I recently listened to a new podcast, The Experiment, that explores various subjects in a creative and often illuminating way. In one episode, the show took up the question of hate crimes statutes and presented competing points of view on laws that enhance a criminal defendant’s penalty when the prosecutor can prove that hate—i.e., bias or prejudice—motivated their criminal act. One opponent of hate crimes legislation said that it makes people feel like they have done something helpful but it does not make minority communities safer. That critique is well-taken if the purpose of such laws is to enhance safety. Another opponent, however, said that she opposed hate crimes laws because they punish a person (or enhance the baseline punishment a person receives) for what he said. The assailant who yells a racial slur commits a hate crime, while a different assailant who yells nothing avoids a hate crime penalty enhancement. This opponent acknowledged that the Supreme Court rejected a First Amendment free speech challenge to hate crime laws in Wisconsin v. Mitchell, but she added that she disagrees with Mitchell and continues to believe that hate crime laws penalize free speech. In this column, I aim to explain why the view that hate crime legislation violates the freedom of speech is incorrect and has radical and undesirable logical implications.
The (Erroneous) View that Hate Crime Laws Punish Free Speech
I would not bother writing about this topic if it were just a random, confused person that believed hate crime laws were invalid. But I have heard this argument on a number of occasions over the years, and I hope I can dispose of it here so that at least Verdict readers will know why Wisconsin v. Mitchell could not have reasonably come out any other way. I will explain in what I regard as its best light the view that I intend to attack.
In order to determine that X has committed a hate crime rather than a “non-hate” version of the same crime, we might need to look at what X said either during, prior to, or after the offense at issue. If he used a racial slur during or around the time of the crime, then we are in a position to charge him with a hate crime. The hate crime enhancement could mean that an assault ordinarily carrying a sentence of one year incarceration might instead send the convict to prison for five or six years.
If, instead of assaulting someone, the criminal defendant had simply used the racial slur in a conversation with his friends, he could not have been incarcerated for doing so because the First Amendment protects his right to free speech. The fact that he committed an assault should not change the status of his free speech uttered before, during, or after the offense. He should go to prison for however long an assailant goes to prison, without any extra time tacked on for exercising his freedom of speech, however offensive. In other words, misconduct such as assault is of course a predicate for punishment, but the fact of an assault should not alter the status of the words that a person utters or subject words that would otherwise be protected speech into a basis for adding prison time to a sentence that should be entirely about conduct and not speech.
What is wrong with the view I describe above? Let me say first that I tried hard to articulate in its strongest form the viewpoint with which I will disagree. It would have been easy to make a straw-person argument whose weakness is so evident that rebuttal is hardly even necessary. But I want to practice what I preach, and I tell students to put the best face possible on a contrary argument, if only to make sure that a person who disagrees can see that you really do understand what they’re saying. A surprising amount of frustration in life could be avoided if more people felt understood.
What’s wrong with the above argument begins with the claim that the defendant found guilty of a hate crime suffers a penalty for speech. That claim is simply unsupported. No one is punishing him for using a racial slur, whether it is during, prior to, or after an attack. The extra punishment aims at the motive that drove the defendant to commit his crime. Rather than assaulting someone because the victim cut him off in traffic, for example, the defendant assaulted the victim because she was African American.
Does speech play a role in determining what motivated the assault? Yes, of course. In any criminal proceeding, the speech of the defendant and others helps us figure out exactly what happened. If a defendant yelled racial slurs while assaulting the victim, then it seems logical to infer, absent contrary evidence, that the defendant decided to assault the victim because of the latter’s race.
The distinction here is crucial. It is the difference between using speech as a basis for punishment and using speech as a basis for drawing inferences about the crime. If, for instance, an assailant, while attacking a victim, yelled “I don’t believe in God!,” an atheism enhancement would violate the First Amendment (both the Free Speech and the Establishment Clause components) because it would represent a punishment for his statement regarding atheism.
In the absence of other information, we do not learn anything about the assault itself—specifically anything that might make it worse than it would otherwise be—by hearing him voice his lack of a belief in God. If, on the other hand, he used a slur against Catholics while committing his assault against a Catholic, the words would be probative of his motive for the assault. To the extent that we regard bias-motivated crimes as worse than non-bias-motivated crimes, we could punish him for a hate crime and utilize his anti-Catholic slur as evidence that he committed a hate crime. To say it differently, we rely on his speech as a clue to understanding his assault, not as a distinct basis for punishment.
It is easy to become confused at the distinction I am drawing here, yet the distinction is not only real but unavoidable. At trial, whether civil or criminal, people’s words are frequently going to serve as evidence. I would even acknowledge that that fact might occasionally chill speech. For instance, I might be reluctant to say “I am jealous of Y because Y has so much money” because if Y is robbed, my statement could make it look like I was the robber. Words tell us who might have had a motive to commit a particular crime (thereby solving a “whodunit”), and likewise, they sometimes tell us why a particular person would have committed a crime (solving a “what was done”).
We would have a very different legal system if a criminal defendant’s words—including racial or gender slurs—were inadmissible as evidence on free speech grounds. Whatever chilling effect the evidentiary use of words might have on speech (e.g., Z could conceivably avoid using the “c” word or the “b” word in describing women for fear of being connected to an unsolved hate crime against women), our system treats words and statements as legitimate evidence unless there is some independent basis for excluding them from the jury’s purview. If Z assaults a woman, then, and yells “you are a [‘c’ word] during the assault, those words will properly come into evidence, not to prove a speech crime or a thought crime but to prove that what motivated Z to assault his victim was the fact that she was a woman.
Radical Implications of the Alternative
If you are thinking you might disagree with what I have said so far, consider the following. The entirety of anti-discrimination law rests on the premise that an action that is perfectly legal under most circumstances can become illegal when motivated by an impermissible bias. In other words, unlike hate crimes—which typically take an already-existing crime and elevate its seriousness because of motive—anti-discrimination law takes lawful conduct and makes it unlawful because of what motivated it. This move is arguably more like a “thought crime” than what happens in the hate crimes context.
If an employer decides not to hire you because the employer finds your personality annoying or creepy, there is nothing illegal about that decision or its basis. On the other hand, if an employer decides not to hire you because you are a man, then you can sue and recover damages because of that sex-motivated decision. And add to the mix the fact that the likely means of proving the sex-motivation behind the failure to hire will be statements by the employer such as “I’m so sick of men. No way am I hiring him!” or “That one’s not getting the job. He’s got MPE, male-pattern existence.”
If one truly worried about using speech to prove a party’s motivation (because the evidentiary use of words might chill speech), then we would have to do away with laws prohibiting discrimination. I know that some folks would like to do away with such laws, but the fan club for that reform would likely be relatively small.
I want to acknowledge here that the use of speech as evidence—which is ubiquitous—does carry a real cost for the freedom of speech. If you are thinking of saying something controversial or provocative, you might think again if what you say could either (a) help identify you as the perpetrator of a crime or (b) help prove that something you definitely did was the product of a group-based bias or prejudice. But beyond existing privileges for particular zones of communication (e.g., lawyer/client or psychotherapist/patient), it seems likely that we will always rely on people’s words to help prove what they did and why they did it.
Our words are not simply expressions of free speech but are also very probative evidence of our conduct and our motivations for that conduct. As such and despite the possible effect on what we say, our words will—legitimately, I think—find their way into courtrooms, helping juries figure out what we did, why we did it, and whether we deserve to be punished for it. Hate crime legislation may not “work” in protecting vulnerable groups from bias crimes, and that would be a reason not to enact such laws. But they do not violate any defensible version of First Amendment Freedom of Speech. Wisconsin v. Mitchell was so plainly correct that it could not reasonably have come out the other way.