Posted by Eugene Volokh: An Extra Perspective on the Possible First Amendment Problems Posed by Hate Crimes Laws: http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243377967
I don't think that laws that punish hate crimes -- i.e., criminal acts motivated by the victim's race, religion, sexual orientation, and the like -- are unconstitutional. I think the U.S. Supreme Court's unanimous decision in [1]Wisconsin v. Mitchell gets this right, for the right reasons. Nonetheless, the [2]decision below, in which a person pled guilty for sending racist messages to a city councilman and to the mayor about the city councilman, helps show a problem with such statutes, especially when they cover speech -- even assertedly constitutionally unprotected speech (such as threats, fighting words, telephone harassment, and the like) -- rather than violent conduct. Based on the quoted material, I'm pretty sure the messages should be constitutionally protected, and a thoughtful and well-reasoned decision by [3]the U.S. Court of Appeals for the D.C. Circuit (U.S. v. Popa) supports that view. But according to the defense lawyer, the defendant pled guilty to a misdemeanor, and went to jail because of it, because raising the First Amendment challenge exposed him to a risk of felony hate crime prosecution, which could have led to a much higher penalty. The Columbian (Vancouver, Wash.), reports in its May 20 issue, that "Defense attorney Jon McMullen had considered arguing that the comments were protected as free speech, but facing the possibility of federal charges -- which could have netted Reinhold more than a year in prison -- his client decided to plead guilty." And [4]an earlier article reported that, "Lawyers at the U.S. Attorney's Office became interested in the case and on Friday wrote to Reinhold's defense attorney, Jon McMullen, that they would let the case rest if Reinhold changed his plea.... 'Basically, they said, 'If you fight it down here, win lose or draw, we'll charge in federal court,'' McMullen said." Here, the threat of felony prosecution came from federal prosecutors, but it could equally well have come from state prosecutors under a felony hate crime statute. Now I don't think this makes hate crime statutes unconstitutional, and this sort of pressure to plead guilty to a lesser charge and waive the right to appeal arises in all sorts of cases, not just cases such as this one. Nonetheless, this does highlight one way in which hate crimes laws can endanger free speech, even if this danger doesn't rise to the level of cause the laws to be unconstitutional. And it is one reason that (for instance) people who worry about suppression of constitutionally protected anti-homosexuality speech might be concerned about federal laws imposing harsher penalties for "hate crimes" based on sexual orientation, if those laws are broad enough to cover not just violence but also supposedly unprotected speech. References 1. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=508&invol=476 2. http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243376308 3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=dc&navby=case&no=983017A 4. http://columbian.com/article/20090331/NEWS02/903309975 _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
