That seems to be the theory of this prosecution in Illinois:

A 16-year-old Crystal Lake girl facing a felony hate crime charge alleging she and a friend distributed anti-homosexual fliers at her high school must remain locked up until her case goes to trial, a McHenry County judge ruled Tuesday.

Citing concerns over the girl's home environment and her already lengthy juvenile record, Judge Michael Chmiel denied the girl's request for home detention.... The girl's record, Chmiel said, features 13 contacts with police, including an arrest for marijuana possession in August....

She and her 16-year-old friend each face charges of hate crime, disorderly conduct and resisting a peace officer stemming from their arrest May 11 outside Crystal Lake South High School. The charges allege the girls were distributing fliers showing two men kissing and containing inflammatory language toward homosexuals....

The fliers show two men kissing — one of them apparently "a male classmate[,] and neighbor of one of the girls[,] with whom they had been feuding" — coupled with the words "God hates fags."

The other girl was let out on house arrest (she's being electronically monitored, and can only go to "school, counseling, work or other activities approved by a probation officer." Her lawyer, Charles McKenney, is quoted as saying, "I believe [the prosecution] more attacks the speech, and at this point, they haven't shown what conduct was truly disorderly."

This strikes me as a very serious First Amendment problem. Hate crime laws that apply harsher punishment to people who commit assault, murder, or other crimes are generally constitutional (though I think they're generally misguided as a policy matter). Hate crime laws that apply harsher punishment to bias-motivated threats, face-to-face insults that are likely to provoke an immediate fight (so-called "fighting words"), and other unprotected speech, might be constitutional; compare Wisconsin v. Mitchell with R.A.V. v. City of St. Paul.

But here the speech does not fit within any existing exception. It's contemptible and offensive, but it is not sufficiently clearly threatening to fit within the exception for true threats, it's not a face-to-face insult likely to cause immediate violence, and it doesn't fit within any other existing exception to constitutional protection.

Calling it "harassment," "breach of the peace," "disorderly conduct," or "intentional infliction of emotional distress" is just labeling, and doesn't explain which First Amendment exception strips the words of protection. If anything, it highlights the vagueness of the legal theory under which the prosecution is operating, since these terms do not clearly define which speech will be punished by the law, and thus pose the three related problems of vague speech restrictions: lack of fair notice to speakers, risk of discriminatorily viewpoint-based enforcement, and tendency to deter speech. It's not just about "God Hates Fags"; if those words can be made a felony under one of these vague rationales, a wide (and unpredictable) range of other words could be punished as well.

So here it does seem like "hate crime" laws are being used as a speech code, and a speech code that makes the speaker into a criminal — in fact, given the nature of hate crimes enhancements, a felon — rather than justing lead to administrative punishment of high school students (which might be appropriate here, if the speech causes a disruption at school, though there's some uncertainty about whether that's covered by Tinker). Unless there are some facts here that are missing from the news coverage, this prosecution strikes me as a clear and serious constitutional violation. And it is evidence that fears that "hate crimes" laws will become "hate speech" bans are not implausible.

I should note that I don't know the law related to bail and to house arrest in juvenile cases. I therefore can't opine on the propriety of detaining one girl without bail and placing the other under house arrest pending trial, rather than letting both of them out on bail without house arrest, which I take it would be the norm for most adult crimes (except when there's a flight risk, a risk that the defendant will violently attack witnesses, or an extremely grave crime being charged).

Thanks to readers Fred Ray and Michael Lorton for the pointers.

I'm skeptical of hate crimes laws for various reasons, but I don't agree with the oft-heard argument that there's something unconstitutional or inherently wrong about enhancing punishments based on motivation.

Consider this comment: "I simply can not abide these 'hate crime' laws and am amazed that they have not been struck down. A murder is a murder; these laws criminalize speech, plain and simple." A murder is a murder -- yet the law has long distinguishes between different motivations for homicide.

Killing someone because you're enraged over his having attacked your family members (or even seduced your wife, a more controversial matter) is manslaughter. Killing someone because you just don't like them is often second-degree murder. Killing someone for financial gain may be more likely to be first-degree murder. Your motivation matters; and it will often be proved using your speech. Does it follow that these doctrines unconstitutionally "criminalize speech, plain and simple," or violate the principle that "[a] murder is a murder"?

Or consider treason law. Blowing up part of a defense contractor's plant in time of war is a serious crime. But it's treason only if it's done with the purpose of helping the enemy. If you blow up part of the plant because you're on strike and you're angry at the plant's management, it's still a felony, but it's not treason. Here the matter turns not just on motivation, but politically laden motivation (are you on our side, or the Communists' / Nazis' / jihadists'?). Still, motivation quite properly matters. We don't say "arson is arson; these laws criminalize speech, plain and simple" -- we distinguish between arson caused by anger or a desire for economic retaliation (bad though it is) and arson caused by a desire to help the enemy (worse).

The same is true with antidiscrimination law generally, though it's enforced through civil litigation: Motive is what turns perfectly permissible conduct into civilly actionable conduct. If a university is sued for expelling a student because of the student's conservative political speech, and its defense is that expelled the student for other reasons, the litigation will be all about motive. Likewise if an employer is sued on the grounds that if fired an employee because the employee was Catholic, black, white, female, or whatever else. The legal system does not say "firing is firing; these laws criminalize speech, plain and simple."

Now it may well be that a crime in which the victim was picked out because of his sexual orientation isn't materially different from a similar crime committed for most other reasons. It may well be that, even if there is a material moral and practical difference, drawing the line between the different motivations may be socially corrosive in various ways. It may well be that, even if there is such a difference, determining the speaker's motivations may too often require a focus on the speaker's political views, and might thus have too much of a deterrent effect even on lawabiding people. And it may well be that the laws are sometimes abused to actually punish constitutionally protected speech (rather than just using it as evidence of intent to commit a nonspeech crime).

As I said, I generally oppose hate crime enhancements, for a mix of these reasons. But "A murder is a murder; these laws criminalize speech, plain and simple" (and variants of this) is not, I think, a sound ground for opposition.