Legendary Justice Oliver Wendell Holmes wrote: “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 we hate.”

It is the duty of the Supreme Court to uphold this right to free thought for all Americans, not just those who are in the majority or the “social mainstream.” However, recent hate crime legislation – such as the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act – have signified a direct threat to this freedom.

Hate crimes are defined by the HCPA as “the incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability of the victim.” Recent data indicates crimes of this nature have been on the rise, with more than 6,500 incidents reported in 2009. What’s more, the Bureau of Justice Statistics estimated the true number of incidents could be as much as 31 times that figure.

This data, in addition to the frightening murders of Matthew Shepard and James Byrd Jr. in 1998, catalyzed a social crusade which forced the collective hands of legislators to produce a tough and inclusive national hate crime statute. Almost immediately, however, issues were raised by detractors who claimed the HCPA statute violated the U.S. Constitution’s First Amendment “freedom of speech” provisions.

When considering the constitutional arguments against hate crime legislation in relation to the First Amendment, it is critical to understand that penalty-enhancement provisions contained in the HCPA expressly and separately criminalize the offender’s motive during the commission of a crime.

While purpose, knowledge, negligence and recklessness are categorical mental states recognized by the Moral Penal Code in establishing an offender’s responsibility for wrongdoing, motive is not listed because throughout American case law, it has been largely rendered irrelevant in relation to sentence-enhancement guidelines.

To illustrate this point, imagine a man convicted of murder. The jury should and will take into consideration whether the man premeditated the murder (purpose) or whether it was simply an accident (negligence or recklessness) in applying penalty standards. Motive may in fact be used to prove guilt or association, but in regards to sentence-enhancement, it usually should not matter whether the offense was committed out of greed, racial agenda or any other intention.

Logistically, the only way to prove an offender intentionally selected their victim by gender, race or any other factor is to allow for the criminalization of motive. Yet, the criminalization of motive directly infringes upon the First Amendment in these cases because no matter how these statutes are phrased, they are necessarily content-based.

To understand the implications of content-based hate crime statutes on free speech, imagine that you’re a jury member looking for evidence of bigoted motive. What could be legally admissible for your analysis? Could you take into account the organizations to which a defendant belongs, or the lectures they’ve attended? What about the contents of their bookshelves, or their Internet search history? Indeed, it is hard to imagine jurors becoming convinced of a defendant’s prejudiced motive “beyond a reasonable doubt” without taking into consideration such protected free speech elements which are not specifically related to the hate crime offense.

Further, given the finding and subsequent application of motive is so complex and occupies a “gray area” in the law, it seems inappropriate to expect a group of ordinary and imperfect humans to realistically or accurately make these determinations of a defendant’s true motive.

In theory, the concept that social prejudices inherently necessitate legislative action fundamentally depends on the premise that prejudice is more morally reprehensible than all other criminal motives. Is this accurate? Though it might be true to say that racial bias is appalling and inappropriate, it cannot be definitively said that this bias is any more reprehensible that greed, spite or pure sadism.

Therefore, it may be argued that while hate crime laws are well-intentioned and seek to create a more tolerant society on paper, in practice they ultimately fail to overcome significant constitutional hurdles and set dangerous precedents for the future of civil liberties in this nation.

We must air on the side of caution here; it is imperative that government choose the course that ensures maximum – not minimum – protection of speech, thought and belief.

By infringing on freedom of speech, hate crime penalty enhancements consequently encroach on the most personal and essential right guaranteed by the Constitution – the freedom of thought.

Henry Downes is a sophomore majoring in economics. His column runs on Tuesdays.