Hope-Fulfilling or Effectively Chilling? Reconciling the Hate Crimes Prevention Act with the First Amendment

Article excerpt

I. INTRODUCTION

Living on a meager disability pension and without means of transportation, forty-nine-year-old African American James Byrd, Jr. of Jasper, Texas thought he had caught a break when three white men offered him a ride home on June 6, 1998. ? The following morning, police found Byrd's torso in the middle of the road, his head and arm in a ditch a mile away, and a three-mile trail of blood staining the road.2 That racial animus was the motivation for Byrd's torture, dragging, and death was hardly in dispute. Two of the three perpetrators were members of white supremacist organizations and bore tattoos of swastikas and black men in nooses, and one perpetrator allegedly made a number of racial slurs both before and during the murder.3

As gruesome as this crime was, prosecutors were unable to seek enhanced sentences for the perpetrators due to inadequacies in existing state and federal hate crime law.4 Federal hate crime law applied only if victims were engaging in "federally protected activities" when attacked, and Texas laws enhancing sentences for hate crimes were not useful in this case.5 Later that year, Wyoming lawyers were precluded from seeking an enhanced sentence in the case of Matthew Shepard, a college student who was tortured and murdered because of his homosexuality, because Wyoming was one of the few states at the time with no hate crime laws.6

In the decade since these crimes occurred, there has been little decline in the number of hate crimes reported each year.7 In fact, while crimes against African Americans continue to account for almost a third of hate crimes nationwide, crimes against Muslims, Hispanics, and persons of various sexual orientations are on the rise.8 In November 2010, the FBI reported that 6,604 incidents of hate crimes involving 8,336 victims were committed in 2009. 9 An intensive threeyear study conducted by the Department of Justice suggests that the real number of hate crimes is between nineteen and thirty-one times higher than reported by FBI statistics.10

On October 28, 2009, "[a]fter more than a decade of opposition and delay," President Barack Obama signed into law the first bill expanding the parameters of federal hate crime law in over forty years.11 The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act ("HCPA") broadens federal hate crime law to incorporate "violence motivated by the . . . gender, sexual orientation, gender identity, or disability of the victim."12 It also significantly expands federal jurisdiction over hate crimes by eliminating the requirement that victims engage in "federally protected activities" and increases federal funding for the investigation and prosecution of these crimes.13

Unsurprisingly, not everyone is pleased with what Obama and civil rights advocacy groups deem "long-awaited" legislation.14 In addition to arguments that the law violates the Commerce Clause, the Fourteenth Amendment, and the Double Jeopardy Clause, opponents of the HCPA argue that it stifles freedom of speech and association.15 Because it permits consideration of perpetrators' words, beliefs, and associations when determining their underlying biased motives, the bill has reinvigorated a decades-old argument over whether the values of the First Amendment are in irresolvable conflict with the anti-hate crime agenda. In fact, federal courts are already seeing constitutional challenges to the HCPA on the grounds that it deters, inhibits, and chills the exercise of First Amendment rights.16

This Note examines the ongoing debate over whether the First Amendment hopelessly conflicts with the HCPA. Part II chronicles hate crime legislation and jurisprudence from its roots in the Civil Rights era, through the relevant Supreme Court rulings of the late 1990s and early 2000s, to the three-year legislative battle over the bill, culminating with its passage in October 2009. Part III examines the arguments for and against the legislation and highlights the merits and defects of both sides of the debate. …