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JULY 1994

Article 20 - Prohibition of Propaganda Relating to 
War or Racial, National, or Religious Hatred

U.S. Reservation.  Because of the strength of the 
First Amendment's protection of freedom of speech, 
the United States conditioned its ratification of 
the Covenant on the following reservation:

     That Article 20 does not authorize or require 
legislation or other action by the United States 
that would restrict the right of free speech and 
association protected by the Constitution and laws 
of the United States.

Under the First Amendment, opinions and speech are 
protected categorically, without regard to content.  
Thus, the right to engage in propaganda of war is as 
protected as the right to advocate pacifism, and the 
advocacy of hatred as protected as the advocacy of 
fellowship.  The U.S. Supreme Court recently struck 
down a city ordinance that punished written or 
symbolic "fighting words" that insult or provoke 
violence on the basis of race, color, creed, 
religion or gender.  The Court found that the First 
Amendment does not permit prohibitions on speakers 
who express ideas on disfavored subjects.  "The 
government may not regulate use based on hostility -
- or favoritism -- towards the underlying message 
expressed."  R.A.V. v City of St. Paul, Minnesota, 
112 S.Ct. 2538 (1992).  Similarly, this Article 
would punish certain types of expression inciting 
discrimination, hostility or violence, but not 
others, a result that is not permissible under the 
U.S. Constitution.

There remain constitutional means by which the goals 
of this Article have been addressed in the United 
States.  As discussed in connection with Article 19, 
"fighting words" and speech intended and likely to 
cause imminent violence may be constitutionally 
restricted, so long as regulation is not undertaken 
with respect to the speech's content.  Moreover, 
bias-inspired conduct may be singled out for 
especially severe punishment.  Wisconsin v. 
Mitchell, 113 S.Ct. 2194 (1993).  While the federal 
and state governments are addressing the problem of 
hate crimes, and trying to address the underlying 
causes of such crime, they may not do so in a manner 
inconsistent with the First Amendment.  

Hate Crimes.  The Civil Rights Division of the U.S. 
Department of Justice enforces several criminal 
statutes which prohibit acts of violence or 
intimidation motivated by racial, ethnic, or 
religious hatred and directed against participation 
in certain activities.  The Department of Justice 
has recently prosecuted such cases involving 
interference with employment, housing, public 
accommodations, use of public facilities, and the 
free exercise of religion.  Three federal criminal 
statutes prohibit such forceful discriminatory 
activity:  18 U.S.C.   245 prohibits such 
interference with a number of protected activities; 
42 U.S.C.   3631 prohibits such interference with 
buying, selling, or occupying housing; and 18 U.S.C. 
  247 prohibits certain activities that interfere 
with the free exercise of religion.  In addition, 
conspiracies to interfere with protected rights may 
be prosecuted as violations of section 241. 

Section 245 prohibits acts of violence or 
intimidation based on race, color, religion, or 
national origin which interfere with certain 
protected activities.  These protected activities 
include enrolling in and attending public school or 
college, using any government-provided facility or 
benefit, engaging in public or private employment, 
serving as a juror, using any facilities of 
interstate commerce such as buses, airplanes, or 
boats, and enjoying certain establishments of public 
accommodation such as hotels and motels, 
restaurants, movie theaters, sports arenas, bars, 
night clubs, or other similar establishments.

Section 3631 of Title 42 prohibits acts of violence 
or intimidation in the area of housing.  The statute 
prohibits violence intended to intimidate people in 
their buying, selling, or occupying housing when 
that intimidation is motivated by a purpose to 
discriminate based on race, color, religion, sex, 
handicap, familial status, or national origin.

Section 247 prohibits the destruction of or 
significant damage to religious real property, and 
prohibits the forceful obstruction of any person in 
that person's enjoyment of his free exercise of 
religious beliefs.  The jurisdiction of section 247 
is limited to incidents where the defendant travels 
in interstate or foreign commerce or where 
facilities of interstate or foreign commerce are 

The Department of Justice has also begun 
implementing the Hate Crimes Statistics Act, which 
was enacted by Congress in April 1990.  This act 
provides for the collection of statistics on hate 
crimes nationwide, both from state and federal law 
enforcement sources.  The Department of Justice, 
through the Federal Bureau of Investigation, is 
working to obtain the cooperation of all state and 
local law enforcement agencies in collecting this 

Recent prosecutions under these hate crime statutes 
include the following: 

In United States v. Pierce, in Louisiana, 14 Ku Klux 
Klan members and associates pleaded guilty to 
participating in a series of cross burnings at 
predominantly African-American schools, homes, 
churches and in front of the Shreveport federal 
courthouse on the day that their Grand Dragon was to 
report to prison on a federal firearms violation.  
The defendants were sentenced to confinement ranging 
from a period of home detention to 72 months in 

In United States v. Lawrence, in Oklahoma, 17 
Oklahoma Skinhead Alliance associates pleaded guilty 
and were sentenced to as much as nine years 
imprisonment for their violent interference with the 
use by minorities of a public park and a live music 
club, in violation of 18 U.S.C.   245.

In United States v. Piche, in North Carolina, the 
defendant was convicted for the assault and death of 
an Asian man who was patronizing a bar, in violation 
of 18 U.S.C.   245.  The court sentenced the 
defendant to four years in prison and ordered him to 
pay $28,000 restitution.  An appellate court has 
since agreed with the government's position that 
this sentence is illegally low, and resentencing is 

In United States v. LeBaron, in Texas, several 
members of a religious sect were convicted under 18 
U.S.C.   247 for murdering several former members of 
the sect.  These defendants believed in and actively 
practiced the concept of "blood atonement," whereby 
defecting members were sentenced to death for their 
breach of faith.  They believed that these defecting 
members must be killed before the Kingdom of God can 
arrive.  After traveling interstate from Arizona to 
Texas, the defendants carefully planned the murders.  
The defendants ambushed three former sect members 
and one witness, the daughter of one of the victims, 
and killed them.  These defendants were sentenced to 
life imprisonment.

Hate crime perpetrators are not limited to members 
of organized groups.  Cross burnings, arsons and 
shootings involving the homes of African-American 
families have also been prosecuted in rural areas of 
Virginia and North Carolina against individuals who 
were not affiliated with any racist organization.  
In both cases, the newly purchased homes of African-
American families were set afire before they were 

Some states have attempted to deal with "hate 
crimes" by enhancing the punishment for acts of 
violence or intimidation when they were motivated by 
racial or religious hatred.  Recently, such a 
statute was challenged on the theory that it 
punished "thought."  The U.S. Supreme Court rejected 
this challenge, holding that it has always been 
acceptable to make motive a variable in the 
definition and punishment of crime, Wisconsin v. 
Mitchell, 113 S.Ct. 2194 (1993).
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