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Brother, You Can't Go to Jail for What You're Thinking: Motives, Effects, and Hate Crime Laws

NCJ Number
Criminal Justice Ethics Volume: 11 Issue: 2 Dated: Summer/Fall 1992 Pages: 24-29
Susan Gellman
Date Published
6 pages
This article examines the possible association of motives, effects, and hate crime laws.
The article considers First Amendment challenges to the ADL model hate crime statute and its progeny. The statute was drafted in 1981 by the Anti-Defamation League of B'nai B'rith, and was subsequently adapted or paralleled by more than 20 State legislatures. The article claims that the ADL model statute addresses a serious problem in a way that infringes not only upon speech, but upon freedom of thought. Nobody contends that government should ignore it. The only question is how government may and should respond. The article describes a thin line between government action that is forbidden by the First Amendment and government action that is permissible. Comfortably far from the line on the permissible side is punishment of violent conduct. Close to the line on the permissible side is punishment of fighting words. Some scholars would also put motive on the permissible side, although it is close to the line. The article concludes that an effects-based statute serves the State's interest in punishing the special harms of bias crimes and ensures maximum protection of speech, thought, and belief. Notes