Wisconsin v. Mitchell

With this decision, a line was drawn between First Amendment protected speech and criminal activity that had as its motive hate based on race, religion, or related biases. The Court did not broadly condone restrictions to expression, but did indicate that hate crimes can be considered more dangerous to society than crimes with other motives, and therefore could be punished more severely.

Todd Mitchell was one of a group of young black men who had been watching the movie Mississippi Burning in a Kenosha, Wisconsin apartment on 7 October 1989. The movie contains scenes of white men beating a black boy, and other racially-motivated violence against blacks. After viewing the movie, the men went outside onto the street. Mitchell made some remarks about wanting "to move on some white people," and when a white boy passed on the other side of the street, Mitchell said, "There goes a white boy; go get him." The group, including Mitchell, beat the boy severely, and stole his running shoes; the boy was in a coma for four days, but survived the attack.

In 1990, the Wisconsin legislature had passed a statute that allowed for enhanced penalties in cases in which the person being sentenced "[i]ntentionally selects the person against whom the crime . . . is committed or selects the property which is damaged or otherwise affected by the crime . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person . . . " The circuit court which convicted Mitchell of aggravated battery cited this statute to enhance his sentence, from two to four years in prison. The statute was found to be unconstitutional by the Wisconsin Supreme Court, after the court of appeals rejected Mitchell's challenge; the case was then petitioned to the U.S. Supreme Court.

The arguments that Mitchell advanced, and which had been accepted by the state supreme court, were that the statute violated the First Amendment by punishing "offensive thought," and that the statute was unconstitutional because it was too broad and would have a "chilling effect" on individuals' speech. Mitchell asserted that the statute allowed the courts to punish the motive for selecting the victim, and "that the statute violates the First Amendment by punishing offenders' bigoted beliefs."

Mitchell's case was based on the tradition of the Court protecting speech, even speech which could be considered offensive or objectionable. In R.A.V. v. City of St. Paul (1992), for example, three young white men were charged with violating an ordinance which banned the use of symbols which "arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender." The men had burned a cross on the property of a black family, recalling the activities of the Ku Klux Klan. The Court rejected the ordinance as unconstitutional, as it limited speech according to content, and because it allowed restrictions "based on hostility-or favoritism-toward the underlying message expressed." This precedent of protecting hate speech was the basis of Mitchell's arguments.

However, the U.S. Supreme Court rejected these arguments, citing United States v. O'Brien (1968): "Our cases reject the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to `express an idea;'" and National Association for the Advancement of Colored People v. Claiborne Hardware Co. (1982): "The First Amendment does not protect violence." In accord with these cases, Justice Rehnquist wrote, "A physical assault is not, by any stretch of the imagination, expressive conduct protected by the First Amendment." The Court also found that the statute did not violate the Constitution, as it was suitably narrow; no credence was given to the idea that the statute would have a chilling effect on speech, as the legislation would only effect the sentencing phase of criminal proceedings.

The Court also had precedents which allowed the consideration of motive in criminal sentencing. In Barclay v. Florida (1983), for example, the Court had "allowed the sentencing judge to take into account the defendant's racial animus towards his victim"--the defendant was a member of the Black Liberation Army, and was attempting to provoke a "race war." And the Court recognized Wisconsin's reasoning for passing the statute: it "singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm," and is "more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest." While the Court made no move to impede what could be considered "hate speech," it acknowledged that some crimes, when motivated by hatred, were subject to more severe punishments.