of this subcommittee as we consider H.R. 4797, and I want to thank all of them for coming.

This hearing is really an important one in terms of charting our way and helping States and others.

I would now like to recognize the ranking member of the subcommittee, Mr. Sensenbrenner, who is seated in a different seat than usual.

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman.

The reason I am seated here is that my presence is going to be required on the floor for most of the day, because my other ranking position is on the Space Subcommittee, and the funding of the space station is going to be up on the floor. And, I would like to apologize to the witnesses that I can't be in two places at once, and it is not because of a lack of concern over the subject matter that is before this subcommittee today.

Let me also say that I don't have my staff write opening statements for me. I learned earlier on when the former Senator from my State, Mr. Proxmire, was reading a speech that had been written by staff, and halfway through it he looked at it and said, I don't agree with what is being said here, and tossed the speech aside and spoke at length on what he did believe in. So lest I fall into that trap, I do my own opening statements.

Let me say that conservatives are as puzzled as liberals at the seeming inconsistencies in the Supreme Court's interpretation of the first amendment in the term just concluded. The decision relative to hate crimes, basically stating that there are other adequate ways to punish those who are guilty of hate crimes, is very troubling to me, because the Court didn't really say what it would bless in terms of punishment of something that is obviously a racially oriented or a gender oriented or a national origin oriented crime. Coupled with that, the decision that came down a couple of weeks after that, that prayers beginning high school commencement exercises are a violation of the first amendment, leads me to believe that perhaps what the Court is telling us is that it is OK to burn a cross on the lawn of the school as long as one does not say a prayer before setting the cross on fire.

Now, perhaps the witnesses today can try to get us through that thicket, because I haven't been able to do so. I do think, seriously, that there should be enhanced penalties for those that commit racially oriented crimes, at least as a prosecutorial tool to try to obtain a conviction of those people who are responsible for doing that. When I was in Brooklyn, at the field hearing the chairman held in his own district, we met in the basement of a synagogue where swastikas had been painted. The young man who pleaded guilty to this crime said that he did not know why Jewish people would be offended at the sight of a swastika. That to me is a shocking indictment on our education system, that it is so poor that someone who is 15 years old wouldn't realize that fact. But I was really wondering what someone who did something like this could really be convicted of, particularly as a juvenile.

And it seems to me that what we ought to do is put as many arrows in the quivers of prosecutors as is humanly possible to try to stamp out these kinds of racially oriented and bigoted crimes. That is why I hope that there is a way that we can get around the Su

preme Court's decision with the chairman's bill and pass something that will also pass muster with the Supreme Court.

So again, I apologize for having to leave now, but those are my thoughts, not written by staff.

Mr. SCHUMER. I would like to tell the gentleman that my statement is written by me and then edited by staff. Somehow they threw in a few little choice bits.

Mr. Sangmeister.

Mr. SANGMEISTER. I didn't ask staff to do either. So we will proceed with the witnesses.

Mr. SCHUMER. Mr. Schiff.

Mr. SCHIFF. Two very brief comments. First of all, I agree there are distinctions between criminals. I think those who wish to rob the American people by raising taxes are guilty only of ignorance in their crime in believing that that will somehow promote economic development.

Oh, I am sorry.

Mr. SCHUMER. This is called field day on the chairman.
Mr. SCHIFF. The chairman started it, I do believe.

Seriously, Mr. Chairman, I appreciate you holding this hearing because it brings to light the ever difficult problem of trying to reconcile having a multicultural, multiethnic, multiracial society in which we intend to promote tolerance and respect for each other, with our firm belief in the first amendment and freedom of speech and freedom of expression. It is always difficult. I am looking forward to hearing from the witnesses.

One matter I would like to put out in advance, it is my understanding that previous cases before the Supreme Court deal with words or actions which in and of themselves constitute the entire hate crime, and whether you can make a crime out of mere words, if you will. It is my understanding that the chairman's bill, H.R. 4797, does not do that. Instead it would enhance sentencing after conviction for another independent, already existing crime.

In other words, if somebody were to commit a battery, battery is battery, by example, but if they committed a battery and it could be shown at sentencing that it was for hate-motivated reasons, in my mind it is distinguishable from creating the crime in the first place.

Thank you, Mr. Chairman.

Mr. SCHUMER. Thank you, Mr. Schiff, for your as usual erudite comments on matters of law, not matters of politics.

Let me now welcome our first panel, one witness, Prof. Lawrence Tribe of the Harvard Law School. Professor Tribe, I need not tell everybody, is a nationally known scholar on constitutional issues. He is the author of one of the leading treatises on American constitutional law, and has argued numerous cases of import before the Supreme Court of the United States. Professor Tribe is very kind, he has other time commitments and managed to squeeze us into his schedule, and that is why he is here first on the panel himself.

The entire committee appreciates very much your efforts to be here to help us with an issue which we really do need some clarification on. Your entire statement will be read into the record. You may proceed as you wish.

STATEMENT OF LAWRENCE H. TRIBE, PROFESSOR OF
CONSTITUTIONAL LAW, HARVARD LAW SCHOOL

Mr. TRIBE. Thank you very much, Mr. Chairman, and thank you for accommodating this scheduling problem.

I do want to briefly commend the subcommittee for tackling this very serious issue during a political season where just about everything that is not directly relevant to the November election gets shortchanged. And I am quite honored to be invited.

I am especially concerned with this issue because of how widely the Supreme Court's recent hate speech decision in the St. Paul cross-burning case, R.A.V. v. St. Paul, has in my view been misunderstood, and how dangerous it would be for the misreading of R.A.V. to go undirected.

With all respect to Congressman Sensenbrenner, it is certainly not my objective here to help the committee find a way around R.A.V. I believe that, properly understood, R.A.V. imposes no obstacle whatever to the straight line the committee needs to pursue to its goal.

Before answering the committee's questions, and since my statement has been read into the record, I just want to say a few words about H.R. 4797, and why I am quite confident it is a fully constitutional hate crimes measure.

The key point can't be emphasized too strongly. H.R. 4797 does not outlaw or punish ideas or speech at all. It is not a hate speech law. It is a hate crimes law. All it does is tell the U.S. Sentencing Commission to enhance the punishment for any Federal crime where the defendant's already criminal conduct, as Congressman Schiff points out, is motivated by a factor like racial hatred or religious or ethnic bias.

Nothing in the U.S. Constitution prevents the Government from penalizing with added severity those crimes directed against people or their property because of their race, color, religion, national origin, ethnicity, gender, or sexual orientation, and nothing in the Constitution requires that that list be infinitely extended to include every possible category of hate crime.

Neither the first amendment nor anything else in the Bill of Rights has ever been construed or could plausibly be construed either to compel the Government to overlook the especially vicious nature of such crimes or to define them so broadly and sweepingly as to encompass the entire arguably relevant universe.

In fact, well over a century of our constitutional law firmly establishes the authority of government to treat even conduct that is otherwise lawful, like refusing to hire somebody, or refusing to sell someone a house, as illegal, and indeed even criminal, based entirely on the religiously or racially or sexually discriminatory motive of the employer or seller.

The fact that these antidiscrimination laws might not, for example, include protections against politically motivated refusals to sell, to anticipate a point that I see is in Professor Redish's testimony, is surely not a basis for questioning their constitutionality. I think it is frankly-and I don't use the word lightly, because I greatly respect those with whom I disagree there-but I think it is frankly ridiculous to suggest that H.R. 4797 is constitutionally dubious because it treats conduct that is independently unlawful

and indeed criminal as especially evil and thus deserving of enhanced punishment whenever the criminal can be proven to have stalked or targeted his or her victim on the basis of the victim's race, religion, sex or other specified characteristics.

And to cast constitutional doubt on H.R. 4797 on that score is to imply quite absurdly, in my view-that the Jewish victims of Kristalnacht suffered no legal wrong besides broken shop windows, or that the African-American victims of racial lynching suffered no recognizable wrong distinct from manslaughter, or that the victims of gay-bashing suffer no legally recognizable injury besides cuts and bruises.

The truth is that being victimized by virtue of our race, religion, or other immutable and morally neutral personal characteristics is universally acknowledged to represent an affront to one's humanity and dignity and individuality over and above whatever tangible scars and bruises the wrongdoer has inflicted, and over and above whatever terror the wrongdoer might inflict upon the community, to anticipate a point I gather Professor Gilman intends to make. That is true in every civilized nation in the world. And I submit that our Constitution does not commit to us any less civilized or humane a regime of law.

Now, of course the Government in all such cases must establish something about what was going on in the criminal's mind, the defendant's intent or motive or mental state. For purposes of the constitutional analysis, it is a red herring to make a big deal of the difference between intent and motive. They are all the same. They all deal with what is going on in your head.

And, of course, the Government in these cases must look inside the head, sometimes, to prove that the defendant in fact targeted the victim on the basis of a forbidden characteristic, like the victim's race or sex or sexual orientation. But that in no sense makes such a prosecution a form of thought control. Frankly, that is just demagoguery. Otherwise, virtually every legal norm whose definition includes a mental element would represent an Orwellian form of thought control.

Consider just a few examples of what the contrary view would entail, and why I think it so vital that this committee not be deflected by illusions about R.A. V. The Supreme Court held a little while back in Gertz v. Welsh that private individuals who claim defamation can recover punitive damages from the media only on proof of the defendant's actual malice. According to the opponents of this measure, the Court must itself have been violating the first amendment rather than implementing it by setting up judges and juries as thought police.

The Supreme Court held just this spring in Georgia v. McCollum and last year in Edmondson v. Leesville that private parties in civil and criminal cases cannot use peremptory challenges to strike jurors in a racially prejudiced manner.

Now, according to the opponents of H.R. 4797, the Supreme Court was again violating the first amendment by outlawing racial bias and imposing political correctness.

Over 20 years ago, the Supreme Court narrowly interpreted the 19th century Ku Klux Klan Act against certain private conspiracies and assaults, in order to save the act from constitutional attack on

federalism grounds-to prevent it from becoming a body of Federal tort law. The Court did that by construing the act to require, as an element of the cause of action, invidiously discriminatory motivation in the sense of some racial or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators' action. In fact, the whole controversy about whether the Ku Klux Klan Act can be used against Operation Rescue turns on the question of whether targeting women who want to exercise their reproductive freedom is a form of sex discrimination analogous to race discrimination. That whole inquiry would violate the first amendment if those who oppose this law were right. And if they were right, far from saving the Ku Klux Klan Act by that longstanding limiting construction, the Court would have rendered it violative of the first amendment.

In the same factual vein, the requirement in a title VII case that plaintiffs seeking punitive damages must prove an employer's discriminatory intent or motive would violate the first amendment. Yet, the Supreme Court last month, in R.A. V. itself, expressly endorsed the validity of title VII's antidiscriminatory provisions.

The Court in R.A.V.-in a decision that I applauded-held only that government cannot engage in "official suppression of ideas," "silencing speech on the basis of its content." Thus St. Louis was told that, even if the only speech it chose to outlaw consisted of unprotected fighting words, it couldn't selectively target for prohibition those fighting words-I am quoting the Court now-that "contained messages of bias motivated hatred," any more than the State can select for prohibition unprotected fighting words that happen to be critical of Congress or unprotected obscenity, but only when it contains religiously offensive connotations.

Selective punishment based on message directly penalizes speech. Selective punishment based on motive merely adjusts government's response to the reasons for a defendant's physical acts, in a way that has centuries of precedent.

It was Holmes who said that the law transcended its atavistic origins when we began looking inside the defendant's head, and now we are told that is a form of thought control.

Of course, hate crimes-typically, although not invariably-express a discriminatory philosophy. But listen to what the Supreme Court had to say in R.A.V.: "Where the Government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy."

Let me suggest it is by no means the case that all or necessarily even most hate crimes are expressive in that sense. Cases are commonplace where the Government has a hard time proving that conduct was in fact racially or religiously motivated. The defendant— it might be a real estate agent or an employer-may have engaged in quite a coverup to make it look like there was another reason. But if you can prove that the crime was committed, the act done, the harm inflicted by virtue of one of these characteristics, you have succeeded. So it is not at all the expression that is being punished.

There is a final set of first amendment arguments that I understand will be presented by the ACLU. I am not often in such pro