Hate Crime: First Amendment Issue?

Not too long ago I believed that the idea of a 'hate crime' was, on the whole, a bad one. I was mainly persuaded be the following argument:

According to the law, we determine the nature of a crime by what was actually done. When we classify an action as a hate crime, we are punishing the criminal for the very thoughts in his head, or the content of his speech. At the very least, this is a violation of First Amendment rights. At worst, we are legitimizing the Orwellian idea of 'thoughtcrime'.

Upon reflection, however, I realized that this argument misses the point of what I think is the most important reason that some crimes should be classified as hate crimes. When the law is applied to an act to determine its criminality, we already do consider the motivations and thoughts of the actor in the case. For example, if one person causes the death of another, we ask whether the act was purposeful, whether it arose from a moment of extreme provocation or planning, and so on. In other words, intent, what was going on in the actor's mind at the time, is essential for determining the criminal nature of the act.

One of the main reasons for this consideration is how much of a threat the criminal presents to the community. This is why, for example, we consider intentional, deliberate violent crimes to be worse than accidental violent crimes or crimes of passion. A person who kills someone out of anger upon catching him cheating with a romantic partner, for example, is considered far less dangerous to a community than one who plans and then executes a shooting spree in a public place. A person who kills someone after planning the crime ahead of time also presents a larger danger to a community than the 'heat of the moment' killer, since he reveals himself to be capable of killing at least one person even after sustained reflection. While the danger is still mainly confined to a single target, the killer is still a potential threat to the wider community in this sort of case since he might become homicidally angry at someone else.

A person who commits a hate crime also presents a wider danger to the community because her intention to harm dos not have a single target. The target of her hate or anger is an entire class of people, as the evidence of her own expressed intent and beliefs reveal. The harm that she does, or intends to do is likely to be far more widespread.

The way the law determines whether or not a crime is a hate crime is nearly identical to the way it determines whether a homicide is first degree murder, second degree murder, or manslaughter. I think this sort of distinction is necessary and appropriate. Hence, I think that the separate classification of hate crime is appropriate as well.


We just need to be careful, as a society, that we don't become overzealous in applying the term to thoughts and speech alone, or to morally repulsive but relatively harmless actions.


Amy Cools
Sacramento State Philosophy Alumna