Hope-Fulfilling or Effectively Chilling? Reconciling the Hate Crimes Prevention Act with the First Amendment
Coker, Carter T., Vanderbilt Law Review
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. Part IV concludes that the new law's rules of construction render its consideration of speech, thought, and association constitutionally permissible. However, it urges that the Department of Justice set forth procedural and evidentiary guidelines to ensure that the HCPA, as applied, does not unjustly infringe on First Amendment freedoms.
II. POLICY BASES FOR AND HISTORICAL DEVELOPMENT OF HATE CRIME LEGISLATION
Federal law defines a hate crime, also referred to as a "bias crime," as "a crime in which the defendant intentionally selects a victim . . . because of the [victim's] actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation."17 Such crimes are "the criminal manifestation of prejudice."18 The constitutional dilemma arises from the fact that one of the most direct means of determining the accused's motive - and often the only evidence available - is his or her speech before, during, and after the crime.19 First Amendment concerns are implicated whenever police and prosecutors seek to use evidence of perpetrators' speech, expressive actions, or membership in organizations to prove the requisite animus.
A. Why the Government Regulates Hate Crimes
No chronology of hate crime legislation would be complete without a brief explanation of why such legislation is appropriate. First, the detrimental effect of hate crimes on their victims is typically much worse than that of parallel crimes. Not only are hate crimes more likely to involve physical assaults and result in serious physical injury to the victim, but their emotional and psychological impact on victims is also more severe, as such crimes attack the "core of [victims'] identity."20 The powerful sense of violation that hate crime victims experience is comparable only to that of rape victims.21 In both situations, victims "tend to experience psychological symptoms such as depression or withdrawal, as well as anxiety, feelings of helplessness, and a profound sense of isolation."22 This is particularly true for minority victims, for whom such bias "evoke [s] ... all of the millions of cultural lessons regarding your inferiority that you have so painstakingly repressed, and imprint upon you a badge of servitude and subservience for all the world to see."23 Of further concern is the immutable nature of most characteristics that inspire hate crimes: gender, race, national origin, ethnicity, disability, and sexuality. As Professor Frederick Lawrence aptly notes, "the bias crime victim cannot reasonably minimize the risk of future attacks because he is unable to change the characteristic that made him a victim."24
Moreover, hate crimes have a unique systemic impact on "target communities" - those people sharing the victim's distinguishing characteristics. Because hate crimes are often intended "to not just harm the victim, but to send a message of intimidation to an entire community of people,"25 target communities experience hate crimes "in a manner that has no equivalent in the public response to a parallel crime."26 Instead of merely feeling sympathy for the victim, target communities feel directly threatened and attacked by biasmotivated crimes.27 Hate crimes thus trigger widespread feelings of isolation, hurt, and fear, and as evidenced time and again, the mere mention of a hate crime can inflame intercommunity tensions.28 The Supreme Court has found the systemic effects of hate crimes substantial enough to justify the imposition of enhanced sentences.29
Finally, enhanced punishment for hate crimes can be justified on symbolic grounds, as such laws send a "message to society that criminal acts based upon hatred will not be tolerated."30 Particularly poignant for a country stolen from a native population, built by an enslaved race, and constantly struggling to achieve the equality that is constitutionally guaranteed to its citizenry, hate crime laws are both preventative and reconciliatory. During a discussion of an early draft of the HCPA, Representative Dick Gephardt emphasized that the law "sends a message to the world that crimes committed against people because of who they are . . . are particularly evil, particularly offensive. It says that these crimes are committed, not just against individuals, not just against a single person, but against our very society, against America."31 Our legal system penalizes bias crimes with the aforementioned warnings and policies in mind.
B. A Brief History of Hate Crime Legislation
1. Early Developments in Hate Crime Law: 1968-1994
Federal hate crime legislation did not exist until the midtwentieth century.32 The Civil Rights Act of 1968 created a federal cause of action for crimes motivated by the victim's race, color, religion, or national origin that were committed against people engaging in federally protected activities, such as voting, serving as a juror, traveling between states, or attending public school.33 Under this statute, prosecutors had to allege federal civil rights violations to get enhanced penalties for hate crimes. For this reason, and also because of the increase in hate crimes (or the attention brought thereto) during the following few decades, states began to develop their own hate crime laws in the early 1980s.34 By 1992, forty-six states and the District of Columbia had enacted hate crime statutes.35
However, the benefits of state hate crime laws were discounted by their flaws, including problems of selective enforcement, underenforcement, underfunding, and lack of uniformity.36 Heightened public awareness of hate crimes and strengthened advocacy for regulation in the federal arena culminated in the passage of three influential - though ultimately insufficient - federal laws in the early 1990s.37 First, the Hate Crimes Statistics Act of 1990, which was the first federal law to use the term "hate crime," required the Attorney General to collect and publish data on crimes motivated by discriminatory animus.38 Second, the Violence Against Women Act of 1994 created a civil remedy for victims of crimes motivated by gender.39 Finally, the Hate Crimes Sentencing Enhancement Act of 1994 specified eight predicate crimes for which judges could impose enhanced penalties if a factfinder determined beyond a reasonable doubt that the crimes were hate crimes.40 However, this legislation was subject to an important limitation: it applied only to federal crimes and crimes committed on federal property.41 While each of these early federal laws represented a step in the right direction, they did not provide sufficient legal recourse for most hate crime victims.
2. Free Speech and Hate Crimes Jurisprudence
Though challenges to federal hate crime laws only emerged with the passage of the HCPA in October 2009, constitutional challenges to state hate crime laws have taken many forms over the years, including claims under the Due Process, Equal Protection, Commerce, and Double Jeopardy Clauses. This Note concentrates on the cases that deal with First Amendment challenges in which plaintiffs often allege overbreadth and "chilling effects," direct punishment of speech, and content and viewpoint discrimination.
The First Amendment prohibits Congress from making any law "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble."42 It gives an individual the right to associate with others who share similar beliefs, and prevents the government from proscribing speech or expressive conduct because of disapproval with the ideas expressed.43 However, these freedoms "[are] not absolute at all times and in all circumstances."44 In United States v. O'Brien, the Court found that a law criminalizing the burning of draft cards did not violate the First Amendment, even if the act was a symbolic gesture, because the law was limited to the "noncommunicative aspect" of the conduct.45 The Court held that when "speech" and "nonspeech" elements are combined in a criminal statute, an important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.46 Such laws are justified if (1) they are within the government's constitutional power, (2) they further an important governmental interest unrelated to the suppression of free expression, and (3) the incidental restriction on First Amendment freedoms is no greater than is essential to further that interest.47
Two Supreme Court cases, RA. V. v. St. Paul and Wisconsin v. Mitchell, shaped the hate crime law debate in the early 1990s. In RA.V. v. St. Paul, the Court found that an anti-cross burning ordinance constituted "content discrimination" under the First Amendment, which bars government officials from discriminating based on disfavor with the content of a person's speech.48 The Minnesota ordinance at issue prohibited cross burning when the perpetrator intended to arouse anger, alarm, or resentment "on the basis of race, color, creed, religion, or gender."49 Precedent dictated that the act of cross burning was "nonverbal expressive conduct" entitled to protection under the First Amendment.50 Thus, the ordinance specified five topics - race, color, creed, religion, and gender - that rendered biased expression criminally actionable. "Selectivity of this sort," the Court held, "creates the possibility that the city is seeking to handicap the expression of particular ideas."51 Though R AV. applied to hate speech laws, some courts believed it marked a final blow to the proscription of hate crimes as well.52
Months later, the Court addressed hate crime laws head-on in Wisconsin v. Mitchell. In Mitchell, the Court found that a statute enhancing a defendant's sentence for intentionally selecting a victim based on the victim's race did not violate the defendant's free speech rights.53 The Court upheld the statute because it punished those people who engaged in violent conduct based on their biases rather than punishing expression or bias itself.54 The Court analogized the role of a defendant's motive in hate crime statutes with the role motive plays in federal and state anti- discrimination laws, which were previously upheld against First Amendment challenges.55 The Court also rejected arguments about the chilling effects of hate crime laws:
The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in traditional "overbreadth" cases. We must conjure up a vision of a . . . citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to . . . quahfy him for penalty enhancement. . . . This is simply too speculative a hypothesis to support [an] overbreadth claim.56
However, Mitchell did not put an end to the debate. While Mitchell ensured that hate crime laws can be consistent with the First Amendment, anti-hate crime law advocates maintain that Mitchell merely upheld the constitutionality of the Wisconsin statute at issue and did not preclude facial or as-applied constitutional challenges to other hate crime laws.57
Many of the facial attacks questioned whether and to what extent prosecutors can use speech, association, and expression as direct or circumstantial evidence of hate crimes, and the Court has issued several rulings addressing these evidentiary concerns. The First Amendment does not prohibit the use of speech to establish the elements of a crime or to prove motive or intent.58 Over a decade before the term "hate crime" became widely used, the Court held in Barclay v. Florida that the Constitution does not prohibit a trial judge from taking into account elements of racial hatred in a murder.59 Several years later, the Court clarified in Dawson v. Delaware that the Constitution "does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment."60
This rule is, however, subject to limitations. In Dawson, the Court prohibited the introduction in a capital sentencing proceeding of evidence that the defendant was a member of the Aryan Brotherhood because this evidence had no relevance to the issues of the case.61 Biased intent must be relevant to the crime and proven to the factfinder beyond a reasonable doubt.62
Recently, the courts have shifted their focus to more peripheral issues of the hate crime debate, such as what kind of evidence is legitimate enough to prove the existence of bias beyond a reasonable doubt; whether victim pre-selection is necessary for a crime to qualify as a hate crime;63 what kinds of expressive conduct can be regulated under a hate crime statute;64 and what proportion of the motivation needs to be biased in order for an act to qualify as a hate crime.65 Most likely as a result of Mitchell, plaintiffs have shifted their concern away from the "central preoccupation with whether the entire statute represents an infringement on speech" to whether individual laws' construction renders them unconstitutional.66
3. The Decade-Long Journey of the HCPA
The debate in Congress over the constitutionality of the HCPA waged for over a decade. Representative John Conyers first introduced the HCPA to the 106th Congress in 1999 as part of that year's Department of Defense authorization bill.67 Despite bipartisan support in both the House and Senate at the turn of the century, the Senate Armed Services Committee stripped the HCPA from the Defense authorization bill in 2000. Similar drafts failed to advance in committee in 2001, 2004, and 2005, primarily because of opposition to the entire bill by antiwar democrats and opposition to the HCPA in the conservative-led House.68 In 2007, the HCPA passed both chambers of Congress but was ultimately defeated by President George W. Bush's threat to veto the entire Defense authorization bill if hate crimes legislation was attached.69 Not until Representative Conyers and Senator Ted Kennedy introduced the bill in April 2009 did it move quickly through the House and Senate Armed Services Committees. On October 22, 2009, the bill reached President Obama's desk for review; it was signed into law on the afternoon of October 28, 2009.70
III. THE HCPA'S PURPORTED VIOLATIONS OF THE FIRST AMENDMENT
The HCPA contains numerous constitutional safeguards and closely parallels state hate crime laws that have been found constitutional. Nevertheless, it has reawakened constitutional questions and provoked heated discourse from academics, the media, and many independent writers and bloggers.71 Opponents of the HCPA typically fall into three categories: (1) those who argue that, despite the Court's holding in Mitchell, hate crime laws unconstitutionally chill First Amendment freedoms;72 (2) those who argue that specific provisions of the HCPA render the statute unconstitutional;73 and (3) those who argue that there are inadequate safeguards to ensure that the HCPA will be implemented and enforced in a way that protects perpetrators' constitutional rights.74 This Part addresses each argument in turn.
A. The Posi-Mitchell Constitutional Debate Over Hate Crimes
Mitchell did not put an end to First Amendment challenges to hate crime laws on the basis that they unconstitutionally punish speech, discriminate based on content, and are overbroad. Professors James B. Jacobs and Kimberly Potter summarize the case for unconstitutionality as follows:
Generic criminal laws already punish injurious conduct; so recriminalization or sentence enhancement for the same injurious conduct when it is motivated by prejudice amounts to extra punishment for values, beliefs, and opinions that the government deems abhorrent.75
Regulation of constitutionally protected expression, in turn, has a chilling effect on free speech.76 Jacobs and Potter contend that the Court has not adequately distinguished between the unconstitutional law that punished expression in R.A.V. and the constitutional law that punished expression linked to criminal conduct in Mitchell.77 Both, they believe, abrogate First Amendment rights to free expression and association.
Hate crime laws are constitutionally questionable not only because they enhance punishment for motivation and thought, but also because they potentially constitute content-based discrimination against free speech. A content-based regulation of speech is any limitation placed on speech dependent on its subject matter.78 Such regulations are presumptively invalid and are subject to the highest level of scrutiny.79 Jacobs and Potter highlight the unique nature of bias motivations in this context: "Unlike greed, jealousy, or simply cold-bloodedness, bigotry is often connected to a system of political beliefs and is never content neutral. The concepts of . . . bigotry are political to the core."80 The Court felt similarly in RA. V. when it ruled that the government could not regulate fighting words on the basis of viewpoint:
[The city] has not singled out an especially offensive mode of expression .... Rather, it has proscribed fighting words . . . that communicate messages of racial, gender or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas.
Thus, even though the city had a compelling interest sufficient to justify the regulation of fighting words, the law was unconstitutional because it specified which topics of fighting words were prohibited.
By the same token, the HCPA specifies eight categories of crimes that justify heightened sentences: those based on race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.82 Because the HCPA penalizes crimes against certain, but not all, groups, some lawmakers believe it unconstitutionally penalizes only those biases that legislators feel are morally repugnant.83 Representative Tom Akin has insisted that the HCPA "violates the most basic principle of law. Lady Justice is always supposed to have a blindfold across her face . . . regardless of who you are. . . . This bill violates that basic principle. It creates animosity by elevating one group over another group; thus, it creates hatred."84
Opponents of hate crime laws also claim that advocates confuse intent with motivation when they argue that hate crime laws are constitutional because courts often take into account criminal motives. Criminal law almost always requires consideration of intent, or mens rea, to assess a crime; it does not "concern itself with motivations."85 Professor Lawrence distinguishes the two: "[I]ntent concerns the mental state provided in the definition of an offense for assessing the actor's culpability with respect to the elements of the offense. Motive, by contrast, concerns the cause that drives the actor to commit the offense."86
Proponents of the HCPA, citing Barclay and Dawson, respond that motive often plays a role in determining punishment and, in states with capital punishment, "stands prominent among the recognized aggravating factors that may contribute to the imposition of the death sentence."87 However, employing the term "may" is detrimental to this argument. Given that any criminal convicted under the HCPA "shall be imprisoned" for increased terms, the fact that sentencing factors are advisory guidelines severely weakens the analogy.88 Moreover, the analogy in Mitchell between hate crime laws and anti- discrimination laws has a fatal flaw. The crimes underlying hate crime laws are already punishable under criminal law, whereas discrimination crimes need the element of racial motivation in order to be actionable at all.89
Finally, hate crime laws may constitute a slippery slope toward the regulation of hate speech.90 Professors Jacobs and Potter argue that