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Messages, Motives, and Hate Crimes

NCJ Number
Criminal Justice Ethics Volume: 11 Issue: 2 Dated: Summer/Fall 1992 Pages: 52-54
Frederick Schauer
Date Published
3 pages
This article discusses the claim that penalty enhancement is problematic under the First Amendment.
One scholar claims that it is presumptively impermissible under the First Amendment for a government entity to proscribe otherwise proscribable conduct because of a governmental concern (including both legislative motive and statutory purpose, which are not the same thing) with the message sent out by (the communicative impact of) the proscribed conduct. It is not necessarily the case that narrower laws focusing exclusively on categories of conduct commonly employed for expressive purposes are unconstitutional. The article asserts that there are many reasons to proscribe race-based motives that are not message-dependent. Chief among these is retribution. Once it is accepted that it is not the under-inclusion but the legislative purpose that is at issue, it turns out that the under-inclusion in the race case is spurious if the motive of racism is itself proscribable, either because it is wrong, or because racism as motive bears a relationship to the incidence of assaults. Notes