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The argument is also made, and I find this very puzzling, that somehow acceptance of the view that this bill is unconstitutional would render employment discrimination under title VII unconstitutional. There is all the difference in the world between the two situations. Employment discrimination is an external manifestation of that discrimination. It amounts to a direct effect on other individuals. It doesn't matter whether the motivation for that discrimination is racial hatred or simply the desire to do more business. In either event, we are dealing with an external effect.

So in that sense, Mr. Chairman, it seems to me that we must find this law unconstitutional because as in R.A.V., we are regulating solely on the basis of a person's thought processes, and that is anathema to our entire system.

Thank you. Mr. SCHUMER. Thank you, Professor Redish, for succinct, rightto-the-point testimony, and for staying in the time limit.

[The prepared statement of Mr. Redish follows:]



I am testifying today on the constitutionality of H.R. 4797, providing enhancement of sentences for federal crimes when the crime was "motivated by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, national origin, ethnicity, gender, or sexual orientation of another individual or group of individuals." My ultimate conclusion is that as attractive as the statute may be on a moral or emotive level, it would constitute a blatant violation of the First Amendment right of free expression's core principle. It should therefore not be enacted.

One might at first find it strange to suggest that regulation of purely non-speech criminal conduct should be deemed to strike at the First Amendment's "core". No one, after all, has a First Amendment right to commit assault, battery, extortion, blackmail, or murder. But H.R. 4797 is unconstitutional not because it renders such activities criminal; other, constitutionally valid laws presumably already do that. Indeed, H.R. 4797 makes no conduct criminal that was not previously proscribed. All that the proposed legislation accomplishes is to render criminally punishable an individual's personally held political or social viewpoint. Moreover, it is not the existence of merely any motivating political viewpoint for criminal activity that is punished. H.R. 4797 does not stand for the proposition that all politically motivated crimes are to receive especially harsh treatment. For example, an individual who murders a Ku Klux Klan member because the victim was a bigot is not subjected to enhanced sentences;

nor is an individual who murders another solely because the victim is a Communist, or

a capitalist, or a Republican. Rather, it is only an individual whose criminal activity

was motivated by racial, religious, ethnic, gender on sexual-preference bias who is chosen for special punishment. By enacting H.R. 4797, then, Congress would effectively be announcing that only certain political and social attitudes are to be punished. It is this aspect of the proposed law that so ominously threatens the first principles of the First Amendment.

It might be responded that the First Amendment's core cannot be threatened by regulation that does not directly inhibit, restrain, or punish protected communicative activity. But the ability to communicate is seriously undermined if government is able to regulate and inhibit the pre-communicative stage of an individual's private political thoughts and attitudes. For a thriving system of free expression -- and a thriving representative democracy, for that matter -- depend for their effective existence on the sanctity of the individual's political thoughts. By definition, democracy requires that the members of society be able to make life-governing decisions. Performance of such a task, in turn, requires that the individual's intellectual capacities remain active and vibrant. When goverment punishes solely for what is contained in a person's mind, the inescapable impact will be the chilling of free thought and the stunting of one's intellectual capacities. As the Supreme Court stated in Stanley v. Georgia, 394 U.S. 557 (1969), "[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men's minds." In short, freedom of thought is the essential catalyst for an effective system of free expression protected by the First

Amendment. By punishing thought, H.R. 4797 thereby attacks the core of that


One might argue, however, that the need to ameliorate the current societal divisiveness caused by racial, religious, and gender-based bigotry constitutes a sufficiently compelling interest to justify what is, at least prima facie, a violation of the free speech guarantee. I am wiling to concede, without any empirical examination, the seriousness of the societal harm caused by such attitudes. I nevertheless cannot accept such a "compelling interest" analysis as a constitutionally acceptable justification for governmental regulation of an individual's thoughts.

It should, at the outset, be noted that acceptance of this analysis would logically justify considerably more than sentencing enhancement; it would also condone direct regulation of the pure expression of such bigoted viewpoints, since presumably it is the very existence and communication of these attitudes that give rise to the societal harm. Yet we clearly could not justify such regulation by the showing of any compelling

This does not mean, of course, that government may not impose more severe punishment for crimes committed with intent or premeditation than for those that are not, even though in a sense the increase in punishment is based on the state of a person's mind. When the Court referred to "giving government the power to control men's minds," it was surely referring only to control of a person's political and social attitudes. For it is those attitudes that are so inherently intertwined with the systems of free expression and representative democracy. And it is only those attitudes that H.R. 4797 seeks to punish.

interest, because to do so would miss the entire point of our democratic system. A commitment to societal self-determination inherently carries with it a recognition that society may choose to reach results some of us find offensive or simply wrong. Any society in which its members are given the "freedom" to reach only those political results that a small handful have predetermined to be "correct" is in reality no freedom at all. Indeed, prior to the fall of Communism in Europe, voters in Communist block nations always had the "freedom" to choose governmental policies, as long as they "chose" the policies already preordained by the nation's leaders. We knew at the time, however, that those states were anything but free. A truly free society must be able to choose a path which its existing government finds offensive.2 Thus, to suggest that there could ever exist as a "compelling interest" to suppress speech because of the fear that others might be convinced to adopt similar political views as a result ultimately undermines a society's commitment to the first principle of self-determination. It is for this reason I believe that Justice Kennedy was correct when, this past term, he asserted in his concurring opinion in Simon & Schuster, Inc. v. Members of the New York State Crime Victim Board, 112 S. Ct. 501 (1991), that a compelling interest analysis is wholly unsuited as a means of measuring the constitutionality of the regulation of viewpoint.

2We have, of course, removed certain value judgments from control by simple majorities by placing them in our super-majoritarian constitution. But even those values are ultimately subject to society's will, through the amendment process.

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