a. No. In an opinion written by Rehnquist, The Court unanimously held
that this penalty-enhancement scheme did not violate D’s First Amendment rights, and thus upheld the statute. D argued that since the only reason for the enhanced sentence was his discriminatory motive for selecting his victim, the statute punished his beliefs.
Therefore, he argued, the penalty-enhancement statute was no more
constitutionally acceptable than the ban on certain “fighting words”
struck down in R.A.V. But the Court rejected this argument. In doing
so, the Court relied heavily on the old distinction between speech
and conduct. The ordinance struck down in R.A.V. was explicitly
directed at expression, whereas the penalty-enhancement statute here
was aimed at conduct, and this conduct was completely unprotected by the First Amendment. (That is, there is no constitutional protection for the act of battery, whatever the actor’s motive.)
b. The Court also observed that many other statutes punish a
defendant based on his motive for acting. For instance, federal Title
VII makes it unlawful for an employer to discriminate against an
employee “because of such individual’s race, color, religion, sex,
… ”, yet that statute has always been found to conform with the First Amendment because the federal statute focuses on conduct, not speech.
1. But isn’t intentionally picking out someone to beat up based upon
their race the same as intentionally choosing someone to fire based
upon their race (as Title VII requires)? This part of the holding is
not at all persuasive.
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