James Weinstein makes the case admirably for the ADL statute's consistency with the First Amendment.(1) He disposes rather summarily of Susan Gellman's argument that the ADL statute creates a thought crime.(2) He points out that the statute does not increase punishment because of the defendant's thoughts but because of the defendant's motives.(3) And increasing punishment because of motive is not unusual, unjustified, or unconstitutional.(4) Increasing the punishment for, say, assault because it is committed with a bigoted motive is no more problematic than decreasing the punishment for homicide because it is committed out of mercy. Having disposed of Gellman's arguments (and the similar ones of the Wisconsin Supreme Court), Weinstein delves more deeply into the issue. A bigoted motive may be used to enhance the punishment for a crime if it is relevant to interests that the state may legitimately consider in setting punishment.(5) What are those interests in the case of bigoted motives? Weinstein discusses five separate state interests,(6) but the most important ones boil down to tailoring the punishment to the gravity of the crime for either retributive or deterrent purposes. And why is an assault or other similar crime more serious when it is committed with a bigoted motive? One answer, the purely retributive one, is that it reflects a more flawed moral character than would the same crime committed for non-bigoted motives.(7) The other answer is that the crime causes more social harm when accompanied by a bigoted motive, either in terms of added insult to its victims or in terms of the in terrorem effect on others of the victims' race, sex, and so on.(8) But here matters become much dicier, and the first amendment, put to rest quite easily at the outset, begins to creep back into the picture. Weinstein sees the free speech issues. The pure retributive justification for enhanced punishment--that hate crimes reflect a more serious character defect than similar crimes committed from non-bigoted motives--would be viewed as supporting punishment for beliefs, which would make the justification quite problematic given the First Amendment.(9) Weinstein does not think that the retributive justification does amount to punishment for beliefs, but he is uncomfortable with it and turns quickly to the other justification, that of greater social harm.(10) I should say a word about why one might argue that the pure retributive justification is problematic. The retributive argument connects motives accompanying crimes with character traits, which are in turn assessed in terms of the (ill) desert those traits merit.(11) Is punishment for one's character (as reflected in one's acts) punishment for one's beliefs? Surely there is a case that it is. If a character trait consists of certain dispositions to act in particular ways, those dispositions can be translated into a set of beliefs about what is true and what is valuable. If one is punished an extra amount for acting with a bigoted motive, where the justification is the pure retributive one that the bigoted motive reflects a morally depraved bigoted character, then one is being punished the extra amount for being a bigot. And if one is being punished for being a bigot, one is being punished for believing what bigots believe. So Weinstein is right to feel uneasy about the pure retributive justification. The deep issue here is whether retributivism, with its focus on moral desert, can coexist with liberalism and the primacy it gives to autonomy, even if the crimes to which retributive punishments attach are themselves consistent with liberalism.(12) The First Amendment is an adjunct of liberalism. If liberalism coexists uneasily with retributivism, it would not be surprising to discover the doctrinal manifestation of this uneasy relation in the First Amendment. Weinstein places primary justificatory emphasis on the extra social harm caused by hate crimes: psychic injuries and harms due to threats of further violence. …