Do Hate Crime Laws Violate the First Amendment?

Hateful speech is not a crime, but it can be evidence of one.

Hate crimes, sometimes called bias-motivated crimes, are crimes committed because of the victim's actual or perceived race, religion, ethnicity, gender, sexual orientation, or disability. Hate crime laws vary from state to state. Not all state laws protect against all categories or types of bias crimes, and a few states don't have any laws against hate crimes. There are also federal laws against hate crimes that sometimes provide greater protection than state laws.

Hate Crimes Must Punish Acts

Hate crime legislation, drafted properly, does not violate the First Amendment. Hate crime laws punish acts—not beliefs, thoughts, or protected speech. Hate crime statutes do not punish or prohibit name-calling, verbal abuse, or expressions of hatred toward any group unless the abuse takes the form of a threat of violence. It is only when a defendant crosses the line from speech to action or threats that hate crime laws apply. For general information on hate crimes, see Hate Crimes: Laws and Penalties.

The First Amendment and Hate Crimes

The First Amendment guarantees the right to free speech. But the right to free speech is not unlimited. Threats to kill or hurt people, sometimes called criminal threats or terrorist threats, are not protected by the First Amendment.

Challenges to Hate Crime Laws

Although defendants have challenged hate crimes legislation on the ground that the laws violate their right to free speech, those challenges have generally not been successful, so long as the law criminalizes bias-motivated conduct, including threats, assault, and vandalism and not merely hateful thoughts or words. (Wisconsin v. Mitchell, 508 U.S. 476 (1993).) In order to withstand First Amendment challenges, hate crimes legislation must be carefully drafted to avoid criminalizing thoughts or protected speech, even when that speech is offensive and hateful. For example, religious leaders who preach against homosexuality cannot be charged with a hate crime, even though such speech may be offensive and hateful. So long as the preacher does not urge violence, the speech is protected and not criminal.

Hate Speech as Evidence

Although hate speech is not itself a crime, it may be used as evidence in a hate crime case. As with all crimes, the prosecutor must prove each element of the crime beyond a reasonable doubt. This means proving both that the person committed a criminal act (such as arson or assault) and that the defendant did so with the prohibited intent. In order to show intent, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crime because of the victim's race, color, religion, sexual orientation, or for some other prohibited reason. Proving that the defendant acted with hate crime intent can be challenging. For more information, see How do Prosecutors Prove Hate Crimes?

Oftentimes, a defendant's own statements (to police or others) are the only evidence of bias. For example, imagine a person who rails against gays and lesbians to anyone who will listen, using slurs and threatening to beat up gay people. The person then attacks a gay couple, hitting them and causing injury, while yelling insults about the couple's sexual orientation. The defendant is charged with a hate crime and the statements made before and during the attack are introduced as evidence of bias. It is the defendant's act (of attacking two people)—not the speech—that is criminal. However, the defendant's speech can be used as evidence of his intent.

Obtaining Legal Assistance

If you are charged with or accused of committing a hate crime, you should talk to a local criminal defense attorney. An attorney can explain the law in your state and help you present the strongest possible defense.

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