Many states and the federal government have enacted hate crimes statutes. When hate crimes statutes criminalize speech, including expressive conduct, a First Amendment analysis is appropriate. When hate crimes statutes enhance a penalty for criminal conduct that is not expressive, the First Amendment is not applicable. 1
Hate crimes statutes punish conduct that is targeted at specific classifications of people. These classifications are listed in the statute and can include race, ethnicity, gender, sexual orientation, or religion. Hate crimes statutes that criminalize speech can be constitutional under the clear and present danger exception if they are tailored to apply only to speech or expressive conduct that is supported by the intent to intimidate. 2This can include speech and expressive conduct such as threats of imminent bodily injury, death, or cross burning. Hate crimes statutes must be narrowly drafted, and cannot be void for vagueness or overbroad.
Hate crimes statutes that criminalize the content of speech, like a prejudicial opinion about a certain race, ethnicity, gender, sexual orientation, or religion are unconstitutional under the First Amendment. 3 Statutes of this nature have been held to have a “chilling effect” on free expression by deterring individuals from expressing unpopular views, which is the essence of free speech protection. Although this type of speech can stir up anger, resentment, and possibly trigger a violent situation, the First Amendment protects content-based speech from governmental regulation without strict scrutiny exposing a compelling government interest.
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