x x x x x x x

x x x x x x x

Should Hate be Outlawed

These are a few examples of “hate crimes.” Organizations like the Anti-Defamation League and the Southern Poverty Law Center report that hate-motivated vandalism, cross burnings, bombings, beatings, and murders have been increasing at an alarming rate in the United States.

Even more disturbing is that people under 21 commit half of all hate crimes in this country. Between May 1990 and May 1992, over 200 serious hate-crime incidents occurred in the nation’s high schools alone. Although few youths who commit these crimes belong to hate organizations, some are attracted to neo-Nazi skinhead gangs. These groups believe that a race war against the Jews and “mud races” is the “only ultimate solution.”

Several educational programs, such as the Anti-Defamation League’s “A World of Difference,” are attempting to reduce prejudice and hate in the schools. At the same time, lawmakers have been crafting statutes making certain kinds of hateful acts, like Ku Klux Klan-style cross burnings, illegal. Other statutes have increased penalties for crimes motivated by racial and others forms of prejudice. But should hate be outlawed? Some people argue that even bigotry is protected by the First Amendment’s guarantee of free speech.

Over the past decade, some states and cities have prohibited certain acts as hate crimes. For example, in 1989, St. Paul, Minnesota, passed the following city ordinance:

Whoever places on public or private property a symbol, object, appellation [name], characterization or graffiti including . . . a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender, commits disorderly conduct and shall be guilty of a misdemeanor.

About a year after St. Paul’s hate-crime law was enacted, police arrested a group of white juveniles for a series of cross burnings. In one instance, the youths taped chair legs together into a crude cross and set it ablaze inside the fenced yard of a black family.

In an appeal that reached the U.S. Supreme Court, attorneys for the juvenile defendants argued that the St. Paul law violated the free-speech provision of the First Amendment. The city responded that by prohibiting such acts as cross burnings, the ordinance served “a compelling governmental interest” to protect the community against hate-motivated threats.

In June 1992, a unanimous Supreme Court agreed with the juvenile defendants. Writing the opinion for the court, Justice Antonin Scalia stated that while government may outlaw activities that present a danger to the community, it may not outlaw them simply because they express ideas that most people or the government find despicable.

Scalia also pointed out that other laws existed to control and punish such acts as cross burnings. In this case, the city could have prosecuted the juvenile offenders under laws against trespassing, arson, vandalism, and terrorism. “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible,” Scalia wrote. “But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.” (R.A.V. v. City of St. Paul.)

St. Paul’s statute is only one type of hate-crime statute. Instead of creating special hate crimes, these other statutes add extra penalties for any crime committed out of hate. This is the approach taken by the Hate Crimes Sentencing Enhancement Act sponsored by Representative Charles E. Schumer (D-N.Y.). Schumer’s bill would lengthen prison terms by a third for federal crimes involving attacks motivated by hate. The House of Representatives passed this bill in September 1993, and the Senate is now considering it.

Penalty-enhancement laws like the Schumer bill already exist in more than a dozen states. Wisconsin’s statute enhances the maximum penalty for an offense whenever a criminal “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. . . .”

On October 7, 1989, Todd Mitchell, 19, and a group of other young black men were standing outside an apartment building in Kenosha, Wisconsin. They were discussing the movie, “Mississippi Burning,” which concerns Ku Klux Klan terrorism against blacks in the South during the 1960s. As they were talking, a 14-year-old white boy, Gregory Reddick, happened to be walking on the other side of the street. Mitchell asked his friends, “Do you feel hyped up to move on some white people?” He then pointed to Reddick and said, “There goes a white boy. Go get him!” About 10 members of the group, but not Mitchell himself, ran across the street, beat up Reddick, and stole his tennis shoes. Severely beaten, Reddick remained in a coma for four days and suffered permanent brain damage.

As the instigator of the attack, Mitchell was tried and convicted of aggravated battery, which normally carries a penalty of two years in prison. But the jury found that Mitchell had selected his victim because of his race. Consequently, the judge applied Wisconsin’s hate-crime enhancement law and added two more years to Mitchell’s sentence.

Mitchell appealed his sentence, claiming that the state’s enhancement act violated the First Amendment. Wisconsin’s state Supreme Court agreed with Mitchell. This court found that the sentencing-enhancement law, in effect, punished Mitchell for his thoughts. Relying heavily on the U.S. Supreme Court’s ruling in R.A.V. v. City of St. Paul, the Wisconsin court concluded that even “bigoted thought” is protected by freedom of speech.

The state of Wisconsin appealed the case to the U.S. Supreme Court. Below are some of the major points raised in the state’s brief to the court:

1. The enhancement law applies only to criminal acts
    (i.e. selecting a victim), not to speech or actions protected
    by the First Amendment.

2. During sentencing, judges commonly consider many
    things including a criminal’s motives.

3. Unlike R.A.V. v. City of St. Paul, the law in this case
    does not prohibit specific speech, symbols, or beliefs.

4. The purpose of the state’s enhanced penalty law is to
    eliminate prejudiced criminal behavior, which is a “compelling
    governmental interest.”

The attorneys representing Mitchell made these points in their brief to the Supreme Court:
1. Selecting a victim is not an act but a mental process that
    is therefore protected by the First Amendment.

2. Judges may consider a broad range of things in sentencing
    criminals, but they should not be required to automatically
    lengthen penalties solely because of a criminal’s motives.

3. The enhancement law is based on a criminal’s motives, which
    are, in turn, based on his or her thoughts and beliefs, which are
    protected by the First Amendment.

4. The Wisconsin law also violates the equal protection clause of
    the 14th Amendment by treating criminals who are motivated
    by prejudice differently from criminals not so motivated, even
    though their crimes are identical.

On June 11, 1993, the U.S. Supreme Court upheld the Wisconsin hate-crime penalty-enhancement law. Writing for a unanimous court, Chief Justice William Rehnquist held that a criminal’s prejudiced motives may be used in sentencing, although “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.” The chief justice also stated that “the statute in this case is aimed at conduct unprotected by the First Amendment.” (State of Wisconsin v. Todd Mitchell.)

As the Wisconsin and Minnesota cases show, the line between punishing hate and protecting speech and free thought, can be difficult to draw. On one side, our Constitution seeks to assure tolerance and equal protection for all citizens no matter what their race, ethnicity, religion or gender. On the other hand, our constitution contains protections for individual beliefs, no matter how distasteful they might be. Finding a balance between the two is a challenge for us all.

1. In the R.A.V. v. City of St. Paul decision, the U.S. Supreme
    Court ruled that cross burnings are a form of free speech protected by
    the First Amendment. What reasons did the Court give for this decision?
    Do you agree or disagree? Why?

2. What reasons did the Court give for upholding enhanced penalities in
    the sentence of Todd Mitchell? Do you agree with the reasons?
    Why or why not?

3. Which, if any, of the following acts do you think could be prohibited
    under the constitution? Explain your answers.

a. A white skinhead calls for a race war in a speech on
    a public university campus.

b. In a speech before an all-black audience, a black speaker
    says that whites are “bloodsuckers” and are the enemy
    of African-Americans.

c. A Ku Klux Klan group wearing white hoods and robes
    holds a rally in a public park.

d. A high school student wears an armband with a swastika
   on it.

Jacobs, James B. “Should Hate Be A Crime?” Public Interest. Fall 1993: 3+.

Trebilcock, Bob. “Reading, ‘Riting, ‘Rithmetic. . . Racism.” Redbook. Oct. 1993: 98+.

R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992)

State of Wisconsin v. Todd Mitchell, 113 S.Ct. 2194 (1993)

Imagine that you are legal counsel for the Senate Judiciary Committee for the state of Minnisconsin. The committee has asked you to advise it about constitutionality of a bill which has been introduced on the floor of state legislature. It is your job to write a brief opinion and submit it to the committee. To complete the task, follow these steps:

Step 1: Carefully read the following “Committee Summary” of the proposed law:

Senate Judiciary Committee Summary—Proposed Legislation
Title: Arson Penalty Enhancement

Purpose and Legislative History: Cross burnings continue to be a significant problem in our state. Last year, 32 were reported statewide. Our previous state law was similar to the ordinance which was ruled unconstitutional by the U.S. Supreme Court in R.A.V v. City of St. Paul. The proposed legislation adds the following language to the definition of the crime of arson (in bold) :

Arson Defined. State Penal Code Sec. 1553-A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids counsels or procures the burning of any structure,, forest land, property or symbol on the land of another.
In addition, the statue adds an additional two year prison term to “any person who is convicted of arson and who selected the property to be burned or the land on which the property was burned on the basis of the owner’s or occupier’s race, religion, color, disability, sexual orientation, national origin or ancestry.”

Step 2: Carefully review the cases of R.A.V. v City of St. Paul and Wisconsin v. Mitchell from the article.

Step 3: Write a memo to the Senate Judiciary Committee which answers the following question: Does the First Amendment prohibit the definition of arson and/or the enhancement of the penalty for arson as described in the statute? In your answer be sure to use the court decisions in the two cases and give at least three reasons for your opinion. Turn in your opinion to the teacher and be prepared to discuss it with the class.

This Online Lesson is made possible by a generous grant from the W.M. Keck Foundation.



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