A Stitch in Haste

I'm going to resurrect an old feature here at A Stitch in Haste: highlighting noteworthy publications from the Congressional Research Service.

Today's entry is Constitutional Limits on Hate Crime Legislation (PDF - 6 pages).

Summary:

Federal and state legislators recognize the special concerns and effects of hate crimes. Although there is some federal legislation in place, many states have enacted some form of ethnic intimidation law or bias-motivated sentence-enhancement factors in attempts to curtail hate crimes. Several United States Supreme Court cases provide the framework in which states must legislate to ensure the constitutionality of hate crime legislation. After these landmark cases, the real questions for states involve identifying permissible ways to curtail hate crimes without infringing on any constitutionally protected rights. On the federal level, in light of U.S. Supreme Court cases, the question remains as to what extent Congress can broaden the classes of individuals subject to hate crime legislation. This report discusses constitutional considerations facing both individual states and Congress in enacting hate crime legislation. It will be updated as events warrant.

An excerpt:

Generally, the constitutional distinction boils down to the difference between conduct and speech. If the statute's aim is to punish conduct, then it will generally be upheld; however, if the intent behind the statute is to punish speech, thought, or expression, then courts are more apt to strike down the statute. For example in R.A.V. v. City of St. Paul*, the Court struck down a local ordinance as being overbroad and because the regulation was "content-based," proscribing only activities which conveyed messages concerning particular topics. However, in Wisconsin v. Mitchell**, the Court found that a Wisconsin statute providing sentence enhancement for bias-motivated crimes did not violate a defendant's 1st Amendment right as the statute was directed towards the defendant's conduct and not expression. Most recently, in Virginia v. Black***, the Court found that the 1st Amendment permits a state to outlaw cross burnings done with the intent to intimidate because "burning a cross is a particularly virulent form of intimidation." However, in a separate ruling, the Court found that the Virginia statute banning all cross burnings is facially invalid as it impermissibly shifts the burden of proof to the defendant to demonstrate that he or she did not intend the cross burning as intimidation.

I think Virginia v. Black represents the absolute outermost bound of hate crime jurisprudence: If "intimidation" is a viable criminal offense, then "burning a cross with intent to intimidate" is just another form of "intimidation" and worthy of criminal proscription. But the criminal intent still has to be proven beyond a reasonable doubt. Anything more restrictive than that (e.g., assuming that all flag burnings are meant to intimidate, without a specific showing in a specific incident), cannot withstand constitutional scrutiny. (Note also that this is more of a Fifth Amendment due process issue than a First Amendment free speech issue, though the Black court did not actually analyze the issue in quite those terms.)

---

*505 U.S. 377 (1992)
**508 U.S. 476 (1993)
***538 U.S. 343 (2003)

---

Previous CRS Recommendations:
Same-Sex Marriage -- Legal Issues
Saudi Arabia
The National Debt
Restricting Video Game Sales to Minors
Warrantless Wiretapping
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR