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ADL Hate Crime Statute and the First Amendment

NCJ Number
Criminal Justice Ethics Volume: 11 Issue: 2 Dated: Summer/Fall 1992 Pages: 49-51
Larry Alexander
Date Published
3 pages
This article reviews the theories of one scholar on the ADL Hate Crime Statute and the First Amendment.
The article cites a scholar who questions why an assault or other similar crime is more serious when it is committed with a bigoted motive. The purely retributive answer is that it reflects a more flawed moral character than would the same crime committed for non-bigoted motives. In addition, the crime causes more social harm when accompanied by a bigoted motive, either in terms of added insult to its victims or in terms of the "in terrorem" effect on others of the victims' race, sex, etc. However, this could be viewed as supporting punishment for beliefs, which would make the justification quite problematic given the First Amendment. How far the government can go in proscribing threatening messages before running afoul of the First Amendment is not at all clear. Incitement to violence -- which is surely threatening -- can be proscribed constitutionally only if the violence is "imminent." In conclusion, the article observes that the greater power to punish conduct does not include the lesser power to punish it more when it expresses an unwelcome message that could not be banned despite the harm that message might cause. Notes