Hate Crimes and Terrorism in the United States - Hate Crime Legislation
laws law motivated speech
In 1990 Congress passed the Hate Crime Statistics Act (PL 101-275), which required the attorney general to "acquire data … about crimes that manifest evidence of prejudice based on race, religion, sexual orientation or ethnicity" and to publish a summary of the data. The Hate Crimes Statistics Act was amended by the Violent Crime and Law Enforcement Act of 1994 (PL 103-322) to include bias-motivated acts against disabled persons. Further amendments in the Church Arsons Prevention Act of 1996 (PL 104-155) directed the FBI to track bias-related church arsons as a permanent part of its duties. In 1990 only 11 states reported information on hate crimes. By 2002, 12,073 law enforcement agencies reported their data.
According to data released by the Anti-Defamation League (ADL) in 2003, four states—Arkansas, Indiana, South Carolina, and Wyoming—had no laws that assigned criminal penalties to hate crimes. In one of these states, Arkansas, hate crimes are considered civil matters, not criminal offenses. In Wyoming, there are no laws specifying whether hate crimes require civil actions or criminal penalties. Forty-six states assign enhanced penalties to hate crimes, meaning the penalty for a crime is increased if the prosecutor is able to prove the attack was hate-motivated. Most states and the District of Columbia have statutes specifically addressing vandalism of places of worship and cemeteries. Thirty states and the District of Columbia included crimes motivated by sexual-orientation bias in their definitions of hate crimes.
The constitutionality of these laws has been challenged on the grounds they punish free thought. In 1992 the U.S. Supreme Court, in R.A.V. v. City of St. Paul (112 S.Ct. 2538), found a Minnesota law outlawing certain "fighting words" unconstitutional. In this case, the defendant had burned a cross "inside the fenced yard of a black family." The Court ruled that
Although there is an important governmental interest in protecting the exercise of the black resident's right to occupy a dwelling free from intimidation, we cannot say that, under the circumstances before us, the government interest is unrelated to the suppression of free expression.
A law limiting pure speech or symbolic speech can only be upheld if it meets the "clear and present danger" standard of Brandenburg v. Ohio (395 U.S. 444, 1969). This standard means that speech may be outlawed if it incites or produces "imminent lawless action."
In June 1993, however, the Supreme Court, in Mitchell v. Wisconsin (113 S.Ct. 2194), upheld laws that impose harsher prison sentences and greater fines for criminals who are motivated by bigotry. The Court found that such statutes as the Wisconsin law do not illegally restrict free speech and are not so general as to restrict constitutional behavior.