In a recent op-ed published in The Campus, Brendan Philbin cites First Amendment concerns in his opposition to our nation’s hate crime laws. He contends that “the very notion of charging people with hate crimes ... violates one of our most deeply held personal liberties: freedom of thought.” According to Philbin, hate crime laws threaten our civil liberties because they prescribe mandatory increased sentencing based on motive, amounting to what he calls a “legal inconsistency” with near-Orwellian implications. Aside from the potential criminalization of certain beliefs, Philbin raises an additional concern toward the end of his piece that hate crime legislation “punishes people based on others’ emotional damages.” Such contradictions, he concludes, undermine democracy and jeopardize the promises of a fair legal system.
I agree with Philbin that our constitutional rights, particularly those granted to us in the First Amendment, are paramount to the functioning of a just society. Philbin is likewise right to note that we cannot legislate or litigate hate out of existence. Bigoted thought is protected under the Constitution, and so too is bigoted or otherwise inflammatory speech — that is, unless it rises to the level of “fighting words.” As defined in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), fighting words are “those which, by their very utterance, inflict injury or tend to incite an immediate breach of peace.” Even then, penalties are never content-based, but are grounded rather in “essentially a ‘nonspeech’ element of communication.” Citing the majority opinion in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), “The government may not regulate use based on hostility — or favoritism — towards the underlying message expressed.”
As Philbin observes, we do not have hate speech laws in the United States. With respect to freedom of thought, expression, political dissent and the like, Americans have considerable latitude to say what they wish without fear of government reprisal. This brings us to the central question of Philbin’s argument: If the government cannot punish words — or actions, for that matter — based solely on content, what then permits the punishment of motive, an abuse he ascribes to our hate crime laws?
The answer is nothing. Contrary to Philbin’s interpretation, hate crime laws do not punish motive. In the case of a bias-motivated offense, the justification for increased sentencing or penalty enhancement of any kind does not rest in the defendant’s particular bias, which the judge finds especially noxious and therefore worthy of punishment. As upheld by the Supreme Court, the justification rests in solemn recognition of the potential for certain forms of bias-motivated violence to upset the peace and aggravate the deep, most injurious wounds of our cultural memory.
Philbin should consider Wisconsin v. Mitchell, 508 U.S. 476 (1993). In this landmark case, the U.S. Supreme Court overturned the ruling of the Wisconsin Supreme Court, which held that the state’s hate crime statute punished bigoted thought and was overbroad, thereby having a “chilling effect” on free speech. The state court sided with Mitchell, the defendant, who argued that the penalty enhancement statute was invalid because it punished his “discriminatory motive, or reason, for acting.” Regarding the issue of overbreadth, Mitchell argued that Wisconsin’s hate crime statute suppressed an individual’s freedom of expression, given that evidence of a defendant’s “prior speech or associations” might be used to “prove the intentional selection of a victim on account of the victim’s protected status.”
The Supreme Court rejected both arguments. Responding to Mitchell’s first contention, the court determined the statute was aimed at conduct, not motive, which the state had identified as particularly harmful. Delivering the majority opinion, Chief Justice William Rehnquist, a conservative, remarked that bias-motivated crimes are considered “more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.” In this respect, Wisconsin sought penalty enhancement not for punishing certain beliefs, but to grant appropriate redress for crimes that have a reverberant impact on society.
Mitchell’s overbreadth claim was dismissed on two grounds. First, that someone would suppress bigoted beliefs in fear of some distant retribution was “simply too speculative a hypothesis.” Second, the court noted that use of a defendant’s prior speech as evidence in criminal trials is permitted under the First Amendment.
If hate crime statutes were found to punish motive, Philbin’s concerns would be justified. His take on penalty enhancement, however, is erroneous. Furthermore, his suggestion that hate crime protections are granted according to “membership in a particular group” is a bit misleading. Along with equivalent state statutes, federal law defines a hate crime as an offense committed because of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability of any person. Hate crime is an offense against identity, an affront far too severe for so wispy a word as membership. The distinction is semantic, but significant.
