Hate Laws
Hate laws refer to legal statutes that impose additional penalties on individuals convicted of crimes motivated by bias against certain characteristics of victims, such as race, religion, sexual orientation, gender identity, or disability. In the United States, these laws emerged in the 1960s, notably reinforced by the Civil Rights Act of 1968, which targeted crimes that interfere with federally protected activities. These laws operate on the principle that hate-motivated crimes have a broader societal impact, instilling fear within entire communities beyond the immediate victim.
While hate crime laws increase penalties for criminal acts based on bias, they differ from hate speech laws, which have largely been deemed unconstitutional due to First Amendment protections. For instance, expressions of bigotry alone do not constitute a hate crime unless paired with an unlawful action, such as assault or property damage. The constitutionality of hate crime laws has been affirmed by the Supreme Court in cases like Wisconsin v. Mitchell, emphasizing that these laws focus on conduct rather than speech.
Opposition to hate laws often centers on concerns about their potential to criminalize thoughts rather than actions, as well as the challenge of distinguishing between protected speech and actionable hate. Nevertheless, proponents argue that such laws are necessary to address the unique harm caused by bias-motivated crimes, which can threaten the safety and dignity of entire communities. As societal views evolve, hate laws continue to adapt, reflecting ongoing discussions about justice and equality.
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Subject Terms
Hate Laws
DEFINITION: Laws that impose additional penalties on criminals who target victims based on the victim's race, religion, ethnicity, sexual orientation, gender identity, or disability status
SIGNIFICANCE: In the United States, hate laws add penalties to crimes (such as assault) that are motivated by bigotry; in some countries, hate laws criminalize bigoted forms of expression
The first hate laws were enacted in the United States in the early 1960s. The Civil Rights Act of 1968 made it a federal crime to "injure, intimidate, or interfere with anyone . . . by reason of their race, color, religion, or national origin" by "force or threat of force" when the victim is attempting to engage in a federally protected activity, such as voting or attending school. Almost all American states, the District of Columbia, and many cities have some kind of hate crime law.
Hate Speech Laws
Hate speech laws in the United States have largely been found to be unconstitutional under the First Amendment's protection of free expression. An example of a hate speech law was an ordinance enacted in St. Paul, Minnesota, in 1990. It read:
Whoever places on public or private property a symbol, object, 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.
Several states have enacted laws that prohibit specific activities frequently associated with hate. For example, Virginia has a statute that makes it a felony to engage in cross-burning with the intent to intimidate any person or group. The statute's constitutionality was challenged in the Supreme Court case Virginia v. Black (2003), which struck down the statute for treating cross burning as prima facie evidence of intent to intimidate but upheld the right of states to ban cross burnings that are proven to have been carried out with the intent to intimidate.
Hate Crime Laws
Most hate crime laws in the United States concern criminal acts that are motivated by the victim’s race, religion, national orientation, or other category. They operate by increasing the punishment for the underlying criminal act when they are based on bias. Therefore, these laws are frequently called "bias crimes" or “penalty enhancers.”
Hate crime laws differ from hate speech laws in that they require more than just offensive expression. For people to be punished for hate crimes, they must commit some act or acts that would be otherwise considered criminal. For example, people could not be prosecuted under a hate crime law merely because they called another person a racially derogatory name, or because they wore shirts containing offensive images, such as swastikas. People could, however, be punished if they trespassed on another person’s property to burn a cross—in fact, the youth in the R.A.V. case was successfully prosecuted for this act under Minnesota’s hate crime law—or if they assaulted another person. Thus, while speech alone cannot be punished by hate crime laws, the offenders’ speech is often used as evidence to prove that they were motivated by hate in committing the crime.
Federal law in the United States prohibits crimes that are motivated by the victim's race, religion, ethnicity, nationality, gender, sexual orientation, gender identity, or disability. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, passed in 2009, removes the requirement that the victim of a crime be engaged in a federally protected activity for the crime to be considered a hate crime.
While opposition to hate crime laws has not been as strong as opposition to hate speech laws, many commentators have argued that hate crime laws are unconstitutional in that they punish thoughts rather than just actions. Opponents also have argued that these laws violate the US Constitution because often, the bulk of the evidence that is used when prosecuting people under these laws—and sometimes the only evidence—is the defendants’ words or hate group membership. Both bigoted speech and hate group membership, however, are protected by the First Amendment, leading to the argument that the defendant is being additionally punished for legal acts.
The Supreme Court ruled on the constitutionality of hate crime laws in the 1993 case of Wisconsin v. Mitchell. In this case, a young Black American man urged his friends to attack a White youth who happened to be walking down the street. The youth was severely injured. The prosecution alleged that Mitchell’s actions were motivated by racial animosity. Mitchell claimed that Wisconsin’s hate crime law—which was very similar to most penalty enhancers—was unconstitutional because it interfered with his freedom of expression and because it was too vague. The Supreme Court, in a unanimous opinion, disagreed. It found that the law was permissible because, unlike the St. Paul ordinance, it punished conduct, not expression. The offender’s speech might have been used as evidence, but it was not the speech itself that was being punished, but rather his actions. The Court concluded that there were good reasons to punish hate-motivated crimes more severely than ordinary crimes and that the law would still permit people to express bigoted views, so long as they do not act on them. The Court also held that the statute was clear and specific enough to permit ordinary people to understand and, therefore, was not too vague. Proponents of hate crime laws argue that bias-motivated crimes merit stronger penalties because such crimes intimidate all members of the victim's group in the community, making the impact of the crime greater than the impact on the individual victim.
Laws that protect individuals against hate crimes continue to evolve to meet societal needs. For example, in the 2010s, some states began classifying attacks on police officers and emergency responders as hate crimes. In 2022, the Emmett Till Antilynching Act became the first anti-lynching bill signed in decades.
Bibliography
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