Hate Speech
a)    analysis:
i)    usually content based
ii)    gvmt can ban all hate speech, but usually they describe what is hate speech (you can’t burn a cross) and that is content based and usually fails strict scrutiny
iii)    gvmt may ban all fighting words, but not those motivated by racial bias (that would be content based)
iv)    penalty enhancing statutes:  allowed b/c this are already crimes & they may be punished more severely for racial animus b/c its like scienter
b)    content based or content neutral?
i)    If it’s a time, place & manner restriction, then probably content neutral, but usually these statues are content based.
ii)    Content based:
(1)    Compelling gov’t interest
(2)    Narrowly tailored.
c)    penalty enhancing statues:  Wis. v. Mitchell 9-0
i)    okay b/c we are punishing criminal conduct, not speech & not for abstract beliefs
ii)    but gov’t may not introduce evidence of affiliation w/ hate group (KKK) in a criminal trial b/c unrelated to crime & violates freedom of ass’n  (Dawson v. Delaware)
iii)    still must have a direct causal connection between the motivation (beliefs) and the crime