Hate Crime, Hate Speech and the First Amendment

Concerned Women for America(TM) has an article in opposition to hate crime legislation on their site. It begins with:

“Proponents of "hate crime" laws say they are needed to protect minorities from acts of violence. But "hate crime" laws are unnecessary. Criminal acts are already illegal. What's more, "hate crime" laws violate the constitutional right to equal protection, create the un-American offense of "thought crime," and abridge the freedoms of speech, religion and association.

"Hate crime" laws work this way: They add penalties to a criminal sentence if the criminal is also convicted of having a "hateful" intent toward the victim based on the victim's real or perceived group identity. Crime victims who don't fit into certain categories see their assailants face lesser penalties. Ultimately, "hate crime" laws punish only beliefs or thoughts.(1)”

This is patently absurd.

The single sentence that most raises my suspicion is this:

"Crime victims who don't fit into certain categories see their assailants face lesser penalties".

That is as it should be, because in the United States we have long accepted that the punishment should not fit the crime but rather the punishment should fit the criminal. A criminal who is motivated by hate and takes action against an individual because of that individual's membership in a group is a more dangerous criminal. That criminal deserves greater punishment not so much because his/her actions are more objectionable, but because society deserves greater protection from those who would be more likely to re-offend because of their animus towards a particular group.

But.

I am sympathetic to the concern that a poorly constructed bill could cross the line into creating a thought crime. Fortunately, our system, pursued with due diligence, is self-correcting.

We all agree that some kinds of speech do not deserve the protection of the First Amendment. There are (depending on how one enumerates them) six or seven exceptions. Of these five are beyond dispute, and the last two, while still controversial in the minority of mainstream thought, are well accepted in law

These exceptions are:

Fraud
Libel
Slander
Clear and Present Danger
Fighting Words
Obscenity
Child Pornography

Where does hate speech fit?

HATE SPEECH IS PROTECTED SPEECH!

We who despise hate speech must afford our opponents the right to hate and the right to articulate that hate. Oliver Wendell Holmes says it better that I could:

"If there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the principle of free
thought, not free thought for those who agree with us but freedom for the
thought that we hate."

In conclusion, any speech, no matter how hateful, no matter how hurtful, must be protected. Only speech that crosses one the five lines of fraud, libel, slander, clear and present danger or fighting words may be proscribed.
But, hate crime legislation that properly accesses a greater penalty for an illegal act is a proper use of the criminal justice system.

(1) http://www.cwfa.org/articledisplay.asp?id=9672&department=CFI&categoryid=papers