Mr. SCHUMER. Professor Smolla.

STATEMENT OF RODNEY A. SMOLLA, ARTHUR B. HANSON PROFESSOR OF LAW, AND DIRECTOR, INSTITUTE BILL OF RIGHTS LAWS, COLLEGE OF WILLIAM AND MARY, MARSHALL-WYTHE SCHOOL OF LAW

Mr. SMOLLA. Thank you, Mr. Chairman.

I agree generally that this law is constitutional for the reasons already articulated by Floyd Abrams and Professor Tribe.

Two qualifying points that I think will illuminate a lot of what is at the heart of the issue. I do believe the Sentencing Commission in implementing this law would have to distinguish, as is it went through the Federal statute books, between those crimes that are themselves based upon speech, crimes in which expression is an element of the crime, and crimes that have nothing to do with expressive activity and they are simply a racist motivation, for example.

I use a couple of examples in my testimony. It is a crime to attempt to assassinate the President. If someone were to make the attempt and we were to enhance the sentence because we were able to demonstrate that the attempt was based on racial hatred, I don't think there would be any first amendment problem. But it is also a crime to threaten the President. I think if we were to take a person that had made a threat against the President, that otherwise met first amendment standards, and then enhance it because it was a racist threat, that would fall within the R.A.V. ruling and would violate R.A.V.

Similarly, it is a crime to distribute obscene material. But if we were to enhance penalties for those who are convicted of distributing obscenity because it is racist obscenity, I think you would fall within the prescriptions of R.A. V. So I do think the sentencing commission will have that restraint placed upon it.

Second, Dawson has been cited, correctly, for the proposition that it is permissible to take into account this motivation. But there is, I think, an important qualifying element to Dawson. Dawson quite clearly draws the classic free speech distinction between abstract belief and penalizing you for your specific motivation. I think that would have to be maintained as it is applied by judges.

I want to get, though, to the heart of the matter that Marty Redish and Susan Gellman have raised. It seems to me that the simple answer to them, but not a satisfying answer, is that they are expressing, along with the Wisconsin Supreme Court, what they wish the first amendment said, what it ought to be. But it is simply not the current state of constitutional doctrine, for the reasons that Floyd Abrams and Lawrence Tribe have already demonstrated.

I think the quote in R.A.V. in which Justice Scalia specifically says that philosophical doctrines do not protect one, take care of that. But that ought not fully satisfy you. It doesn't fully satisfy me. Because what if they are right?

What if philosophically, even if existing doctrine does not make this law unconstitutional, it should, either as a matter of principle or in terms of how the first amendment ought to evolve? I think they are wrong. Although I am an ardent advocate of protection of

free speech, I do not think we ought to conceptualize this as a form of thought control not permitted by the first amendment. And I want to try to very quickly tick off my reasons, and then we can have a more constructive debate and dialog.

I think you have to first give credit where credit is due in terms of their argument. They are certainly correct in saying that there is a thought penalty element to what will happen here. The fact is, the length of time you spend in jail will be based on what you were thinking and feeling and motivated by at the moment you committed an act.

Second, I think Professor Gellman raises some perplexing hypotheticals. I think the hypothetical regarding enhancement based on one's views on abortion or flag burning are difficult, but there are answers to them. First, I think they have not fully satisfied what ought to be their burden to distinguish how this is distinguished from civil rights acts.

It seems to me in her terms, the civil rights acts are based on largely impermissible motive. Think about this. A man comes into my house and wants to buy my house or wants a job. Can I turn the person down because of the look on his or her face, because of some arbitrary reason I have, and traditionally there is no legal remedy. But if I turn the person down because of the color of his or her skin, and that is proven that that was my motivation, that violates the Fair Housing Act or that violates the Civil Rights Act of 1964.

Third, with regard to the notion that you cannot distinguish between laws based on abortion or flag burning, your intent, the legislative intent behind the statute is important in assessing its constitutionality.

It is possible for you to articulate reasons for this bill that are unrelated to the suppression of free expression. The vindication of human dignity, the perception that there is greater harm to the community, and so on. But do I not think the Texas Legislature could articulate a rationale for an enhancement of any cloth burning law based upon the opprobrium that people feel when they see the flag burned that was not phrased in terms of expression and wasn't clearly motivated if you look at the legislative history in terms of a desire to suppress a particular viewpoint.

Finally, very, very briefly, it seems to me there is an important philosophical difference between saying to somebody that you have a racist motivation in your head, and then you take the trouble to articulate it and to do something as evil as burn a cross or march through the streets with Klan regalia. You engage in the marketplace in expression. You take that evil thought and you put it out there. And then we say, that has now graduated to the level of the marketplace of ideas, and we protect it.

And another thing to say, you have this thought and the only thing you bother to do is shoot somebody, you have this hatred and you shoot somebody, and that somehow is expressive and that somehow triggers some sacred protection. That is a profound common sense and philosophical difference and justifies the distinction implicit in the bill.

[The prepared statement of Mr. Smolla follows:]

PREPARED STATEMENT OF RODNEY A. SMOLLA, ARTHUR B. HANSON PROFESSOR OF LAW, AND DIRECTOR, INSTITUTE BILL OF RIGHTS LAW, COLLEGE OF WILLIAM AND MARY, MARSHALL-WYTHE SCHOOL OF LAW

On its face, H.R. 4797, the "Hate Crimes Sentencing Enhancement Act of 1992," is a content-neutral law passed to vindicate substantial governmental interests unrelated to the suppression of free expression. Thus the Bill as drafted does not, on its face, violate the First Amendment.

In applying the law pursuant to its mandate to promulgate regulations providing for sentencing enhancements, however, the United States Sentencing Commission must avoid violation of the principles announced in the Supreme Court's recent holding in R.A.V. v. City of St. Paul.' Specifically, the Commission must distinguish between offenses in which expression itself is not an element of the crime, and offenses that explicitly penalize expressive activity.

1

U.S.--, 112 S.Ct. --, 118 L.Ed.2d --, 60 U.S.L.W. 4667 (June 22, 1992). (At the time this statement was prepared, page citations to the Supreme Court Reporter or Lawyer's Edition Reports were not yet available.)

2

Laws that increase the penalties for bias-motivated crimes in which expressive activity has nothing to do with the elements of the crime do not appear to be affected by the R.A.V. ruling, and should not run afoul of the First Amendment. "Where the government does not target conduct on the basis of its expressive content," the Court in R.A.V. stated, "acts are not shielded from regulation merely because they express a discriminatory idea or philosophy."2 This passage apparently means that increasing the penalty for battery from one year to two years when the perpetrator is motivated by racism does not implicate any serious First Amendment

concerns.

When the criminal act itself involves regulation of expressive activity, however, R.A.V. would be implicated, and the logic of the case appears to dictate that penalty enhancement provisions for speech-related crimes would be unconstitutional. It would thus

seem to follow from R.A.V. that a state could not impose a maximum penalty of one year in jail for violating its general fighting words provision, but permit a maximum penalty of two years in jail for "racist fighting words." Given that R.A.V. does not allow the government to even have a fighting words statute narrowed to the subset of fighting words on "disfavored topics," such as "racist fighting words",3 it must naturally follow that the government may not have two sentencing structures for fighting words offenses, with higher penalties for persons who speak in the disfavored

terms. This would be precisely the type of viewpoint-based

discrimination that R.A.V. so strongly condemns.

II.

Substantive Analysis

1.

[a]

The First Amendment and the Sentencing Process

Distinguishing Between the Language of H.R. 4797 "On Its
Face," and the Application of its Provisions Through
Guidelines Promulgated by the Sentencing Commission

For reasons discussed at greater length subsequently in this Statement, H.R. 4797 does not, "on its face," violate the First Amendment. It is not a "hate speech" law but a "hate crimes" law. It is not directed to freedom of expression, but to "a crime in which the defendant's conduct was motivated by" prejudice."

In implementing the directives of H.R. 4797, however, the Sentencing Commission could run afoul of the First Amendment, by violating the precepts of the Supreme Court's recent decision in R.A.V. V. City of St. Paul.6 If the Commission does not distinguish among various types of federal offenses, the Commission may violate the First Amendment by effectively transforming some federal statutes into content-based or viewpoint-based penalties on free expression. To avoid a constitutional violation, the Commission must distinguish between offenses in which expression

4 See the discussion of the O'Brien case, and the qualifying statements the Supreme Court placed within its R.A.V. ruling, at pages 33-34, infra.

5 H.R. 4797, § 2(b) (emphasis added).