note 16, at 55. (25) See discussion, supra, at 31. (26) Redish & Lippman, supra note 14, at 284. (27) See, e.g., Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539, 1550 (1988) (asserting the possibility of societal determination of "substantively right answers"); id. at 1543 (discussing concept of "objectively bad" preferences). (28) See the discussion in Redish & Lippman, supra note 14, at 284-92. (29) See discussion supra at 31-32. (30) L. Bollinger, The Tolerant Society (1985). (31) Id. at 77. (32) Id. at 79. (33) Id. at 124. (34) Id. at 10. (35) Id. (36) Id. (37) Id. (38) Id. at 107. (39) Redish & Lippman, supra note 14, at 279-82. (40) See J. Rawls, A Theory of Justice 136-42 (1971). (41) See Redish & Lippman, supra note 14, at 279. (42) Id. (43) "[T]here is," the Supreme Court has stated, "no such thing as a false idea." Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). See discussion supra at 31-32. (44) L. Bollinger, Supra note 30 at 72 (emphasis added). (45) Id. at 122-23. (46) See id. at 38. (47) It is, of course, true that the First Amendment is by its nature countermajoritarian. In that sense, it acts as a limitation on democracy, even though it is paradoxically designed to foster democratic principles. That, however, is simply the nature of a constitutional democracy. (48) See L. Bollinger, supra note 30, at 38. (49) See discussion supra at 33. (50) See, e.g., Levinson, Law as Literature, 60 Tex. L. Rev. 373 (1982). (51) See id. (52) See, e.g., Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980). (53) See discussion supra at 31-32. (54) See generally Redish & Drizin, Constitutional Federalism and Judicial Review: The Role of Textual Analysis, 62 N.Y.U. L. Rev. 1 (1987). (55) Id. at 15-17. (56) Id. at 23-28. (57) For an illustration of "literalism," see the linguistic analysis of Article III of the United States Constitution advocated in Amar, A Neo-Federalist View of Article III. Separating the Two Tiers of Federal Jurisdiction, 69 B.U. L. REV. 205 (1985). (58) For a more detailed examination of the distinction, see Redish, Text, Structure, and Common Sense in the Interpretation of Article III, 138 U. Pa. L. REV. 1633,1635-41 (1990). (59) See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). (60) See, e.g., Talley v. California, 362 U.S. 60 (1960). (61) U.S. Const., amend. IV: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the Place to be searched, and the persons or things to be seized." (62) Mapp v. Ohio, 367 U.S. 643 (1961). (63) This is the position that Learned Hand at one point urged in interpreting the Bill of Rights. See L. Hand, The Bill of Rights (1958). (64) See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (Marshall, C.J.): A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. (65) A good illustration is the Internal Revenue Service Regulations, promulgated to enforce the Internal Revenue Code. (66) See discussion supra at 31-32. (67) See, e.g., Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 Yale L.J. 71 (1984) (criticizing long-accepted abstention doctrines). (68) See, e.g., Stanley v. Georgia, 394 U.S. 557, 565 (1969): "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." (69) Stanley, for example, concerned an individual's right to possess obscene matter in his home. (70) 319 U.S. 624 (1943). (71) Id. at 642. (72) Id. at 629. (73) Id. at 642. (74) 430 U.S. 705 (1978). (75) Id. at 717. (76) 112 S. Ct. 2538 (1992). (77) Id. at 2547. (78) Id. at 2548. (79) Id. (80) Id. at 2544 (81) Id. at 2549. (82) U.S. Const. amend. XIV, [Section] 1. On occasion, The Supreme Court has blended First Amendment and equal protection analysis. See Police Dept. v. Mosley, 408 U.S. 92 (1972). See generally Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1975). (83) 112 S. Ct. at 2250. (84) 112 S. Ct. 1093 (1992). (85) Id. at 1097. (86) Id. at 1096-97. (87) Id. at 1097. (88) Id. (89) See generally F. Frankfurter, The Case of Sacco and Vanzetti (1954). (90) See discussion, supra, at 34. (91) See Testimony of Floyd Abrams before the House of Judiciary Committee Subcommittee on Crime, on Constitutionality of H.R. 4797, July 29, 1992. (92) See Testimony of Laurence Tribe before the House Judiciary Committee, Subcommittee on Crime, on constitutionality of H.R. 4797, July 29, 1992. See also Weinstein, supra note 1, at 10: "[H]ate crime can have a powerful in terrorem effect, particularly for members of minority groups who historically have been or currently are victims of racist violence." (93) 42 U.S.C. [Section] 2000-2. (94) See Testimony of Bruce Fein and Rodney Smolla before the House Judiciary Committee, Subcommittee on Crime, on constitutionality of H.R. 4797, July 29,1992. See also Weinstein, supra note 1, at 13: "The argument advanced ... for holding [hate crime] legislation unconstitutional on its face leads to the remarkable conclusion that much of the antidiscrimination statutes on the books is also a facial violation of the First Amendment...." (95) See, e.g., Schacht v. United States, 398 U.S. 58 (1970) (invalidating congressional ban on unauthorized wearing of American military uniforms in a manner calculated to discredit the armed forces). See generally Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81 (1978). (96) Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969) (per curiam): "[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (97) An example of a terrorizing crime that was apparently not motivated by political concerns was the Tylenol poisoning in the early 1980s. (98) In her testimony before the House Judiciary Committee, Susan Gellman proposed an alternative statute, rendering the infliction of generic terror a crime, wholly apart from the existence or content of political motivation. See Testimony of Susan Gellman Before the House Judiciary Committee, Subcommittee on Crime, on Constitutionality of H.R. 4797, July 29,1992. (99) Note the important distinction between "intent to discriminate" on the one hand and "racially prejudiced motivation" on the other. An employer could quite easily possess the former, without necessarily possessing the latter. (100) It should be noted that an individual's personal attitudes or prejudices may be probative as to whether that individual is actually guilty of a crime of which he has been accused. For example, in the trial of a defendant accused of killing a Jew, evidence of the defendant's prejudice against Jews may be established as a motive for the crime. (101) Weinstein, supra note 1, at 8. (102) Id. at 9. (103) See discussion supra at 31-32. (104) See discussion supra at 30. (105) See discussion supra at 33. (106) See discussion supra at 31-32.
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Title Annotation:Penalty Enhancement for Hate Crimes
Author:Redish, Martin H.
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
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