Hate Is Not Speech

June 27, 1993

Some absolutists and purists say the First Amendment does and should protect all speech, even "hate speech." We do not subscribe to that view.

We do not regard hate as speech. The Supreme Court has said in several different ways over the years that not every form of "expression" -- such as physical assault, as in this case -- is entitled to First Amendment protection. So it came as no surprise when the Supreme Court ruled unanimously this month that when a state treats some crimes as "hate crimes" and punishes them more severely than similar acts it is not a violation of the First Amendment's protection of free speech.

The case came from Wisconsin, where a man who urged a group to attack a victim because of his race was convicted of aggravated battery. Normally that offense carries a maximum sentence of two years' imprisonment. But because of the racial factor, the Wisconsin criminal code "enhances" the sentence to seven years.

The reasoning of the court was simple. Motive has always been a factor in sentencing. Judges have always had the right to treat two identical acts differently if they were prompted by two very different reasons. The state has a special reason for wanting to punish hate crimes severely. The Supreme Court put it this way: "The Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, bias-motivated crimes are more likely to prompt retaliatory crimes, inflict distinct emotional harms on their victims and incite community unrest."

We agree with the recent conclusion of a Harvard Law Review article: "Statutes that enhance penalties for crimes committed because of the victim's race or similar characteristic are not only constitutional; they are necessary. The current racist thuggery in Germany and the nightmare of inter-ethnic warfare in what was formerly Yugoslavia show the extremes to which hate violence can lead. In light of such frightening portents, it would be all the more shocking to see American jurisprudence distort the principles of free speech in order to defend hate-inspired violence."

L The Supreme Court, in this instance, apparently agrees, too.

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