Hate speech and the Constitution.

• Author: Dry, Murray

On June 22, 1992, the United States Supreme Court unanimously struck down a bias-motivated crime ordinance in R.A.V. v. St. Paul, Minnesota,(1) and then on June 11, 1993 it unanimously upheld a penalty enhancement provision for bias-motivated crimes in Wisconsin v. Mitchell.(2) These two different decisions in otherwise similar cases appear to be explicable on the basis of the difference between speech, or expression, which is protected by the First Amendment, and conduct, which is not, as the Supreme Court maintained.(3) In the first case, petitioner R.A.V. was charged with burning a cross on a black family's lawn; the Court regarded such conduct as protected symbolic expression. In the second case, Mitchell was convicted of aggravated battery and then had his sentence enhanced, from two years to four, when the jury determined that he had selected his victim on the basis of race. Mitchell, who is black, directed three of his friends to beat up a white boy, after they had all seen the movie Mississippi Burning, in which "a white man beat up a black boy who was praying."(4)

The cases are complicated and worthy of careful study for two reasons. First, the Supreme Court divided five to four on the grounds of the decision in the R.A.V. case. In his court opinion, Justice Scalia complicated first amendment law by extending some protection to forms of expression, such as "fighting words," that had previously been viewed as categories of simply unprotected speech; the four concurring Justices took issue with that, claiming both that it was unnecessary since the law was overbroad in the first place, and also that if the law had not been overbroad the substantial harm of the prohibited symbolic expression justified the prohibition. Second, the Mitchell case was closer to the R.A.V. case--and more difficult--than the Supreme Court acknowledged. The Wisconsin Supreme Court treated the issues more fully, as we shall see. In addition, Professor Cass Sunstein, who supported the Mitchell decision, nonetheless wrote the following:

But consider the fact that the government imposes the additional

penalty because it thinks that hate crimes create distinctive

subjective and objective harm. The distinctive harm is

produced in part because of the symbolic or expressive nature

of hate crimes. This justification is the same as that in the

cross-burning case. This does not mean that it is impossible to

draw distinctions between enhanced penalty statutes and `hate

speech' laws. But it does mean that if the justification for the

hate crimes measures is sufficiently neutral, the same should

be said for narrow restrictions on hate speech.(5)

The two cases, then, may be said to deal with one topic, hate speech, or as the late Harry Kalven called it, "ideological fighting words."(6) In some respects, these cases offer a replay of the constitutional controversies that gave rise to some of our current first amendment doctrines:"fighting words," in Chaplinsky v. New Hamsphire (1942), what Kalven called "ideological fighting words" in Terminiello v. Chicago (1949), and "group libel" in Beauharnais v. Illinois (1953). The replay, however, takes place against a backdrop of the more speech protective cases of the 1960s and 1970s: New York Times v. Sullivan (1964), Brandenburg v. Ohio (1969), and Cohen v. California (1971), as well as the flag burning cases of 1989 and 1990. It also takes place at a time when there is both a widespread concern about and a controversy over the distinctive harms resulting from speech or conduct which singles out individuals or groups on the basis of race or gender, sexual preference, religion, or national origin.

The origin of this hate speech controversy is the movement for "hate speech" codes on college and university campuses, notably at Michigan and Stanford in 1989-1990. In the Michigan case, a federal district court overturned Michigan's speech code and the university did not appeal the decision.(7) The Stanford case did not get into the courts as Stanford is a private school, but it was debated on campus in terms of the first amendment standard and that debate has been widely publicized.(8) Many other colleges and universities followed with their own versions of a harassment or hate speech code, and I think it will become clear that the intensity of disagreement among the Justices in the R.A.V. case was due at least in part to the effect of that decision on speech codes at public colleges and universities.

In part one, then, I will discuss the R.A.V. case. I will focus on three things: the concurring Justices' argument for decision by way of overbreadth; the majority opinion's application of two related requirements--content neutrality and viewpoint neutrality--to speech hitherto regarded as categorically not protected and hence subject to prohibition; and Justice Stevens' argument concerning the inadequacy of the categorical approach and nature of the harm of hate speech.

In part two, I will discuss Wisconsin v. Mitchell, beginning with the opinions of the Wisconsin Supreme Court. As already noted, the main issue concerns the extent to which protected speech is indirectly but nonetheless significantly punished. A related topic concerns the relationship between a penalty-enhancing statute and anti-discrimination laws.

Finally, in conclusion, I will bring the two cases together by considering the conflict between, on the one hand, the neutrality requirement, with respect to content and especially "viewpoint,"' and, on the other, the harm of hate speech and the case for enhanced penalties for hate crimes as a way of getting around the first amendment barrier.

I

The city of St. Paul prosecuted "R.A.V." (the names of juveniles are withheld for confidentiality), under a Bias Motivated Crime Ordinance for allegedly constructing a crudely-made cross and burning it inside the fenced yard of a black family. The authorities apparently chose to prosecute under the ordinance, rather than under more specific felony statutes(9) to highlight the city's condemnation of "hate crimes."(10) The ordinance made it a misdemeanor for anyone to place "on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, 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...."(11) The state district court found the ordinance in violation of the First Amendment, but Minnesota's Supreme Court reversed, upholding the ordinance by interpreting it to reach no more than unprotected expression under the "fighting words" doctrine...