“Brother, you can't go to jail for what you're thinking”: Motives, effects, and “hate crime” laws

Justice Holmes once wrote: [I]f 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.(1) That is the crux of the First Amendment challenge to the ADL model hate statute and its progeny. Professors Murphy and Weinstein focus so tightly on semantic and philosophical distinctions that they seem to have lost sight of the basic First Amendment problem: the ADL model statute addresses a serious problem in a way that infringes not only upon speech, but upon freedom of thought. As other approaches exist that would not create that infringement, one must question government's interest in insisting upon an approach that does so infringe. Professor Murphy's purpose is to show that the cliche |motives are to criminal liability' is not as clear as he believes I think.(2) I would not call motives irrelevant to criminal liability.(3) Motive may be demonstrated at trial in order to prove other elements of an offense, such as identity or intent. The point is simply that even though motive can be relevant to guilt of an offense, it does not follow that it may therefore be an element of an offense. A defendant's cry, There is no room in America for traitors! prior to committing a murder may be introduced as evidence that the defendant was the killer, or that the was intentional. This does not mean that the sentiments expressed in the statement may themselves be made a punishable element of the offense. In any case, Professor Murphy makes too much of this entire argument. Even if motive could be made an element of an offense, it could not be done in a way that draws distinctions based on the viewpoint held and expressed. Those distinctions are inconsistent with the First Amendment. Whether or not motive is ever punishable, the punishment for motive imposed by laws based on the ADL model is unconstitutional. Professor Murphy fears evil results from refusal to allow criminalization of motive. He points to our desire to see killing cases treated differently from cold-blooded murder, and asks why we don't simply admit that we want the law to look at motives. Here he is making too quick an assumption that it is in fact motive that separates a mercy from a regular murder. After all, someone might kill homeless people, severely retarded or disabled people, or even people who have just received absolution, sincerely believing it to be a mercy killing. You and I may disagree with the killer that it is in fact merciful, but if the killer thinks so, then the motive is identical to Dr. Barber's.(4) Perhaps the result in Barber's case could be more sensibly justified by a finding of implied consent (with appropriate adjustments in the murder statute, as some jurisdictions have done). Suppose we knew that Barber's victim had, before lapsing into the coma, stated firmly and repeatedly that he did not, under any circumstances, including coma, wish to be removed from life support systems. We might feel different about the character of Barber's act (that is, exactly what he did), even though his motive (that is, why he did it) was still mercy killing. In defending hate statutes, Professor Murphy has inadvertently stated one of the strongest objections to them. He sums up the difference between bias-related crime and other crime as follows: What is different is that in the one case, but not in the other, a degrading and humiliating message is being sent and received .. .(5) Exactly. The difference is that a message is being sent and received. As that sending and receiving of a message is the only thing for which additional punishment is imposed, the First Amendment violation is obvious. Even this conclusion depends upon seeing these laws in their best possible light; that is, assuming that a humiliating message has been sent and received. …