Hate Crime

Fundamentals of Criminal Law by Adam J. McKee

Hate crime statutes are laws that specifically address acts of violence or intimidation based on particular characteristics of the victim. The foundation of these laws revolves around penalizing conduct directed at specific classifications of individuals. Let’s delve deeper into the constitutional implications of these statutes.

Classifications Covered by Hate Crimes Statutes

Hate crimes laws have been developed to address acts of prejudice and violence targeted at individuals based on specific classifications. Understanding these classifications provides a deeper insight into the scope of protections provided by such laws.


Hate crimes based on race target individuals primarily due to their skin color, ancestry, or certain physical characteristics typically associated with specific racial groups. Throughout history, racial prejudice has led to numerous atrocities, and this classification serves to recognize the heinous nature of crimes that stem from such biases. Laws against racially-motivated hate crimes aim to deter discrimination and violence rooted in these prejudices and foster a more inclusive society.


Ethnicity-based hate crimes focus on individuals’ cultural identity, encompassing factors like language, nationality, or cultural traditions. These crimes can arise from long-standing feuds between different ethnic groups or from misperceptions and stereotypes associated with certain ethnicities. By classifying such offenses under hate crimes laws, legislators hope to combat prejudice that targets cultural diversity and heritage.


Gender-based hate crimes occur when individuals are targeted due to their biological sex, gender identity, or gender expression. These can range from acts of violence against women because of their gender to attacks on individuals who identify as transgender or non-binary. Protecting individuals based on gender classification seeks to create an environment where one’s gender or gender identity does not place them at risk of violence or discrimination.

Sexual Orientation

Crimes targeting individuals based on their sexual orientation, whether they identify as gay, lesbian, bisexual, or any other orientation, fall under this category. Historically, many societies have marginalized LGBTQ+ communities, leading to various forms of discrimination, violence, and prejudice. Laws that address hate crimes against these communities aim to ensure that individuals can live authentically without fear of targeted violence due to their sexual orientation.


Religious-based hate crimes are committed against individuals or groups because of their religious beliefs, practices, or affiliations. Such crimes can manifest as physical violence, desecration of holy places, or discrimination. Given the fundamental human right to freedom of religion, it’s paramount that individuals feel safe to practice their faith without facing targeted harm. Laws against religious hate crimes serve not only to protect religious groups but also to uphold the foundational principle of religious freedom.

In conclusion, the specificity in hate crime laws, with clear classifications, ensures a focused approach to addressing and prosecuting crimes stemming from prejudice. By recognizing the unique nature of these crimes, society signals its commitment to protect its most vulnerable members and foster an atmosphere of acceptance and unity.

Interplay with the First Amendment

When discussing hate crimes statutes, particularly those that touch upon speech or expressive conduct, it’s essential to address the First Amendment implications:

1. Criminalizing Speech and Expressive Conduct

Hate crimes laws that criminalize certain forms of speech or expressive conduct can be constitutional under specific circumstances. The “clear and present danger” exception to First Amendment protections allows for this. To be constitutional:

  • The speech or conduct must have the intent to intimidate.
  • It can include threats of imminent bodily injury, death, or actions like cross burning.

However, any statute addressing these matters must be narrowly crafted. It should not be vague or overbroad to ensure it doesn’t infringe upon protected speech.

2. The Issue with Content-Based Restrictions

Statutes that criminalize speech based on its content, such as expressing prejudiced views towards a race, ethnicity, gender, sexual orientation, or religion, typically face First Amendment challenges. Such laws:

  • Are generally deemed unconstitutional.
  • Can have a “chilling effect” on free expression, deterring individuals from expressing even unpopular opinions.

Even if content-based speech might incite anger or lead to violence, the First Amendment shields it from government regulation, unless there’s a compelling governmental interest subjected to strict scrutiny.

Strict Scrutiny in the Context of Hate Crimes

One of the most rigorous standards of judicial review, strict scrutiny is applied when a law potentially infringes upon a fundamental constitutional right. This heightened level of review ensures that the government isn’t overstepping its boundaries and unduly limiting citizens’ rights. In the context of hate crimes and their intersection with freedom of speech and other protected rights, the application of strict scrutiny becomes paramount.

When a statute regulates speech based on its content, especially in sensitive areas like race, religion, or sexual orientation, it raises significant First Amendment concerns. The First Amendment, which guarantees the freedom of speech, is a foundational pillar of American democracy. Laws that seem to infringe upon this right, even with noble intentions like preventing hate crimes, must undergo rigorous judicial examination to ensure they don’t unduly limit this essential freedom.

Under strict scrutiny, the government bears the burden of proof. It must demonstrate two critical elements:

  1. Compelling Governmental Interest: The law or action must further a compelling governmental interest. In the context of hate crimes, this could mean the preservation of public order or the protection of vulnerable groups from targeted violence.
  2. Narrow Tailoring: Even if there’s a compelling interest, the statute must be narrowly tailored to achieve that interest. This means that the law should be the least restrictive means to achieve the said interest. For hate crime statutes that touch upon speech, this might mean they can only criminalize speech that poses a clear and present danger, rather than a broad range of expressive activities.

Given the delicate balance between protecting vulnerable populations from hate crimes and preserving essential freedoms like speech, strict scrutiny ensures that laws strike the right balance. It serves as a guardrail, ensuring that while society aims to curb hateful actions and protect targeted groups, it doesn’t do so at the undue expense of fundamental constitutional rights.

In summary, strict scrutiny acts as a crucial filter, ensuring that as we navigate the complexities of hate crime laws and their potential impact on freedoms like speech, the scales of justice are weighted appropriately.

Case Study: Virginia v. Black (2003)

In the case of Virginia v. Black, the Supreme Court of the United States (SCOTUS) examined a Virginia statute that deemed cross burning as prima facie evidence of an intent to intimidate. Cross burning, historically associated with the Ku Klux Klan, has been used as an act of intimidation against African Americans and other groups. The statute essentially said that if someone burns a cross, the act itself is direct evidence that they intended to intimidate someone.

Facts of the Case:
The case combined three convictions under the same Virginia law:

  1. Richard Elliott and Jonathan O’Mara, who attempted to burn a cross on a neighbor’s lawn.
  2. Barry Black, who led a Ku Klux Klan rally where a cross was burned.

All were charged based on the act of cross burning itself, under the assumption that such an act inherently carried an intent to intimidate.

Legal Issue:
The central issue was whether the Virginia statute, by considering cross burning as prima facie evidence of an intent to intimidate, infringed upon the First Amendment’s protection of free speech.

The Court’s Ruling:
In a 7-2 decision, the Supreme Court held that while cross-burning can, in certain contexts, be seen as an expression of intimidation, it’s unconstitutional to consider it as inherently expressive of that intent. Justice O’Connor, writing for the majority, stated that the act of cross-burning has a long history as a symbol of white supremacy. However, the First Amendment does not permit the state to ban such expression just because of its historical association with intimidation.

The Court recognized that cross-burning, like other forms of expression, can convey various messages. While it often represents racial hatred and intimidation, it could also signify a group’s solidarity and shared beliefs. Thus, deeming every act of cross-burning as an intent to intimidate was overly broad and infringed on protected speech.

Relation to Strict Scrutiny and Hate Crime Statutes:
The Virginia v. Black case provides insight into how the courts balance the First Amendment rights with states’ interests in criminalizing intimidating or threatening behavior. Although the state has a compelling interest in preventing intimidation and protecting targeted groups (a core purpose of hate crime statutes), the laws must be narrowly tailored to respect constitutionally protected rights.

In this instance, the court deemed Virginia’s statute as not narrowly tailored enough since it didn’t differentiate between cross-burnings intended to intimidate and those meant to convey other messages.

Virginia v. Black serves as a pivotal case in understanding the balance between the government’s role in curbing hate crimes and upholding the First Amendment freedoms. It highlights the need for hate crime statutes to be precisely crafted to withstand the rigors of constitutional scrutiny.


Hate crime statutes provide essential legal tools for addressing targeted violence and intimidation. However, when these laws touch upon the realm of speech or expressive conduct, they must be carefully crafted to respect First Amendment protections. It’s a delicate balance between ensuring the safety of vulnerable groups and preserving the essence of free speech.


References and Further Reading


Wisconsin v. Mitchell, 508 U.S. 47 (1993).

R.A.V. v. St. Paul, 505 U.S. 377 (1992)


Modification History

File Created:  07/17/2018

Last Modified:  10/11/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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