A myth often cited in opposition to hate crimes laws is that it somehow is in violation of the first amendment.  Hate crimes laws punishes violent acts, not expression or thought.

To be punished under a hate crimes law, a person must cause bodily injury by any means or attempt to cause bodily injury with fire, firearm or explosive device. It does not apply to hate speech, to name calling, or to nonviolent expressive conduct of any kind. Causing or attempting to cause bodily injury is not speech or thought.

Considering the motive for a violent act is fully consistent with long-standing concepts of criminal law and of free speech law.

Hate crime laws punishes violence that is committed because of the victim's actual or perceived race, color, religion, national origin, gender, sexual orientation or disability. Crimes motivated by bias carry with them special harms to the community. Bias crimes are more likely to provoke retaliatory crimes, to inflict distinct emotional harms upon its victims, to traumatize other members of the victim's social group, and to incite community unrest. Thus, hate crimes require a special response.

The criminal law has long considered the motives of a perpetrator in deciding the seriousness of a crime. A premeditated murder is a more serious crime than a murder committed in the heat of the moment. Killing a police officer is often a more serious crime than killing a civilian. An accidental killing that occurs during the commission of a felony is generally murder, while an accidental killing in other circumstances would be manslaughter or perhaps not a crime.

Allowing evidence of a defendant's beliefs or membership in an organization to prove bias will not chill constitutionally protected expression. The American Civil Liberties Union has objected to the federal Hate Crimes Prevention Act because it does not absolutely exclude evidence of a defendant's abstract beliefs and membership in an organization to show that the violent act was motivated by bias. Under the Federal Rules of Evidence and Supreme Court rulings, such evidence would only be admissible if it is relevant and only if it is not unduly prejudicial.

The mere possibility that such evidence might be admissible will not chill constitutionally protected speech or association. Such evidence would only be at issue when a violent act had been committed, and only to show that the victim of that act had been selected because of an actual or perceived characteristic of the victim. The required connection to a violent act ensures that hate crimes laws will not chill protected speech by nonviolent people. Instead, it will deter particularly repugnant violence, not constitutionally protected speech.

The federal Hate Crimes Prevention Act is plainly constitutional under existing Supreme Court First Amendment cases.  The Supreme Court addressed the First Amendment implications of hate crimes laws in Wisconsin v. Mitchell, 508 U.S. 476 (1993). There the Court unanimously upheld a Wisconsin law that increased the prison term because a jury found that the defendant selected his victim because of the victim's race. "A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment," the Court stated. "Violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact . . . are entitled to no constitutional protection."

The Court also stressed that a criminal's reasons for committing a crime are important in determining sentencing: "Deeply ingrained in our legal tradition is the idea that the more purposeful is the criminal conduct, the more serious is the offense, and, therefore, the more severely it ought to be punished." The Court also noted that the special harms caused by hate crimes justify enhanced penalties: "The State's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases."

                           Blake Cornish, NGLTF Federal Legislative Lawyer