PREPARED STATEMENT OF SUSAN GELLMAN, ASSISTANT PUBLIC DEFENDER, OHIO PUBLIC DEFENDER COMMISSION, AND ADJUNCT PROFESSOR, CAPITAL UNIVERSITY LAW SCHOOL

INTRODUCTION

The drafters of H.R. 4797 undoubtedly were acting with the best of intentions. Bigotry and bigotry-related crime are indeed serious problems in our society. However, neither the seriousness of the problem addressed nor the laudable objectives of the bill eliminate the necessity of compliance with the Constitution.

In its present form, H.R. 4797 is unconstitutional. As it is both content-based and viewpoint-based, it directly violates the First Amendment. Just this last term, the Supreme Court twice held that the First Amendment prohibits such regulations. See R.A.V. V. City of St. Paul, Minnesota': Simon and Schuster, Inc. v. Members of the New York State Crimes Victims Board. In addition, the bill indirectly violates the First Amendment through its inevitable (and probably exclusive) reliance on protected expression and association for evidence of the "hatred, bias, or prejudice" element, and through its chill of protected expression. Furthermore, H.R. 4797 violates the Due Process Clause of the Fifth Amendment because it is impermissibly vague in several respects, giving inadequate notice of what it prohibits and inviting arbitrary and discriminatory enforcement. Finally, the bill would violate the Equal Protection Clause of the Fifth Amendment, because it treats people who commit the same offense differently based upon their government-disapproved beliefs.

Not only would the proposed law be unconstitutional, in its present form it is inadvisable as a policy matter. There is very

little to be gained, and potentially much to be lost, by its enactment. The law is likely to be largely ineffective in further deterring bias-motivated acts that are by definition criminally punishable already. At the same time, there will be high costs to society generally and, ironically, particularly to the very groups ostensibly meant to be protected by this law.

The tragedy of bigotry in our society and the majority consensus that bigoted beliefs are worthless and harmful naturally leads us to listen sympathetically to appeals to make an exception even to our most precious and carefully guarded liberties. Nevertheless, handing over to government the power to determine that some viewpoints and opinions are "bad" or "wrong" is both unconstitutional and unwise. Fortunately, other approaches are

available.

I. Unconstitutionality

A. First Amendment: direct violation

Today the Congress contemplates punishing bias and prejudice based on race, gender, and so forth. Persons of good will agree that such attitudes are ignorant and abhorrent, and so may fail to see the danger in allowing their particular punishment. But if today the government is given the power to punish those beliefs, then how can we say tomorrow that Congress, state legislatures, and local authorities may not enhance penalties for offenses "motivated by opposition to abortion"? Or "support for abortion"? "motivated by disagreement with a court's verdict"? "Disapproval

ΟΙ

of a war"?

In R.A.V. v. City of St. Paul, the Supreme Court stressed that the First Amendment forbids content-based and viewpoint-based punishment of expression, even expression that is proscribable on other bases. Proscribable categories of expression, said the Court, are not "entirely invisible to the Constitution. . . Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the

government. "3 By the same token, government may not punish proscribable conduct at one level, and then impose additional penalties when the conduct evidences a government-disapproved message or opinion: "The First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects."" Yet this is exactly what H.R. 4797 seeks to do, and why, if enacted, it would be held unconstitutional.

By definition, all the conduct reached by H.R. 4797 is already punishable. All that the bill adds is an additional and severe penalty for the offender's motivation for committing the offense, thus creating a thought crime. Moreover, not all motivations trigger the operation of the bill: only those involving a statedisapproved viewpoint of the offender receive extra punishment. Such viewpoint-based discrimination was specifically rejected by the Court in R.A.V.5

The proponents of H.R. 4797 contend that the greater harm caused by bigotry-motivated crime justifies the additional

punishment.

The R.A.V. Court considered this argument, acknowledging the special harm of bias-related crime and the state's interest in recognizing and protecting particular vulnerabilities of groups who have historically been victimized. Nevertheless, even this compelling interest did not, said the Court, justify the content and viewpoint basis for punishment. The Court noted that "[w]hat makes the anger, fear, sense of dishonor, etc. produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc. produced by other fighting words is nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be evaded that easily."6 Similarly, in Texas v. Johnson and United States v. Eichman, the Supreme Court did not disagree that flag burnings cause greater and more widespread effects than other unlawful burnings. But because the "plus" element was the impact of the offender's opinion, the content of his or her message, it could not constitutionally be the basis for additional punishment.

So it is with H.R. 4797. The drafters of the bill commendably wished to address the special pain of the victims of bias-motivated crime, and the indirect effects upon others. Bigotry and hatred surely do cause fear, sorrow, and alarm when they are expressed through criminal acts. However, bigotry and hatred also cause

fear, sorrow, and alarm when they are expressed through books, speeches, and rallies. Without question, the First Amendment forbids the punishment of those activities.

Moreover, the bill does not even address those special harms. By its own terms, the bill does not upgrade offenses based on additional harm to the victim or others, but rather based on the offender's motivation, and his or her "hatred, bias, or prejudice." As the Supreme Court of Wisconsin stressed in State v. Mitchell," a recent opinion striking down that state's analogous "hate crimes" enhancement statute, motivation is nothing more than the offender's thoughts, not a part of his or her conduct or its effects. Said that court, because the law "does not punish the underlying criminal act, [but only] the defendant's motive for acting... it is clear that the hate crimes statute creates nothing more than a thought crime."

As for hatred, bias, and prejudice, repugnant as they may be, they are indisputably opinions and beliefs on social issues, and as such are constitutionally protected from punishment. The Supreme Court has often repeated its admonition that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . The First Amendment does not guarantee that other concepts virtually sacred to our nation such as the principle that

discrimination based on race is odious and destructive

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will go

Justice Jackson,

unquestioned in the marketplace of ideas. 10 writing for the Court in West Virginia Board of Education v. Barnette, 11

eloquently summed up the matter: "[T]he freedom to differ is not limited to things that do not matter much. That