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Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First Amendment Theory

NCJ Number
Criminal Justice Ethics Volume: 11 Issue: 2 Dated: Winter/Spring 1992 Pages: 29-42
Martin H. Redish
Date Published
14 pages
This article examines the theoretical underpinnings of free speech theory.
This article began as a constitutional analysis of sentencing enhancement laws, which triggered a far more profound examination of the fundamental theoretical underpinnings of free speech theory. The article claims that, whether viewed as a catalyst or as a fundamental element, protection of freedom of thought is essential to the free speech right. If government is permitted to invade the individual's private social and political attitudes, the right of free speech is rendered basically meaningless. Sentencing enhancement laws do not criminalize any conduct that had not previously been made criminal. All they do is punish the holding of political or social attitudes that the government deems offensive or unacceptable. These laws are a serious threat to the values of free expression, despite the fact that they fail to penalize directly any communicative activity. In conclusion, the article observes that a system which protects only expression which certain elements of society decide are morally or politically acceptable will soon disintegrate. For such a system rejects the essential "epistemological humility" on the part of the government that is at the core of any commitment to free speech. Notes