Posted by Eugene Volokh: Crimes and Motivations: http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1180040712
I'm skeptical of hate crimes laws for various reasons, but I don't agree with the oft-heard argument that there's something unconstitutional or inherently wrong about enhancing punishments based on motivation. Consider this [1]comment: "I simply can not abide these 'hate crime' laws and am amazed that they have not been struck down. A murder is a murder; these laws criminalize speech, plain and simple." A murder is a murder -- yet the law has long distinguishes between different motivations for homicide. Killing someone because you're enraged over his having attacked your family members (or even seduced your wife, a more controversial matter) is manslaughter. Killing someone because you just don't like them is often second-degree murder. Killing someone for financial gain may be more likely to be first-degree murder. Your motivation matters; and it will often be proved using your speech. Does it follow that these doctrines unconstitutionally "criminalize speech, plain and simple," or violate the principle that "[a] murder is a murder"? Or consider treason law. Blowing up part of a defense contractor's plant in time of war is a serious crime. But it's treason only if it's done with the purpose of helping the enemy. If you blow up part of the plant because you're on strike and you're angry at the plant's management, it's still a felony, but it's not treason. Here the matter turns not just on motivation, but politically laden motivation (are you on our side, or the Communists' / Nazis' / jihadists'?). Still, motivation quite properly matters. We don't say "arson is arson; these laws criminalize speech, plain and simple" -- we distinguish between arson caused by anger or a desire for economic retaliation (bad though it is) and arson caused by a desire to help the enemy (worse). The same is true with antidiscrimination law generally, though it's enforced through civil litigation: Motive is what turns perfectly permissible conduct into civilly actionable conduct. If a university is sued for expelling a student because of the student's conservative political speech, and its defense is that expelled the student for other reasons, the litigation will be all about motive. Likewise if an employer is sued on the grounds that if fired an employee because the employee was Catholic, black, white, female, or whatever else. The legal system does not say "firing is firing; these laws criminalize speech, plain and simple." Now it may well be that a crime in which the victim was picked out because of his sexual orientation isn't materially different from a similar crime committed for most other reasons. It may well be that, even if there is a material moral and practical difference, drawing the line between the different motivations may be socially corrosive in various ways. It may well be that, even if there is such a difference, determining the speaker's motivations may too often require a focus on the speaker's political views, and might thus have too much of a deterrent effect even on lawabiding people. And it may well be that the laws are sometimes abused to actually punish constitutionally protected speech (rather than just using it as evidence of intent to commit a nonspeech crime). As I said, I generally oppose hate crime enhancements, for a mix of these reasons. But "A murder is a murder; these laws criminalize speech, plain and simple" (and variants of this) is not, I think, a sound ground for opposition. References 1. http://volokh.com/posts/1180033239.shtml#221394 _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
