The author begins by reviewing the responses of various State legislatures to the incidence of "hate crime." He then examines three lines of cases relevant to deciding the constitutionality of penalty-enhancement statutes for hate crime. His argument posits that the U.S. Supreme Court answered a crucial threshold question incorrectly and therefore ignored relevant precedent in reaching its decision. Specifically, the author questions the Court's threshold conclusion that Wisconsin's penalty-enhancement statute merely regulates nonexpressive conduct by arguing that the statute impermissibly regulates speech, or, in the alternative, that the statute impermissibly regulates expressive conduct. The author concludes that the Court erred in ignoring these two arguments against sentence enhancement by focusing instead on cases addressing the admissibility of a defendant's words and expressive conduct during standard sentencing procedures. 292 notes