Messages, motives, and hate crimes

James Weinstein, Jeffrie Murphy, and Larry Alexander all effectively contribute to the conclusion that statutes enhancing the criminal penalties for crimes committed with the motivation of racial hatred do not for that reason present plausible First Amendment issues. If the basis for the First Amendment objection is seen to reside in some supposed impropriety in enhancing punishment based on motive because punishment for motives is tantamount to punishment for thoughts, all three appear to agree that that argument, the views of Susan Gellman and the Wisconsin Supreme Court notwithstanding, should not be taken seriously. Alexander, however, argues that there is a different type of First Amendment concern than the one that drives Gellman and the Wisconsin Supreme Court, and that this First Amendment concern, especially after R.A.V. v. City of St. Paul,(1) should indeed be taken seriously. It is that argument that I want to address here. It is not clear whether Alexander intends to endorse the result and the reasoning in R.A.V., or just to make an argument from positive law--that if R.A.V. is the law, then there is a legal problem. But let us give the Supreme Court the benefit of Alexander's argument (which is much better than the one in justice Scalia's majority opinion), and consider whether R.A.V., as rehabilitated by Alexander, and as reflecting a particular strand of First Amendment thinking, leads to the conclusion that penalty-enhancement is problematic under the First Amendment. So what is Alexander's argument? As I understand it, his argument, with its roots in United States v. O'Brien,(2) starts with the premise that it is presumptively impermissible under the First Amendment for a governmental entity to proscribe otherwise proscribable conduct because of a governmental concern (including both legislative motive(3) and statutory purpose, which are not the same thing) with the message sent out by (the communicative impact of) the proscribed conduct. Although the state may ban flag burning as part of a general proscription on public burning, it may not ban flag burning because of a concern about the effect of the message sent out by the act of burning on someone seeing the burning or hearing about it.(4) From this premise, Alexander argues that similar features are presented by a statute concerned not with assaults simpliciter (the analogue of a statute prohibiting all public burning), a statute which would encompass, incidentally, racially motivated assaults, but with assaults committed because of a motive of racial hatred. To focus on race-based assaults rather than assaults, he argues, is relevantly similar to focusing on flag-burning rather than burning, and thus the O'Brien argument,(5) culminating in R.A.V., presents more of a problem for the penalty-enhancement statutes than may at first sight appear. Even if we take O'Brien and the principle it has spawned as a given, however, I believe that Alexander is mistaken, and I believe his mistake stems from failing to recognize that the concern with communicative impact is only empirically and contingently related to the "greater includes the lesser" line of argument, and that the invalidity of that argument is an issue only when there is also a governmental concern with communicative impact. In order to isolate the issue, let us return to flag-burning. Because flag-burning could under existing doctrine be prohibited by a more encompassing statute having different motives (such as preventing pollution or the spread of fires), some might think that any less encompassing statute must necessarily be permissible. This is the "greater includes the lesser" argument, and Alexander and I agree that it is unsound, largely because neither the doctrine nor sound constitutional principles support it. After all, no one would contend that the power to exclude all seventeen-year-olds from the franchise would allow the state to extend the franchise to male but not female seventeen-year-olds. …