Sherry F. Colb

Are "Hate Crimes" the Same Thing as "Thought Crimes"?: Opponents of the Federal Hate Crime Bill Invoke Free Speech

By SHERRY F. COLB
Wednesday, October 28, 2009

Today, President Obama is scheduled to sign the Matthew Shepard Hate Crimes bill, which will expand the scope of the federal hate crime law to include that committed on the basis of gender, sexual orientation, gender identity, or disability.

Some Republican critics have argued that the hate crime law singles out evil "thoughts" for special punishment and therefore targets "thought crimes," the sort of offense that would be anathema to a people that values the freedoms of speech and thought.

In this column, I examine the argument that hate crime laws punish thought crimes, and situate the contention in the context of criminal law and anti-discrimination law more generally. Ultimately, I conclude that the argument is flawed and that upon close examination, a prohibition on hate crimes does not amount to a thought crime statute.

What is a Hate Crime Law?

Though the phrase is somewhat vague, references to "hate crime" laws generally encompass criminal statutes that identify what would already be criminal conduct and treat that conduct as worse (by federalizing the offense, for example, or by enhancing its penalty) because of its connection to invidious discrimination on the basis of such qualities as race, sex, national origin, or religion.

To give a simple example, a hate crime law might take a garden-variety assault and battery prosecution and allow for harsher penalties if the perpetrators chose to attack the victim because of his race.

The Supreme Court Strikes Down One Type of Hate Crime Law

In 1992, in R.A.V. v. City of St. Paul, the Supreme Court invalidated a bias-motivated crime ordinance on First Amendment grounds. The act alleged in the particular case was the burning of a cross on a black family's lawn. The law in question had prohibited "the display of a symbol which one knows or has reason to know ‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.'"

The state court interpreted the ordinance to reach only "fighting words," a category of speech that the U.S. Supreme Court had previously held was unprotected by the First Amendment. (The Court had defined fighting words as "those that by their very utterance inflict injury or tend to incite an immediate breach of the peace.")

Importantly, in striking down the law, the Supreme Court did not hold that cross-burning is protected speech under the First Amendment. What it held, instead, was that the ordinance under which R.A.V. was charged impermissibly singled out those "fighting words" that expressed discriminatory messages about forbidden topics, a form of content and viewpoint discrimination that the Court concluded violated the First Amendment.

Even though fighting words (and, of course, acts of burning things on other people's property) are not protected speech, the Court said, it is nonetheless unlawful for the government to draw distinctions between different kinds of fighting words on the basis of their content or viewpoint. To do so constitutes illegal censorship, because the law focuses on the communicative element of the conduct.

The Court Provides More Guidance on Hate Crime Laws, After R.A.V.

After R.A.V., then, one could not prohibit some fighting words but not other fighting words, if the basis for the distinction was the disapproved content or viewpoint expressed by those words.

R.A.V. left lawyers and scholars unsure about the scope of the Court's ruling – would all hate-crime legislation now fail First Amendment challenges, because it singled out crime on the basis of expression?

Then, one year later, the Court decided Wisconsin v. Mitchell. In Mitchell, the defendant participated in an aggravated assault by a group of black men and boys on a white boy, chosen as a victim because of his race. The attack left the victim unconscious, and he slipped into a coma. Wisconsin law provided that if a perpetrator, in committing a crime, selected his victim on the basis of her race, religion, color, disability, sexual orientation, national origin or ancestry, then he would be eligible for enhanced "hate crime" penalties.

The Justices unanimously upheld the statute in Mitchell, ruling that the government may single out criminal conduct on the basis of the actor's motivation for that conduct and punish acts that stem from that motivation more severely than otherwise identical acts. We see instances of such enhancements, for example, in capital sentencing schemes that identify a financial motive for murder as an aggravating factor that juries can take into account in deciding whether to impose the death penalty.

What's the Distinction? The Difference Between the R.A.V. and Mitchell Statutes

At first glance, it might seem arbitrary and purely semantic to distinguish between the statutes at issue in R.A.V. and in Mitchell, respectively. In both cases, after all, the law authorized punishment (or more severe punishment) for committing a crime because that crime was connected with race, sex or another prohibited category. Is it not superficial to hold that expressing invidious hatred is protected by the First Amendment, but being motivated by invidious hatred is not?

The distinction makes sense, however, once we examine it more closely. One confusing aspect of the problem is that many hate crimes do both things addressed by the First Amendment cases – they communicate racial hatred (as does, for example, the act of burning a cross on a family's lawn), and they also reflect a motive of racial hatred (because the reason the perpetrators selected the victim family was its members' race). Notwithstanding the overlap, however, it is possible to distinguish between these two features of such acts and, accordingly, to distinguish between the laws that target each feature.

Crimes Expressing Hate, Versus Crimes Reflecting Hate

To the extent that an act is penalized because it expresses or communicates hatred, its regulation implicates the First Amendment. To give one example, the law might prohibit you from committing arson, but it may not prohibit you from committing only that subset of arson that shows contempt for the American flag.

Of course, when racial hatred is involved, many people (including some Supreme Court Justices) would find that a narrow and well-defined law condemning the communication of racial hatred through threatening action (like cross-burning), if properly tailored, would survive First Amendment scrutiny. The majority's ruling in R.A.V., however, was that a state law may not single out active expressions of racial hatred for special punishment, any more than it could single out expressions of opposition to the country or its policies (through flag burning) for special punishment.

Given that legal principle, the question is how the special punishment of racially motivated crime is in any way different from the special punishment of expressions of racial hatred. Doesn't illicit motivation come from the brain and therefore represent a thought crime? If anything, isn't it worse to punish a person for the thoughts motivating her actions, than it is to punish her for the expressive content of her actions? The latter at least inflicts a concrete injury with its message; the former is completely internal, is it not?

The reason to answer this question "no" is both logical and practical. From a logical point of view, there is an important distinction between thoughts (e.g., "I dislike that group") and motives for actions (e.g., the hatred of a group, which drives the killing of a member of "that group"). Motivation is inextricably linked to action, in a way that thought alone is not.

Hypothetical Cases Show the Difference Between Thought Alone and Thought as Motivation for Action

To take one example, consider a person who attacks a Catholic man and also hates Catholic men, but who selects his victim for non-religious reasons, such as the latter's cutting him off in traffic. Such a perpetrator will not (and may not) be punished for his hatred of Catholic men (To punish him for that would represent the prosecution of "thought crime.") Now consider another person, who attacks a Catholic man because he is Catholic. The latter person is actually doing something quite different from the former – and many would say that he is doing (and not just thinking) something worse.

Consider, now, a third person, who robs a drug store to get life-saving medicine for his children. We might view such an act, though illegal, to be morally distinct from that of a fourth person who robs the same drug store because he wants to cook methamphetamines for a weekend party. We might even excuse the third person as having acted under a kind of duress, because of the nature of his motivation. And in the death penalty area, we view some motivations (such as financial ones) as permissible aggravating factors that can mean the difference between a sentence of death and one of life imprisonment.

The reason for a perpetrator's actions can therefore matter a great deal in assessing the depravity of those actions, regardless of whether or not the perpetrator wishes to send a message with what he does. To state this differently, the aspect of conduct that permissible hate crime legislation targets is not the expression of ideas but the driving motivation behind the crime, because some motivations are rightly considered more culpable than others.

Anti-discrimination Law Similarly Focuses on Particular Motivations for Action

To put these arguments into a familiar context, consider anti-discrimination law. A law that prohibits an employer from firing an employee on the basis of that employee's race is singling out one kind of reason for acting (race-based motivation) and differentially penalizing actions taken for that reason, by permitting the terminated employee to sue the employer for employment discrimination. When anti-discrimination law does not apply, by contrast, an employer may generally fire people "at will," for any reason or for no reason at all.

This provides an interesting contrast with hate crime sentencing enhancements, which operate on conduct that is already criminal. By comparison, anti-discrimination law takes conduct that is otherwise entirely legal (firing an employee within an at-will employment arrangement) and designates that conduct as illegal precisely because of its motivation. The only difference between what is legal and what is illegal, in other words, is the motivation – what opponents of hate crime legislation characterize as merely the thought in the actor's mind.

Yet opponents of the recent hate-crime bill have not raised this issue with respect to anti-discrimination law. Quite to the contrary, they have in general been the same people who consistently oppose affirmative action on the ground that it unfairly discriminates against white men.

This means that when an employer or academic institution fails, respectively, to hire or admit a white male applicant because he is not a minority group member or a woman, some of the same people (typically, Republicans) who oppose the hate crime law believe an injustice has occurred and are prepared to litigate, under either constitutional or statutory anti-discrimination principles, to hold the employer or school accountable for its improperly motivated behavior. In other words, they are happy to look at motivation – and to punish it – in a racially-motivated decision not to hire a white man, but they refuse to look at motivation – and to punish it – in a sexual-orientation-motivated decision to attack, say, a gay man.

Why Would Those Who Happily Look to Motivation in the "Reverse Discrimination" Context Oppose the Hate Crimes Bill?

It appears, then, that those who assert that the hate crime bill represents a prohibition on "thought crime" either do not understand or do not truly believe what they are saying. In other contexts, they are comfortable and even enthusiastic about condemning the behavior of actors whose reasons and motivations offend them. And this is true even in areas in which, absent the relevant motivation, the conduct would – unlike in the hate crime context – be perfectly legal (such as the area of at-will employment).

If opponents are not truly of the view that hate crimes are "thought crimes," however, what explains the opposition?

As with any attempt to identify motive, my efforts to explain conservative opposition to the hate crime bill's expansion may turn out to be mistaken. My hypothesis, however, is that those who dislike gay people (one of the groups whose status was added in the hate crime bill amendment, under "sexual orientation") might not like the idea of singling out crimes committed on the basis of the victim's perceived homosexuality for more severe punishment. Such opponents might, in fact, view an action that is taken out of animus toward gay people to be understandable and less worthy of condemnation than other similar crimes.

What basis do I have for making such an accusation? One answer is that the stated rationale ("thought crimes") for opposing the legislation is so weak and unpersuasive, as I explained above, that it is very hard to believe that those who mouth it truly find it convincing. And when people falsely identify their reasons for doing something, it is likely that the real reasons are less savory and harder to defend.

An unspoken animus toward gay people is the most obvious alternative account of the opposition to including gay, lesbian, bisexual, and transgender people among the groups protected by existing hate crime legislation. And it is also consistent with the religious right's campaign against those who violate traditional ideas about family values (including heterosexual, married, and patriarchal norms).

If I am right in my hypothesis about what has motivated many conservatives' opposition to the hate crime bill, then it is fair to say that by their actions, they are essentially condoning prejudice-motivated crimes against gay men, lesbians, and transgender persons. Such persons (along with disabled individuals and women) are especially vulnerable to hate crimes, because of the prejudice they continue to face. When government officials – including legislators – oppose the protection of such individuals, without offering a plausible account of the basis for their opposition, they effectively express the view, in their official capacities, that hatred of such vulnerable persons is not an especially bad reason for committing a crime, perhaps even a good reason. Such an approach should be anathema in a nation committed to equal treatment of its people.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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