Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First Amendment Theory

I Introduction On a purely moral or emotive level, the concept of sentence enhancement for crimes motivated by racial or religious hatred(1) possesses substantial appeal to many. Racial and religious prejudice clearly runs counter to our nation's underlying normative tradition,(2) and it therefore seems perfectly appropriate for our government to take steps designed to eradicate this blight on the national commitment to equality. Moreover, to the extent that such governmental attempts are confined to the enhancement of sentences for conduct that is already criminalized, one might assume, not unreasonably, that the competing free speech concerns implicated by laws that directly penalize so-called "hate speech"(3) are rendered irrelevant. One does not, after all, have a constitutional right to commit murder, rape, or assault. Closer examination reveals, however, that sentencing enhancement laws actually implicate core notions of free speech theory. For such laws threaten the fundamental ground rules concerning the relationship between individual and government that inhere in the American political theory of which the protection of free expression is a central element. Also of possible relevance to the constitutionality of sentencing enhancement laws, purely from a doctrinal perspective, is the Supreme Court's recent decision in R.A.V. v. City of St. Paul.(4) There, the Court unanimously held unconstitutional an ordinance that provided: Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.(5) A majority of the Court, in an opinion by Justice Scalia, rejected the argument that the ordinance regulated only unprotected "fighting words."(6) Noting that "the ordinance goes even beyond mere content discrimination to actual viewpoint discrimination,"(7) Justice Scalia reasoned that government cannot provide advantages to one side of a debate.(8) Although R.A.V. may be distinguishable from the sentencing enhancement question because, unlike sentencing enhancement, expression was involved on at least a technical level in R.A.V., it is arguable that Justice Scalia's logic extends well beyond its factual context.(9) In light of the widespread attention that sentencing enhancement laws are currently receiving,(10) it is appropriate to explore the constitutional issues to which such laws give rise. In undertaking this exploration, however, it soon becomes apparent that a constitutional analysis of sentencing enhancement laws actually triggers a far more profound examination of the fundamental theoretical underpinnings of free speech theory. My position is that whether one chooses to view it as a catalyst or as a fundamental element, protection of freedom of thought is essential to the free speech right --that if government is permitted to invade the sanctity of the individual's private social and political attitudes, the right of free speech is rendered basically meaningless. Ironically, then, one of the greatest threats to freedom of expression derives from governmental restrictions on something other than classic communicative activities. If one accepts the essential nature of the freedom-of-thought postulate, the constitutional implications for sentencing enhancement laws should be clear. Such laws criminalize no conduct that had not previously been made criminal. All they do is punish the holding of political or social attitudes that the government deems offensive or unacceptable. Hence, these laws represent a serious threat to the values of free expression, despite the fact that they fail to penalize directly any communicative activity. The first section of this article examines the centrality of freedom of thought to the underlying theory of free expression. …