Free Speech Challenges: R.A.V. and Mitchell

In 1992 and 1993, the United States Supreme Court decided two cases addressing the constitutionality of statutes directed at bias-motivated intimidation and violence: R.A.V. v. City of St. Paul⁴ and Wisconsin v. Mitchell.⁵

4 505 U.S. 377 (1992). 5 508 U.S. 476 (1993).

These well-known cases have now substantially defined which hate crimes statutes are, and which are not, acceptable under the First Amendment to the United States Constitution. Based on these cases, ADL has been strongly urging states to adopt penalty-enhancement statutes based on the League's model.

In R.A.V. v. City of St. Paul, the Supreme Court evaluated for the first time a free speech challenge to a hate crime statute. In that case, the defendant had burned a cross "inside the fenced yard of a black family that lived across the street from the house where the [defendant] was staying." The ordinance before the Court, as interpreted by the Minnesota Supreme Court, criminalized so-called "fighting words" which "one knows or has reasonable grounds to know arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Fighting words are words which will provoke the person to whom they are directed to violence; more than 50 years ago, in Chaplinsky v. New Hampshire,⁶

6 315 U.S. 568 (1942). In Chaplinsky, the defendant had been convicted of issuing an insult after calling a city marshall a "racketeer" and a "damned fascist." The doctrine of "fighting words," elaborated in this one case, has not played a significant role in recent free speech jurisprudence. Use of the doctrine in R.A.V. gave every appearance of a last-ditch effort to salvage a problematic ordinance.

the Supreme Court decided that such words were not protected by the First Amendment. Therefore, in R.A.V., the state of Minnesota argued that because all so-called "fighting words" are outside first amendment protection, race-based fighting words could be criminalized.

The Supreme Court disagreed and struck down the statute. The Court held that because Minnesota had not in fact criminalized all fighting words, the statute isolated certain words based on their content or viewpoint and therefore violated the First Amendment. Based on R.A.V., hate crime statutes which criminalize bias-motivated speech or symbolic speech are unlikely to survive constitutional scrutiny. Particularly, cross burning statutes or statutes criminalizing verbal intimidation are more suspect after this decision.

However, in Wisconsin v. Mitchell, the Supreme Court unanimously upheld a Wisconsin statute which provides for an enhanced sentence where the defendant "intentionally selects the person against whom the crime [is committed] because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person." The defendant in Mitchell had incited a group of young Black men who had just finished watching the movie "Mississippi Burning" to assault a young white man by asking, "Do you all feel hyped up to move on some white people," and by calling out, "You all want to fuck somebody up? There goes a white boy; go get him."

Noting that "[t]raditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant," the Court rejected the defendant's contention that the enhancement statute penalized thought. First, the Court affirmed that the statute was directed at a defendant's conduct -- committing a crime. The Court then held that, because the bias motivation would have to be connected with a specific act, there was little risk that the statute would chill protected bigoted speech. The statute focused not on the defendant's bigoted ideas, but rather on his actions based upon those ideas. Finally, the Court made clear that "the First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent." After Mitchell, challenges to penalty-enhancement statutes on the basis of the First Amendment to the United States Constitution appear to be largely foreclosed.

State constitutions may, however, provide greater protection for speech than does the United States Constitution. Thus, notwithstanding Mitchell, states are free to decide that penalty-enhancement statutes violate their own state constitutional provisions on free speech. However, no state has done so and four state supreme courts have denied such a claim. The highest court in Oregon has rejected the claim that the Oregon Constitution prohibits penalty enhancement,⁷ and the Supreme Court of Washington upheld the constitutionality of the Washington statute.⁸ The Wisconsin Supreme Court rejected a motion by Mitchell, after the

7 See Plowman, 838 P.2d at 562-64; State v. Beebe, 680 P.2d 11, 13 (Or. App. 1984), rev. den., 683 P.2d 1372 (Or. 1984). 8 State v. Talley, 122 Wash.2d 192 (1993). 9 504 N.W.2d 610 (1993). 10 624 N.E.2d 722 (1994). 11 U.S. Const. amend. V ("No person shall . . . be deprived of life, liberty, or property, without due process of law"); U.S. Const. amend. XIV, §1 ("nor shall any State deprive any person of life, liberty, or property, without due process of law").

Supreme Court's decision, to assert Wisconsin state constitutional grounds.⁹ The Ohio Supreme Court upheld the constitutionality of the Ohio statute, after State v. Wyant¹⁰ was remanded by the United States Supreme Court.

Other Constitutional Challenges

Several litigants have claimed that penalty enhancement or bias-motivated crimes statutes violate the due process clause of the United States Constitution¹¹ because the statutes are unconstitutionally vague. The due process clause requires that a criminal statute give clear notice of what activity is proscribed and provide adequate guidelines to prevent arbitrary law enforcement actions. Primarily, these state cases have focused on the "by reason of" or "because of" language which triggers the bias motivation element of the crimes. Defendants argue that these clauses do not make clear when bigoted behavior will be punished. Because the statutes require the commission of an underlying crime, however, the state courts largely have rejected these claims.

Finally, several litigants have argued that state penalty enhancement or bias-motivated crimes statutes violate the equal protection clause of the United States Constitution. These parties have suggested either that the statutes unconstitutionally benefit minorities, because minorities are more likely to be victims of bias crimes, or that the statutes unconstitutionally burden majority members because majority members are more likely to be prosecuted. In each case, the state court has rejected the argument, noting that the statute is neutral on its face and that the state has a legitimate interest in punishing hate crimes more severely. As previously noted, the defendant in Mitchell was Black and his victim was white.

Next: Other Means