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Mitchell V. Wisconsin

On June 11, 1993, the United State Supreme Court upheld Wisconsins
penalty enhancement law, which imposes harsher sentences on criminals
who intentionally select the person against whom the crime…is
committed..because of the race, religion, color, disability, sexual
orientation, national origin or ancestry of that person. Chief
Justice Rehnquist deliverd the opinion of the unanimous Court. This
paper argues against the decision, and will attempt to prove the
unconstitutionality of such penalty enhancement laws.
On the evening of October 7, 1989, Mitchell and a group of young
black men attacked and severely beat a lone white boy. The group had
just finished watching the film Mississippi Burning, in which a
young black boy was, while praying, beaten by a white man. After the
film, the group moved outside and Mitchell asked if they felt hyped
up to move on some white people. When the white boy approached
Mitchell said, You all want to fuck somebody up? There goes a white
boy, Go get him. The boy was left unconscious, and remained in a
coma for four days. Mitchell was convicted of aggravated battery,
which carries a two year maximum sentence. The Wisconsin jury,
however, found that because Mitchell selected his victim based on
race, the penalty enhancement law allowed Mitchell to be sentenced to
up to seven years. The jury sentenced Mitchell to four years, twice
the maximum for the crime he committed without the penalty enhancement

The U.S. Supreme Courts ruling was faulty, and defied a number of
precedents. The Wisconsin law is unconstitutional, and is essentially
unenforceable. This paper primarily focuses on the constitutional
arguments against Chief Justice Rehnquists decision and the statute
itself, but will also consider the practical implications of the
Wisconsin law, as well as a similar law passed under the new federal
crime bill (Cacas, 32). The Wisconsin law and the new federal law are
based on a model created by the Anti- Defemation League in response to
a rising tide of hate-related violent crimes (Cacas, 33). Figures
released by the Federal Bureau of Investigation show that 7,684 hate
crimes motivated by race, religion, ethnicity, and sexual orientation
were reported in 1993, up from 6,623 the previous year. Of those
crimes in 1993, 62 percent were racially motivated (Cacas, 32).
Certainly, this is a problem the nation must address. Unfortunately,
the Supreme Court of the United States and both the Wisconsin and
federal governments have chosen to address this problem in a way that
is grossly unconstitutional.
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise therof; or abridging the freedom of
speech, or of the press; or the right of the people to peaceably
assemble, and to petition the government for a redress of grievances.
The most obvious arguments against the Mitchell decision are those
dealing with the First Amendment. In fact, the Wisconsin Supreme
Court ruled that the state statute was unconstitutional in their
decision, which the U.S. Supreme Court overruled. The Wisconsim
Supreme Court argued that the Wisconsin penalty enhancement statute,
violates the First Amendment directly by punishing what the
legislature has deemed offensive thought. The Wisconsin Court also
rejected the states argument that the statute punishes only the
conduct of intentional selection of a victim. The Courts
contention was that the statute punishes the because of aspect of
the defendants selection, the reason the defendant selected the
victim, the motive behind the selection. The law is in fact a
direct violation of the First Amendment, according to the Wisconsin
Supreme Court, which said the Wisconsin legislature cannot
criminalize bigoted thought with which it disagrees.

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If there is a bedrock principal underlying the First Amendment, it
is that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable. The Supreme Court was heard to utter such noble
phrases as recently as 1989, in Texas v. Johnson. Unfortunately these
idealistic principles seem to have been abandoned during Wisconsin v.

Clearly, Mitchells act of assaulting another human is a punishable
crime, and no one could logiacally argue that the First Amendment
protects this clearly criminal action. However, the states power to
punish the action does not remove the constitutional barrier to
punishing the criminals thoughts (Cacas, 337). The First Amendment
has generally been interpreted to protect the thoughts, as well as the
speech, of an individual (Cacas, 338). According to the Courts
majority opinion in Wooley v. Maynard, a 1977 case, At the heart of
the First Amendment is the notion that an individual should be free to
believe as he will, and that in a free society ones beliefs should be
shaped by his mind and his conscience rather than coerced by the

Another componet of Mitchells First Amendment argument against the
penalty enhancement law, was that the statute was overbroad, and might
have a chilling effect on free speech. Mitchell contended that with
such a penalty enhancement law, many citizens would be hesitant to
experess their unpopular opinions, for fear that those opinions would
be used against them in the future.
In Abrams v. United States, Justice Holmes, in his dissent, argued
that laws which limit or chill thought and expression detract from
the goal of insuring the availability of the broadest possible range
of ideas and expression in the marketplace of ideas.
Chief Justice Rehnquist, however, rejects the notion that the
Wisconsin statute could have a chilling effect on speech. We must
conjure up a vision of a Wisconsin citizen suppressing his unpopular
bigoted opinions for fear that if he later commits an offense covered
by the statute, these opinions will be offered at trial to establish
that he selected his victim on account of the victims protected
status, thus qualifying him for penalty enhancement… This is too
speculative a hypothesis to support Mitchells overbreadth claim.
However, a legitimate argument certainly exists that the logical next
step would be to examine the conversations, correspondence, and other
expressions of the accused person to determine whether a hate motive
prompted the crime, if a criminals sentence is being considered for
penalty enhancement (Feingold, 16). How can Rehnquist argue that
this will not cause a chilling effect?
Rehnquist denies this chilling effect exists under penalty
enhancement laws such as Wisconsins, but one must consider how
Rehnquist would rule if the penalty enhancement did not cover
something, such as racism, that he finds personally repugnant. The
recent attempt at political correctness differs only slightly from
the Red Scare of the 1950s. The anti-communists claimed and the
politically correct ideologists claim to have good intentions (The
Road to Hell…).Unfortunately, these two groups infringed upon the
rights of the minority in their quest to mold the htoughts of others
into ideas similar to their own.

How would Rehnquist rule if the statute called for enhanced penalties
for persons convicted of crimes while expressing Communist ideas? Or
what if the criminal was Mormon, and the majority found those
religious views morally repugnant? Could Rehnquist also justify
suppressing the religious freedoms found in the First Amendment, as
well as its free speech clause, if they were found to be as
reprehensible as racism by the general public? The United States
Supreme Court is granting selective protection of First Amendment
rights, in Mitchell v. Wisoconsin, and is yielding to political
pressure to suppress bigoted views.

Mitchells second constitutional argument is that the statute
violates the Foruteenth Amendment as well as the First. The
Foruteenth Amendment contains the equal protection clause, which
states that no state shall deny to any person within its jurisdiction
the equal protection of the laws. The Wisconsin statute punishes
offenders more seriously because of the views they express, and
punishes more leniently those whose motives are of an acceptable
nature (Gellman, 379). This seems to be a clear violation of the
Fourteenth Amendment, but again, Rehnquist (and the entire Supreme
Court), sees things quite diiferently.

Rehnquist argues that, The First Amendment… does not prohibit the
evidentiary use of speech to establish the elements of a crime and to
prove motive or intent. Motive, however, is used to establish guilt
or innocence, and is not in itself a crime. Undeniably, however,
those that express bigoted views are punished more severely than those
who do not.
Rehnquist, however, never specifically mentions the Fourteenth
Amendmeent because they were not developed by Mitchell and fell
outside of the question on which the Court granted certiorari.

Rehnquist also argues that Traditionally, sentencing judges have
considered a wide variety of factors in addition to evidence bearing
on guilt in determining what sentences to impose on a convicted
defendant… The defendants motive for committing the offense is one
important factor.
This is a compelling argument, but I would argue this practice is
itself of questionable constitutionality, in that it allows the
sentencing judge to exercise excessive discretionary judgement based
on his view as to what constitutes acceptable and unacceptable
motives. However, even if this practice is held to be constitutional,
surpassing the existing maximum penalty with an additional statute
that specifically lists bigotry as an unacceptable motive, certainly
qualifies as being the same as imposing an additional penalty for
unpopular beliefs.
To illuatrate the dangers inherent in laws such as Wisconsins
penalty enhancement statute, we need only examine Texas v. Johnson, a
1989 Supreme Court case. The states flag desecration statute was
ruled unconstitutional by the Court. However, using Rehnquists logic
in Mitchell, the state of Texas could have easily achieved their goal
by prohibiting public burning, a legitimate exercise of their police
power, and enhancing the penalty for those convicted of violating the
statute if they did so in in opposition to the government (Gellman,
380). Therefore, penalty enhancement laws such as Wisconsins give
the government too much power to excessively punish what it deems
Clearly, when the legislature enacts penalty enhancement laws with
the intent of suppressing unpopular ideas, the state violates both the
First and the Fouteenth Amendments. The state interferes with an
individuals right to free speech by suppressing ideas not supported
by the government, and fails to provide equal protection to all its
citizens when it punishes an act more severely when committed by an
individual whose opinions are not shared by the state. Mitchell v.
Wisconsin is a clear example of majority will infringing upon minority
rights, and proves that the BIll of Rights works well, except in the
instances when it is most needed.

There are probably more Supreme Court cases that favor Wisconsins
position than there are that support Mitchells argument. However,
many of these rulings are of questionable constitutionality
themselves. Two cases arguably support Rehnquists position, but the
Supreme Court has traditionally ignored the first of rulings, and the
second has been misinterpreted.

In Chaplinsky v. New Hampshire, Justice Murphy wrote what has become
known as the fighting words doctrine. Chaplinsky was a Jehovas
Witness in a predominantly Catholic town. He distributed leaflets to
a hostile crowd, and was refused protection by the towns marshall.
Chaplinsky then referred to the marshall as a god damn racketeer and
a damn fascist, for which he was convicted of breaching the peace.
Justice Murphys opinion argued that certain speech, including that
which is lewd, obscene, profane, or insulting, is not covered by the
First Amendment.

According to Murphy, There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which has
never been thought to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or
fighting words- those which by their very utterance inflict injury
or tend to incite an immediate breach of the peace.

Under Chaplinky, bigoted remarks would probably qualify as fighting
words. However, the courts have generally been reluctant to uphold
the fightingwords doctrine, and the Supreme Court has never done so
(Gellman 369,370). Even if todays Court were to consider Chaplinsky
valid, Mitchells comments, though racial in nature, would be
difficult to classify as bigoted. In fact, Constitutional
considerations aside, the biggest problem with penalty enhancement
laws such as Wisconsins, is classifying and prosecuting an incident
as hate-motivated (Cacas, 33). At what point can we be certain the
victim was selected based on race, religion, or sexual orientation?
Another more pressing problem is police unwillingness to investigate a
crime as hate-motivated (Cacas, 33). Certainly, the difficulting in
determining whether a crime is hate-motivated is one of the reasons
police are hesitant to pursue crimes as hate-motivated, and
illustrates yet another reason why such statutes should not exist.
Consider the following FBI guidelines to help determine whether a
crime is hate-motivated (Cacas, 33):
1. a substantial portion of the community where the crime occurred
perceives that the incident was bias-motivated;
2. the suspect was previously involved in a hate crime; and
3. the incident coincided with a holiday relating to, or a date of
particular significance to, a racial, religious, or ethnic/national
origin group
These guidelines certainly fail to offer any exact or definitive
system with which to classify crimes as hate-motivated.

Another case which is cometimes cited as a precedent to support
rulings such as Wisconsin v. Mitchell, is U.S. v. OBrien. OBrien
had burnt his draft card to protest the draft and the Vietnam War,
despite a law specifically forbidding the burning of draft cards.
The Supreme Court ruled that the statute did not differentiate between
public and private draft card burnings, and was therefore not a
government attempt to regulate symbolic speech, but a
constitutionality legitimate police power. The Court ruled that there
is no absolutist protection for symbolic speech.
Under OBrien, the government may regulate conduct which incidentally
infringes upon First Amendment rights, as long as the government
interest is unrelated to the suppression of belief or expression.
However, when states enact laws such as the Wisconsin statute, the
state is not regulating conduct despite its expressive elements, but
is penalizing conduct because of its expressive elements (Gellman,
376). Therefore, a more accurate interpretation of OBrien, would be
that it actually supports an argument against the Courts ruling in
WIsconsin, and is not a precedent to support Rehnquists decision.

Possibly more important, and certainly more recent, is the precedent
established in R.A.V. v. St. Paul, a 1992 case. This case involved a
juvenille who was convicted under the St. Paul Bias-Motivated Crime
Ordinance for burning a cross in the yard of a black family that lived
across the street from the petitioner. Justice Scalia delivered the
opinion of a unanimous Court, but the Court was divided in its
opinions for overturning the St. Paul statute.
Scalia argued that the city ordinance was overbroad, because it
punished nearly all controversial characterizations likely to arouse
resentment among defined protected groups, and under-inclusive,
because the government must not selectively penalize fighting words
directed at some groups while not prosecuting those addressed to
others, which is where the problem lies in the logic of the Mitchell
decision. Though Rehnquist argued that Wisconsin v. Mitchell did not
overturn R.A.V. v. St. Paul, If a hate speech law that enumerated
some categories is invalid because, in Justice Antonin Scalias
opinion in St. Paul, government may not regulate use based on
hostility- or favoritism- toward the underlying message involved, how
can a hate crime law be upheld that increases the penalty for crimes
motivated by some hates but not those motivated by other hates? In
other words, if the St. Paul statute is determined to be
under-inclusive, how can we include every conceivable hate within the
context of any statute.

To be consistent, legislatures must now include other categories,
including sex, physical characteristics, age, party affiliation,
anti-Americanism or position on abortion.(Feingeld, 16)
More interesting (and Constitutional) than the majority opinion in
R.A.V. v. St. Paul, is the concurring opinion written by Justice
White, with whom Justice Blackmun and Justice OConnor join.
White writes, Although the ordinance as construed reaches egories of
speech that are constitutionally unprotected, it also criminalizes a
substantial amount of expression that- however repugnant- is shielded
by the First Admendment… Our fighting words cases have made clear,
however, that such generalized reactions are not sufficient to strip
expression of its constitutional protection. The mere fact that
expressive activity causes hurt feelings, offense, or resentment does
not render the expression unprotected… The ordinance is therefore
fatally overbroad and invalid on its face…

Rehnquist argues that whereas the ordinance struck down in R.A.V.
was explicitly directed at expression, the statute in this case is
aimed at conduct unprotected by the First Amendment. Nevertheless,
had Mitchell not stated, There goes a white boy; go get him, his
sentence would not have been enhanced, he would have instead received
the maximum sentence of two years in jail for his crime, instead of
four. Therefore, the Wisconsin statute does not only punish conduct,
as Justice Rehnquist suggests, but speech as well.

The Wisconsin v. Mitchell decision cannot simply be viewed as one
that does harm to racists and homophobics. There are much broader
costs to society than the quieted opinions of an ignorant few.
First, laws which chill thought or limit expression detract from the
goal of insuring the availability of the broadest possible range of
ideas and expressions in the marketplace of ideas. Second, the
Mitchell ruling not only affects eveyones free speech rights with a
general constriction of the interpretation of the First Amendment, but
the ruling makes way for further constrictions. Third, penalty
enhancement laws place the legislature in the position of judging and
determining the quality of ideas, and assumes that the government has
the capacity to make such judgements. Fourth, without the expression
of opinions generally deemd unacceptable by society, society tends to
forget why those opinions were deemed unacceptable in the first place.
(More specifically, nothing makes a skinhead seem more stupid than
allowing him to voice his opinion under the scrutiny of a national
television audience.) Finally, when society allows the free
expression of all ideas, regardless of its disdain for those ideas, it
is a sign of strength. So when a society uses all its power to
suppress ideas, it is certainly a sign of that societys weakness
(Gellman, (381-385).

The United States Supreme Courts unanimous decision in Wisconsin v.
Mitchell is incorrect for a number of reasons. Constitutionally, the
decision fails to comply with the freedom of speech guaranteed in the
First Amendment, and the guarantee to all citizens of equal protection
under the laws, listed in the Fourteenth Amendment. The decision also
arguably overturns R.A.V. v. St. Paul, and suggests that the Court may
be leaning towards a new fighting words doctrine, where unpopular
speech equals unprotected speech. The decision also damages societ as
a whole in ways that are simply immeasureable in their size, such as
those listed in the preceding paragraph. Wisconsin v. Mitchell is a
terribly flawed Supreme Court decision, which one can only hope will
be overturned in the very near future.

The freedom to differ is not limited to things that do not matter
much. That would be a mere sahdow of a freedom. The test of its
substance is the right to differ as to things that touch the heart of
the existing order.

If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion or other matters of
opinion… -Justice Jackson in W.V. Board of Education. v.
Cacas, Samuel. Hate Crime Sentences Can Now Be Enhanced Under A New
Federal Law. Human Rights 22 (1995): 32-33
Feingold, Stanley. Hate Crime Legislation Muzzles Free Speech. The
National Law Journal 15 (July 1, 1993): 6, 16
Gellman, Susan. Sticks And Stones. UCLA Law Review 39 (December,
1991): 333-396
Chaplinsky v. New Hampshire
R.A.V. v. St. Paul
Texas v. Johnson
U.S. v. OBrien
Wisconsin v. Mitchell
Wooley v. Maynard
W.V. State Board of Education v. Barnette


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