Twenty-five years ago, on June 11, 1993, the Supreme Court of the United States ruled unanimously that hate crime laws are not “constitutionally and morally unsound.” Hate crimes are defined somewhat differently from state to state, but may include offenses against victims for reasons of race, religion, gender, sexuality or other personal characteristics. For example, a gay-bashing might be considered a hate crime in one state, but not in a neighboring state.
While the eventual fate of such laws is still uncertain in a fast-changing society, at least for now the constitutional debate should be ended.
It is critical to distinguish hate speech from hate crimes. Under American laws, even such noxious sentiments as those promoted by the Ku Klux Klan, the Nazis or other hate groups are not illegal as such. Americans are free to believe and express whatever ugly opinions they want. (By contrast, in Germany open expression of Nazi opinions or display of Nazi symbols is illegal.) It is only when someone commits a crime based on bias and intentionally targets another that a hate crime statute is triggered. Under hate crime laws, stiffer sentences may be imposed if hate motivations are proved.
The Supreme Court’s decision in Wisconsin, Petitioner v. Todd Mitchell, authored by Chief Justice William H. Rehnquist, upheld hate crime laws in over half of the 50 states. In a rare show of public support for Wisconsin, every state filed a brief in favor of hate crime laws. The Bill Clinton administration, installed in the White House in January of 1993, also submitted a brief supporting the Wisconsin law. In this case the decision clearly rejected the First Amendment defense, pointing to unprotected conduct, not speech.
In other kinds of cases a defendant’s motive has historically been considered in passing sentence. The judgment in the Supreme Court case allowed that bias-motivated crimes create greater harm not only to the victims but to the health and welfare of the greater society.
Hate crime laws do not in and of themselves prevent or eliminate hate crimes, as other criminal laws also do not prevent or eliminate crimes. But hate crime laws enlarge the prosecution’s scope in determining prejudiced motivation. Free speech and privacy protections are not the issue here: Crimes affecting public safety are the issue.
If the subject of hate crime laws comes before the Supreme Court again, which can be predicted given the changing makeup of the courts under the Trump administration, the fact of unanimity in the 1993 decision may provide a cautionary brake on efforts to overthrow the law.
The June 11, 1993, Supreme Court decision in Wisconsin, Petitioner v. Todd Mitchell can be found here.
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