would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." Throughout our history, many beliefs have been seen as "wrong" and even dangerous to society. Abolitionism, women's suffrage, communism, and opposition to the Vietnam War were each so viewed in their times. The First Amendment shielded them all not because of their intrinsic worth as ideas, but because of their believers' right to believe them. Tying the punishment of opinion to a punishment for illegal conduct does not avoid the constitutional violation. Indeed, because all the conduct is already punishable, the additional penalty is imposed solely for the offender's beliefs, and only those beliefs that the government declares disfavored. Thus, reliance on United States v. O'Brien, the draft card-burning case, is misguided. O'Brien teaches that the government may punish conduct despite an incidental effect on expression or belief. H.R. 12 4797, by contrast, would punish conduct more severely because of its expressive elements. The Court reiterated in R.A.V. and Johnson that this is precisely what the First Amendment forbids. In O'Brien itself, the Court stressed that Mr. O'Brien was being punished for his conduct in destroying his draft card, and for nothing else. He could not, consistent with the First Amendment, have received additional penalties because the act was "motivated by hatred" of the government, "based on" opposition to the Vietnam War. 13 For this reason, it is irrelevant, for purposes of the First Amendment, that the bill is directed toward the sentencing guidelines and not toward creation of a separate offense. Either way, the punishment based on content and viewpoint offends the Constitution.14 If this were not the case, then the State of Texas could have circumvented the Constitution to punish flag burners by the simple expedient of criminalizing all public burnings (certainly a legitimate exercise of its police power), and then upgrading the level of the offense for anyone who committed it "motivated by" unpatriotic prejudice. Not a single instance of the conduct contemplated by H.R. 4797 need go unpunished. The First Amendment does not require that the beliefs and expression involved in any act insulate otherwise criminal conduct from punishment. However, there can be no additional punishment imposed for those beliefs and expression. Thus, the Court in R.A.V. rejected the government's argument that a content- and viewpoint-neutral law could not sufficiently serve its objectives. The Court said: In fact the only interest distinctively served by the - Let there be no mistake about our belief that burning a Congress, too, has at its disposal adequate, content-neutral means to punish these crimes. It may even be possible to impose greater penalties than are already imposed for the underlying offenses (an example of a non-content-based approach is set forth below in Section III). It simply cannot do so in a way that draws distinctions based on offenders' thoughts and beliefs, even those thoughts and beliefs that are hatreds, biases, and prejudices. Justice Holmes once wrote, "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate. "16 - As B. First Amendment: indirect violation As the Wisconsin Supreme Court held in Mitchell, statutes such as H.R. 4797 also offend the First Amendment indirectly. Although the bill does not include the expression of bigoted statements as an element, its application must inevitably rely on defendants' speech, thoughts, and associations for evidence of the motivation, hatred, bias, and prejudice it seeks to punish. The proposed law thus threatens to penalize the speech, thoughts, and associations themselves, as they become in practical effect not mere evidence, but a punishable element. It is true that the First Amendment does not per se prevent use of a defendant's words as evidence of other elements of an offense, such as identity or scienter. However, where there is the risk that the defendant's words themselves, and not some other element manifested thereby, will be punished, the law is invalid. Under H.R. 4797, there is no distinction between the use of the actor's words, associations, thoughts, and beliefs as the only possible evidence of a punishable element, and their being a punishable element themselves. By its own terms, the proposed law directly criminalizes motivation, hatred, bias, and prejudice. The Supreme Court and the lower courts have consistently resolved this "evidence as element" problem in favor of First Amendment claimants.17 Furthermore, in addition to any words the defendant uttered at the time of the underlying offense, all of his or her remarks on other occasions, any books ever read, speakers ever listened to, or associations ever held could be introduced as evidence that he or she held racist views and was motivated by them at the time of the offense. Moreover, as H.R. 4797 does not require contemporaneous expression of bigotry, any time anyone is charged with a federal offense, the law could be applied. That person would then face the possibility of government scrutiny of a lifetime of everything from serious intellectual inquiry to ethnic jokes. possibility would lead to habitual self-censorship, or "chill," of expression of one's own ideas, and reluctance to read or hear others' ideas, whenever one feels those ideas might run contrary to popular sentiment on the subject of ethnic relations. Awareness of this Government chill even of bitter invective is not constitutionally permissible. Again, abhorrent or not, racist ideas are undeniably viewpoints on social and political issues. Moreover, epithets and slurs are not the only speech that would be chilled by the proposed law. People sincerely wondering about subjects such as intermarriage, genetic diseases, integration, affirmative action, or sexual harassment will have to think twice about voicing or publishing their "politically incorrect" thoughts, knowing that they could someday be examined by the government and used as damning evidence against them. It is no answer that one need only refrain from committing federal crimes to avoid the punishment for the governmentdisapproved thought. Chill of expression and inquiry by definition occurs before any offense is committed, and even if no offense is ever committed. The chilling effect thus extends to the entire populace, not just those who will someday be accused of a crime. C. Fifth Amendment Due Process: vaqueness When laws are vague, they are held invalid under the Due Process Clause both because they give insufficient notice of the conduct prohibited to allow people to know exactly what they are not permitted to do, and because they invite arbitrary and discriminatory enforcement by giving too much discretion to enforcing officials. H.R. 4797 contains several ambiguities that would require it to be held void for vagueness. First, the terms "hatred," "bias," and "prejudice" are inherently ambiguous. In addition to this facial vagueness, in application they would necessarily require the resolution of impossible questions: How venomous must the hatred be, how |