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Abstract: In this paper I will challenge the argument that hate crime legislation such as the ADL model statute is facially inconsistent with the First Amendment. I want to emphasize at the outset, however, that my disagreement extends only to the charge that such statutes are invalid on their face-in other words, that regardless of the circumstances in which they are applied, a statute that enhances the punishment for racially motivated crimes violates the First Amendment. The bulk of this paper, however, will be devoted to answering the charge that enhancing punishment for racially motivated crimes violates the First Amendment, regardless of the type of crime at issue and irrespective of the circumstances under which the crime was committed. Specifically, I will show that the argument that a statute enhancing the punishment for racially motivated crimes is at its core a violation of the First Amendment is wrong both as a matter of doctrine and as sound free speech policy. In addition, I will show that the argument employed by Gellman and the Wisconsin court to attack the constitutionality of hate crime legislation undermines the validity of all antidiscrimination laws.
Hate crime, First Amendment, discrimination
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