California, United States of America
The following excerpt is from People v. Superior Court (Aishman), 15 Cal.App.4th 1593, 19 Cal.Rptr.2d 444 (Cal. App. 1993):
The essential argument presupposes that motive is not and can not be an element of the crime, and thus it may not constitutionally be punished. This supposition is, however, incorrect. In Barclay v. Florida (1983) 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134, the defendant argued that his sentence should be set aside because the trial judge, in making his sentencing choice, discussed the defendant's racial motive for the murder.
The plurality opinion rejected this argument, holding (although not in a First Amendment context) that "[t]he United States Constitution does not prohibit a trial judge from taking into account the elements of racial hatred in this murder." (Barclay v. Florida, supra, 463 U.S. at p. 949, 103 S.Ct. at p. 3424.)
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