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First Amendment Challenges to Hate Crime Legislation: Where's the Speech?

NCJ Number
Criminal Justice Ethics Volume: 11 Issue: 2 Dated: Summer/Fall 1992 Pages: 6-20
James Weinstein
Date Published
15 pages
This article challenges the claim that enhancing punishment for racially motivated crimes violates the First Amendment.
In 1991, Susan Gellman published an article claiming that hate crime legislation violated the First Amendment. This paper challenges the claim that such laws are invalid on their face -- that is, regardless of the circumstances in which they are applied, a statute that enhances the punishment for racially motivated crimes violates the First Amendment. However, if hate crime legislation is applied to enhance the punishment for crimes committed through speech, or to punish someone for using racist language or expressing bigoted ideas, obvious First Amendment issues arise. The article states that such potential misapplication does not warrant voiding the statute on its face. In addition, it attempts to show that the attack on the constitutionality of hate crime legislation undermines the validity of all antidiscrimination laws. The article also includes discussion of retributivism and legal moralism, and the added injury of racial violence. Notes