Allen C. BlakeHate Crime Law: Protection and Proscription
Professor Richard Walker
Criminology SOSC 265Not that which goeth into the mouth defileth a man; but that which cometh out of
the mouth. Those things . . . evil thoughts, murders, adulteries, fornications,
thefts, false witness, blasphemies . . . come forth from the heart; and they defile the
man (Matthew 15:11-19)
The United States has a crime problem. A small, highly visible, portion of this crime is
motivated by bigotry and prejudice. State and local governments as well as the federal
government and private institutions have adopted laws and codes to prevent and punish so called
“hate crimes” however there is still widespread disagreement regarding the appropriate legislative
response to hate or bias. Some believe that crime or even harmful speech motivated by bias
should be punished by increased penalties. Others believe that a crime is a crime regardless of
bias and speech is protected by the First Amendment. This issue has splintered traditional political
alliances and been the subject of landmark Supreme Court decisions. What is the purpose of hate
crime law? Is it effective? Are bias laws applied equitably? What is the potential for abuse of the
law and loss of free speech? These are some of the questions that fuel the debate over hate crime
In June 1998, in Jasper, Texas, after offering him a ride, three men beat James Byrd, Jr.,
chained him to the back of a pickup and dragged him two and a half miles. His head and right
arm were found in a ditch a mile from his body. Byrd was black and his killers were white.
In October 1998, outside of Laramie Wyoming, Matthew Shepherd was robbed, beaten,
burned, his skull was smashed with a pistol butt and he was left to die lashed to a fence post in
near freezing temperatures. Shepherd was openly homosexual. He died five days later.
In August 1999, in Los Angeles, Joseph Ileto, a U.S. Postal Carrier, was killed by a man
on a shooting rampage in which he wounded five people, including three children at the North
Valley Jewish Community Center’s day-care facility. Joseph Ileto was Filipino-American and his
killer was an avowed white supremacist.
These gruesome, unthinkable, crimes and others were covered extensively by the media
along with reactions from blacks, homosexuals and civil rights groups. A renewed call was heard
for hate crime legislation. The House and Senate Judiciary Committees held hearings to consider
expanding federal hate crime protection. Human Rights Campaign Education Director Kim I.
condemned the violent attack against Matthew Shepard and called for Congress to
renew their efforts to pass national hate crimes legislation. . . The recent anti-gay
political rhetoric by right wing organizations and members of Congress have
created a climate where hate crimes are more likely to occur. . . The savage
beating and burning of Matthew Shepard did not occur in a vacuum. Crimes such
as these arise out of minds twisted and misinformed about lesbian and gay people.
The leaders of the most powerful religious political organizations -- some of which
have headquarters right here in Colorado -- have made a strategic, political
decision to target gays and lesbians.
Kweisi Mfume (1998 ), President and CEO of the NAACP, referring to the murder of
James Byrd, Jr., stated, “I am appalled at the predatory nature of this heinous crime in which three
white men, with white supremacist background and training, go into a predominantly African
American community and so brutally victimize an innocent citizen. . . Hate is still a destructive
force in America and requires the strongest sanctions and penalties that the law can provide.”
Free speech issues regarding hate crime have set the American Civil Liberties Union against the
National Association for the Advancement of Colored People in defending Nazis and cross
burners. The NAACP in supporting hate crime laws has found itself arguing for enhanced
penalties against blacks. Pornography, considered a hate crime by radical feminists, has caused
them to side with conservative Christian organizations. This is the volatile environment in which
hate crime laws have been conceived and debated.
The FBI has been tracking hate crimes since the early 90's in accordance with the Hate
Crime Statistics Act of 1990. The FBI states, “A hate crime, also known as a bias crime, is a
criminal offense committed against a person, property, or society which is motivated, in whole or
in part, by the offender’s bias against a race, religion, disability, sexual orientation, or
ethnicity/national origin” ( UCR,1999: p.58). In 1999 there were 7,876 hate crime incidents
reported to the FBI by 12,122 law enforcement agencies. This was an increase in both the
number of hate crimes reported and the number of reporting agencies from 1998. Of the 7,876
crimes reported, intimidation was the most frequent at 35%; simple assault, 19%; aggravated
assault, 12%; murder, 0.2%; and rape, 0.08%. Property crimes as a group accounted for 39%
with the most frequent being vandalism, 29%. With regard to the particular bias suspected,
56.3% were racially motivated, 16.3% were motivated by religious bias, 16% by sexual-
orientation bias, 10% by ethnicity/national origin bias and the remainder due to disability bias or
multiple bias ( UCR, 1999: pp.59-63). However, when compared to the 11,635,149 crimes
reported on the UCR in 1999, hate crimes comprised less than 0.07% of the total. Murders
motivated by bias accounted for 0.1% of the total reported (UCR, 1999: pp.5-13).
Laws directed at hate crime approach the problem in two ways. One type uses penalty
enhancements to increase the severity of a crime motivated by bias. The other criminalizes
offensive “behaviors” which are motivated by bias. These behaviors may include acts or speech
which are only illegal by virtue of the ideas, opinions or values they express. The Supreme Court
has addressed both types of laws.
In June 1992, the Court ruled on R.A.V. v. The City of St. Paul, Minnesota, referred to by
the media as the cross burning case. Edward J. Cleary, who pursued the case pro bono to the
Supreme Court, in his book Beyond the Burning Cross, explains that the real issue was the
constitutionality of the city ordinance used to prosecute the case. In June 1990, a small burning
cross was placed in the yard of a black couple who had recently moved into a predominately
white neighborhood in St. Paul. Two young men were arrested for the crime. One pled guilty
and the other, a juvenile who lived across the street, was represented by Cleary as public
defender. Cleary argued that the ordinance which the city used to prosecute R.A.V. (initials were
used because the defendant was a juvenile) was too broad to be constitutional as it applied not
only to “fighting words” ruled to be unprotected speech by the Supreme Court in Chaplinsky vs.
State of New Hampshire but also to speech protected by the First Amendment. He also argued
that the ordinance was content based, and therefore unconstitutional, in that it prohibited specific
viewpoints. The St. Paul Bias-Motivated Crime Ordinance 292.02 (1990) provided:
Whoever places on public or private property a symbol, object, appellation,
characterization or graffiti, including, but not limited to, a burning cross or Nazi
swastika, which one knows or has reasonable grounds to know arouses anger,
alarm or resentment in others on the basis of race, color, creed, religion or gender
commits disorderly conduct and shall be guilty of a misdemeanor. (Cleary, 1994:
The trial judge ruled that 292.02 was clearly unconstitutional. The Minnesota Supreme Court
reversed the decision, narrowing the application of the ordinance to only fighting words. The
U.S. Supreme Court, in a 9-0 decision, found the St. Paul Bias-Motivated Crime Ordinance
unconstitutional. Justice Scalia said, “St. Paul has sufficient means at its disposal to prevent such
behavior without adding the First Amendment to the fire” (Cleary, 1994: p.270). R.A.V could
have been charged using other ordinances prohibiting acts such as terroristic threats, arson, or
criminal damage to property.
In their Majority Opinion, Justices Scalia, Kennedy, Souter, Thomas, and Chief Justice
Rehnquist “conclude that the ordinance is facially unconstitutional in that it prohibits otherwise
permitted speech solely on the basis of the subjects the speech addresses”(Cleary, 1994: p.259).
Justices White, Blackmun, O’Connor, and Stevens disagree with this reasoning and in their
Concurring Opinion state: “...the St. Paul ordinance is fatally overbroad because it criminalizes
not only unprotected expressions but expression protected by the First Amendment” (Cleary,
1994: p.271). All the Justices agreed on one thing: The St. Paul Bias-Motivated Crime Ordinance
violated the freedom of speech guaranteed by the First Amendment to the Constitution.
Following the Court’s decision on R.A.V. v. St. Paul, lower courts found other similar
laws and practices unconstitutional. A common offender were college and university speech
codes which many colleges adopted in an effort to combat increased racial tension on campus.
Speech codes, which prohibited speech offensive to minorities, were ruled unconstitutional at the
University of Michigan, University of Wisconsin, Central Michigan University and George Mason
University because they were too broad, vague, or content based (Gentry and Kennedy, 1995:
p.39). This well meaning censorship using speech codes served to quash discussion of the
underlying issues which were causing increased racial tension on campus. Denesh D’Souza
presents an excellent argument in his book, Illiberal Education, that racial tension on campus was
compounded by affirmative action programs that gave preferential admission to certain minorities
based on race rather than academic merit. These programs prevented many academically qualified
Asian and white students from being admitted to the school of their choice and violated the sense
of fair-play on campus. Whether this theory is accurate or not, clearly many students and faculty
members alike were justifiably afraid to say what they thought. This counterproductive aspect of
censorship is explained by Emerson in his book Toward a General Theory of the First
Amendment. “Suppression of expression conceals the real problems confronting a society and
directs public attention from the critical issues. It is likely to result in neglect of the grievances
which are the actual basis for the unrest, and thus prevent their correction”(1967: p.12).
In 1993, the Court also ruled on the constitutionality of a law that used penalty
enhancement based on bias. In Wisconsin v. Mitchell, the Supreme Court upheld the penalty
enhancement approach to bias crimes. In the opinion of June 11, 1993, Chief Justice Rehnquist
wrote, “. . . the statute in this case is aimed at conduct unprotected by the first amendment . . . a
physical assault is not by any stretch of the imagination expressive conduct protected by the First
Amendment”(Cleary, 1994: p.223). In upholding the penalty enhancements the Court focused on
the crime that had been committed and did not consider the increased penalty to be punishment
for a specific viewpoint. However, according to Edward J. Cleary, the attorney who represented
R.A.V., this is somewhat disingenuous. He writes,
No one had ever argued that such conduct was protected. The conduct itself
could be punished severely; it was the actor’s beliefs precipitating the conduct
resulting in additional punishment that opened the door to dangerous applications
of such laws in the future. R.A.V. stands for the proposition that every citizen has
a right to think what he wants and to say what he thinks. Mitchell further defines
that doctrine; laws are permissible that focus on criminal conduct as a prerequisite
to punishing beliefs. If convicted of criminal conduct, one is now subject to
additional punishment for one’s motivation, even if that motivation is a strongly
held belief. . . there is a thin line between punishing motivation and penalizing
dissenting opinion. The Court’s focus on the governmental interest asserted
allows officials to use the broad justification of law and order as a subterfuge to
suppress the expression of unpopular beliefs. Too many criminal laws (against
trespass, disorderly conduct, etc.) lend themselves to this type of misapplication.
(Beyond the Burning Cross.1994: p.223)
In June 2000, the Supreme Court ruled in Apprendi v. New Jersey, by a five to four
decision, that a jury must decide the element of bias in hate crimes, thereby holding the hate crime
penalty enhancements to the standard of “beyond a reasonable doubt”. The New Jersey law had
provided for an enhanced sentence “if a trial judge found, by a preponderance of the evidence,
that the defendant committed the crime with a purpose to intimidate a person or group because of
. . . race” (No. 99-478: p.1).
Is freedom of speech now safe from politically correct ideology as a result of these
rulings? It is too early to tell. The Court has a history of sacrificing both the moral high ground
and the Constitution on the altar of political correctness. In the past, the Court has used its pen to
slash not only the Constitutional rights but the human rights of several groups of Americans.
Blacks, in Dred Scott v. Sanford (1857), and babies, in Roe v. Wade (1973), were ruled to be
property not persons. Japanese-Americans, in Korematsu v. The United States (1944), were
found to be constitutionally interred in concentration camps based on their ancestry. Freedom,
taken for granted, may easily be lost.
The criminal courts and the university campus are not the only place unpopular ideas can
result in serious sanctions. There are many written and unwritten codes in the workplace. Those
in the media, who themselves have a responsibility to protect free speech, are especially vulnerable
to political correctness. Nat Hentoff, in Free Speech for Me - But not for Thee, cites the example
of Andy Rooney, well known CBS commentator, who was viciously attacked in the media, and
subsequently suspended without pay for three months, after he offended the delicate sensibilities
of homosexuals in his 1989 special “The Year with Andy Rooney”. Rooney said, “There was
some recognition in 1989 of the fact that many of the ills which kill us are self-induced. Too
much alcohol, too much food, drugs, homosexual unions, cigarettes. They are all known to lead
quite often to premature death” (Hentoff, 1992: p296). CBS stood behind Rooney during the
letter writing campaign by homosexuals that followed but caved in when Rooney was quoted in a
gay magazine as making a racist remark against blacks. Rooney believes he was intentionally
misquoted in reprisal for the “premature death” comment (Hentoff, 1992: p.297). Though not a
crime in the technical sense, many homosexuals consider any comment like Rooney’s a hate
crime. Will speech such as this be criminalized in the future?
Hate crime accounts for only 0.07% of all crime reported to the FBI. This figure seems to
indicate that the emotional and political importance of hate crime is not based on statistical
significance. What is the force behind hate crime legislation? It was not a groundswell of public
opinion that led to the adoption of bias laws and codes across the nation. Minority advocacy
groups, the media, and homosexual activists are the primary promoters of hate crime legislation.
Racial minorities, the historic victims of prejudice and bigotry and the most frequent victims of
hate crime, have an obvious interest. The popular media has both a political and economic
interest. Homosexual activists crusade not merely for tolerance and acceptance but affirmation of
their hollow lifestyle of free sex at any cost. These groups have co-opted the civil rights
movement for their own ends and will, it seems, be satisfied with nothing less than the
criminalization of all opposition. Hate crime laws have become an integral part of their strategy
"to make Americans hold us in warm regard, whether they like it or not." (Kirk & Madsen.1989.
as cited in Socarides. 1995.)
There is little scientific data available as to whether hate crime laws currently in effect
have been enforced fairly. There are many anecdotal accounts in which prosecutors have failed to
apply hate crime laws to minority offenders when the victim was white. There were, however,
781 incidents involving anti-white bias reported in 1999 or approximately 9.9% of the total.
There are also instances where minority advocates have pushed for hate crime penalties if the
suspect was white regardless of the facts of the case. Who is to say if racial bias played a role?
The prosecutor has discretion in filing the case and then, by current law, a jury must decide.
According to the FBI definition and most others, hate crime is motivated by bias against
“race” etc. not against “minority status”. Some, however, as law professors Mari Matsuda and
Charles Lawrence of Georgetown University, believe that minority status should be the criteria.
They believe that only those who are members of an oppressed group are qualified to be victims
of bias. If individual members of the oppressed group disagree with this ideology they have
betrayed the group. Referring to Justice Clarence Thomas in a chapter titled “Traitors and
Tokens” in their book We Won’t Go Back: Making the Case for Affirmative Action, Lawrence
writes, “When our brothers and sisters are shooting at us, whether with assault guns or Supreme
Court opinions, we must speak forthrightly in the condemnation of Black-on-Black crime and
search for a way to end self-hatred”(1997: p.141). Apparently Lawrence and Matsuda view any
antagonistic opinion, even from a black Supreme Court Justice as a hate crime comparable to
aggravated assault or attempted murder. Will this be the legal standard in the future?
Presumably, by punishing bias, the legal system hopes to eliminate or reduce it. A most
worthy goal but can it be achieved? Congress has thus far failed in its attempts to broaden federal
hate crime law to include sexual orientation, gender, disability and protection at all times. Federal
law currently protects only against the incidence of violence motivated by actual or perceived
race, color, national origin or religion and only while involved in enumerated, federally protected
activities such as voting, participation in federal programs, etc.(ACLU. Statement on S.622. 1999)
Would an expanded federal hate crime prevention act help reduce hate crime? It would punish
bias as a separate element of the crime. Hate, however, is an emotion and most hate crimes seem
to be spontaneous emotional acts of a type not easily deterred by fear of apprehension or
Are hate crime laws good or bad? What will the future hold? For homosexual activists, it
is a win-win situation in the present political climate. Increased hate crime legislation can only
increase their control over opposing viewpoints. If hate crime laws are narrowed in the future, it
will serve to reinforce their desired identity as an oppressed minority. Blacks, on the other hand,
have a dilemma, especially with regard to enhanced penalties. They have seen these laws, which
were enacted for their protection, used against them. If a black person, in the process of lashing
out in frustration, makes a threat, destroys property, etc., they are subject to the same enhanced
penalties as the white supremacist the law was designed to protect them from. Political liberals
also face a conundrum. If they align themselves with hate crime proponents, they risk opposing
the very liberties which they exercised to help forge their current ideology in the 60's and 70's;
freedom of speech and assembly. Conservatives, especially those with firmly held beliefs, may
have the most to lose from hate crime legislation--not because they are especially hateful criminals
but because of the potential criminalization of the expression of unpopular opinions on issues such
as abortion and homosexuality. All groups would do well to remember that political and social
opinion shifts with time and circumstance. Otherwise law abiding citizens could face potential
criminal sanctions for their viewpoint or severe penalties for innocuous actions employed to make
a political statement.
Hate crime laws may provide increased protection for minorities; however, they may also
proscribe expression of unpopular ideas. Society must weigh the value of the former against the
cost of the latter.
American Civil Liberties Union: Statement on S. 622: Hate crimes prevention act of 1999
before the senate committee on the judiciary: Submitted by Christopher E. Anders, Legislative
Counsel. (05-11-1999). Retrieved May 1, 2001, from the World Wide Web:
Cleary, Edward J. 1994. Beyond the burning cross: The first amendment and the
landmark R.A.V. case. New York: Random House.
D’Souza, Denesh 1991. Illiberal education: The politics of race and sex on campus. New
York: Macmillian Inc.
Federal Bureau of Investigation: Uniform Crime Reporting Program: Crime in the United
States .(1999). Retrieved May 1, 2001, from the World Wide Web:
Gentry & Kennedy, First Amendment Coalition 1995. 100 + Cases of campus censorship.
U.S.A.: Second Thought Books
Hentoff, Nat 1992. Free speech for me–but not for thee: How the American left and right
relentlessly censor each other. New York: Harper Collins.
The Holy Bible. KJV. New York: Thomas Nelson & Sons.
Kirk, Marshall & Madsen, Hunter. After the ball: How America will conquer its fear and
hatred of gays in the 1990's.1989: New York: Doubleday.
Lawrence, Charles R. III & Matsuda, Mari J. 1997. We won’t go back: Making the case
for affirmative action. Boston: Houghton Mifflin.
Mills, Kim I. (10-10-1988) Human Rights Campaign [press release]. Retrieved May 2,
2001, from the World Wide Web: http://www.uwacadweb.uwyo.edu/lgtba/mattnews.htm.
Mfume, Kweisi (1998). NAACP [press release]. Retrieved May 1, 2001, from the World
Wide Web: http://www.naacp.org/president/releases/archives/1998/antihatebill.htm.
Socarides M.D., Charles W. How America went gay. 1998. Retrieved May 7, 2001 from
the World Wide Web: http://www.leaderu.com/jhs/cosarides/html. reprinted by permission from
U.S. Supreme Court: No. 99-478: Apprendi v. New Jersey .(06-26-2000). Retrieved May
9, 2001, from the World Wide Web: http://laws.findlaw.com/us/000/99-478.html
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