First Amendment Challenges to Hate Crime Legislation: Where’s the Speech?

Criminal Justice Ethics

Volumn 11, Issue 2, 1992, Pages 6-20

  Weinstein, James ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 84953494356     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.1992.9991917     Document Type: Article

References (72)

1. Gellman, Sticks and Stones Can Put You in fail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 Ucla L. Rev. 333 (1991).
2. Id. at 344.
3. One of the ordinances used in the attempt to bar members of the American Nazi Party from marching in Skokie, Illinois. See Collin v. Smith, 578 F.2d 1197, 1199 (1978).
4. While we have rejected the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea, we have acknowledged that conduct may be sufficiently imbued with elements of communication to fall within the scope of the [First Amendment]. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it. Texas v. Johnson, 491 U.S. 397, 404 (1989) (internal quotation marks and citations omitted)
5. see also Wisconsin v. Mitchell, 485 N.W.2d. at 814 n.15 (activity covered by hate crime legislation is not “expressive conduct” protected by the First Amendment).
6. See R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992)
7. United States v. Eichman, 496 U.S. 310 (1990)
8. Texas v. Johnson, 491 U.S. 397 (1989).
9. Gellman, supra note 1, at 363 (emphasis added), quoted in Mitchell, 485 N.W.2d at 812.
10. Gellman, supra note 1, at 362. After this article was prepared, the Supreme Court of Ohio held a law similar to the ADL model to be unconstitutional.
11. See State v. Wyant, 64 Ohio St. 3d 566 (1992). The Ohio Court’s rationale for invalidating the law was the same as that adopted by the Wisconsin Court—namely, that by enhancing a penalty due to the motive of the defendant the statute creates a “thought crime” in violation ofthe First Amendment.
12. Husak, Motive and Criminal Liability, CRIM. JUST. ETHICS (Winter/Spring 1989), at 3.
13. 112 S.Ct. 1093 (1992).
14. Id. at 1095.
15. Id. at 1098.
16. Id. at 1097-98.
17. (relying on Barclay v. Florida, 463 U.S. 939 (1983)).
18. See Texas v. Johnson, 491 U.S. at 406-07
19. United States v. O’Brien, 391 U.S. 367, 377 (1968).
20. I want to also emphasize that I am invoking the expressive conduct test only as an analogy, and am in no way suggesting that racial violence would qualify as expressive conduct under Supreme Court precedent. Even the most expressive form or racial violence—for instance, a beating that is intended to and does convey a particular message to its victim (e.g., don’t come into this neighborhood again) is much further removed from the realm of legitimate public discourse than is the typically symbolic conduct qualifying as expressive conduct (e.g., draft card burning and flag desecration). Thus while it may be appropriate to borrow the step from the expressive conduct cases by which it is determined whether the regulation is aimed at the expressive element of the conduct, it would be singularly inappropriate to apply the remainder of the test to hate crime legislation. Under this test, even if the government shows an interest unrelated to the suppression of speech, this interest is (theoretically at least) balanced against the expressive interests of the person wishing to engage in the conduct. (I say theoretically, because this balancing step has in practice been a mere incantation with no speech protective bite. See Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482 (1975)
21. Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456 (1991)). Thus even though the United States might have had a speechneutral reason relating to the efficient administration of the draft for forbidding draftcard burning, the draft card burner’s interest in effective expression was weighed against this interest (and, erroneously I believe, found wanting).
22. See United States v. O’Brien, 391 U.S. at 381. The potential for making a weak government interest giveway to a person’s interest in symbolic expression, long an important and legitimate formof public discourse, may well be appropriate. Any message conveyed by violence, however, is another matter. Thus if the state can point to interests for enhancing the penaltyforracially motivated crimes that are unrelated to the punishment of abstract beliefs, as Iwill argue that it can, it would be inappropriate to weigh this interest against the expressive interests in engaging in racial violence.
23. See Weinstein, A Constitutional Roadmap to the Regulation of Campus Hate Speech, 38 Wayne L. Rev. 163, 164-90 (1991).
24. See, e.g., J. Murphy, Retribution, Justice And Therapy 223-49 (1979)
25. Moore, The Moral Worth of Retribution, in Responsibility, Character And The Emotions 179-219 (F. Schoeman ed. 1987). Indeed, in some contexts a retributivist ceiling—the concept that a defendant should not be punished in excess of his blameworthiness—is constitutionally required.
26. See Coker v. Georgia, 433 U.S. 584, 597-98 (1977) (in finding imposition of death penalty for rape of adult women to be “disproportionate punishment” in violation of the Eighth Amendment prohibition of cruel or unusual punishment, Court relies in part upon its judgment that rape is not comparable to murder “in terms of moral depravity”).
27. H.L.A. Hart, Law, Liberty And Morality 6 (1963).
28. Hart coined this term to describe Lord Patrick Devlin’s position in his The Enforcement Of Morals (1959) that moral norms can legitimately be enforced regardless of their objective validity to protect the glue that binds the community—a position with which Hart disagrees.
29. See Paris Adult Theater I v. Slaton, 413 U.S. 49, 61 (1973)
30. Bowers v. Hardwick, 478 U.S. 186, 196 (1986)
31. see also Barnes v. Glen Theater, 111 S.Ct. 2456, 2462 (1991) (opinion of Rehnquist CJ., joined by O’Connor and Kennedy, J.J.)
32. Id. at 2467-68 (opinion of Scalia, J.).
33. Thus in Paris Adult Theater the Court was dealing with obscenity, which it had long ago held to be outside the protection of the First Amendment. See Roth v. United States, 354 U.S. 476, 480 (1957). Similarly in Bowers the Court held that there was no fundamental right to engage in homosexual sodomy.
34. In Barnes, however, Chief Justice Rehnquisf s plurality opinion did find the societal interest in maintaining morality sufficient grounds to outlaw nude dancing, which Rehnquist acknowledged qualified as expressive conduct “within the outer perimeters of the First Amendment, though… only marginally so” (111 S.Ct. at 2460)
35. Coker v. Georgia, 433 U.S. 584, 598 (1977).
36. For more on the subject of the First Amendment implications of punishing threats, see K. Greenawalt, Speech, Crime, And The Uses Of Language 90-109 (1989).
37. See R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 2548 (1992) (“messages based on virulent notions of racial supremacy” is speech protected by the First Amendment).
38. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
39. See Weinstein, supra note 20 at 176-80.
40. See generally Hustler Magazine v. Falwell, 485 U.S. 46, 55 (1988) (First Amendment forbids recovery by public figure for intentional infliction of emotional distress caused by publication, unless public figure can also show that the publication contains a false statement of fact made with knowledge of its falsity or reckless disregard as to whether or not it was true.)
41. Professor Robert Post makes this point well in his insightful article The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 603, 662-63 (1990).
42. 112 S.Ct. 2538.
43. Id. at 2541-42.
44. Id. at 2547.
45. Id. at 2543.
46. Id. at 2545-47. The Court acknowledges that government has more leeway to make content-based distinctions “in the context of proscribable speech than in the area of fully protected speech.
47. Id. at 2545. By way of example the Court gives two bases that would support singling out a subset of unprotected speech for special prohibition: 1) “When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable,” id.; and 2) “the subclass happens to be associated with particular ’secondary effects’ of the speech so that the regulation is justified without reference to the content of the speech.” Id. at 2546 (emphasis in original; citations and internal quotations omitted). In these situations the selective proscription is consistent with the First Amendment because “no significant danger of idea or viewpoint discrimination exists.
48. Id. at 2545. The Court acknowledges that there may be other bases for constitutionally singling out subsets of proscribable speech. “Indeed, to validate such selectivity (where totally proscribable speech is at issue) ie may not even be necessary to identify any particular ‘neutral’ basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.
49. Id. at 2547.
50. Id. at 2548.
51. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
52. Gellman, supra note 1, at 368.
53. See, e.g., General Building Contractors Assoc. v. Pennsylvania, 458 U.S. 375 (1982) (holding that 42 U.S.C. §1981, which bars racial discrimination in the making of contracts, requires a showing of an intent to discriminate, and suggesting that all other civil rights provisions stemming of the Civil Rights Act of 1866 so require).
54. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
55. Mitchell, 485 N.W.2d at 817.
56. “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law….” New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964)
57. Mitchell, 485 N.W.2d at 817 (Title VII and similar antidiscrimination statues make “slight incursions into free speech.”)
58. Broaderick v. Oklahoma, 413 U.S. 601, 613 (1973).
59. Id. at 615.
60. Mitchell, 485 N.W.2d at 815-16
61. accord Gellman, supra note 1, at 358-62.
62. It could be argued that epithets used during a fight do not, ironically, qualify as “fighting words” because the use of even the most insulting language could not possibly lead to a fight now that violence has already broken out. But the avoidance of violence is only one of the rationales that the Court gave in finding face-to-face insults to be without First Amendment protection, the other being the prevention of emotional injury. See Chaplinsky, v. New Hampshire, 315 U.S. 568, 572 (1942).
63. For more on the rationale and scope of the fighting words doctrine, see Weinstein, supra note 20, at 185-87 and sources cited therein.
64. E.g., Fed. R. Of Evid. 404.
65. The First Amendment problem of using evidence of a person’s expression, beliefs, or associations is not limited to hate crime prosecutions. In addition to the Dawsoncase discussed in the text accompanying notes 13 to 17, supra, see United States v. Abel, 469 U.S. 45 (1984) (membership in Aryan Brotherhood whose members had sworn to lie for each other used to impeachment defense witness in criminal prosecution)
66. United States v. Giese, 597 F.2d 1170 (9th Cir. 1979)
67. (in prosecution for bombing of army recruiting center, book entitled From The Movement Toward Revolution, which contained fingerprints of the defendant and three co-conspirators, used as physical evidence corroborating association among defendants).
68. See also F. Schauer, 1992 Supplement to G. Gunther, Constitutional Law (12th ed.)
69. Individual Rights In Constitutional Law (5th ed.) 180
70. Quint, Toward First Amendment Limitations on the Introduction of Evidence: The Problem of United States v. Rosenberg, 86 Yale L.J. 1622 (1977)
71. White, The Statutory and Constitutional Limits of Using Protected Speech as Evidence of Unlawful Motive Under the National Labor Relations Act, 53 Ohio St. L.J. (1992).
72. 485 N.W.2d at 809.