What if Wisconsin v. Mitchell Had Involved Martin Luther King, Jr.? The Constitutional Flaws of Hate Crime Enhancement Statutes

George Washington Law Review

Volumn 65, Issue 6, 1997, Pages 1014-1070

  Gey, Steven G ^a,b,c  

^a FLORIDA STATE UNIVERSITY   (United States)

^b ECKERD COLLEGE   (United States)

^c Columbia University ^*

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EID: 0031518986     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (325)

1. 508 U.S. 476 (1993).
2. See id. at 490.
3. See id. at 481-82, 485-90.
4. See, e.g., Justice in Punishing "Hate Crimes", PLAIN DEALER, June 22, 1993, at 4B; No Haven for Hate Crimes, N. Y. TIMES, June 16, 1993, at A24; No Shield for Hate-Inspired Crimes, CHI. TRIB., June 19, 1993, at 22. The Boston Globe urged the Supreme Court to uphold the Wisconsin statute before the Mitchell decision. See Free Speech and "Hate Crimes", BOSTON GLOBE, Feb. 20, 1993, at 14. The Washington Post provided a notable exception to the general editorial acclaim for the Mitchell outcome. See A "Hate-Crime" Ruling, WASH. POST, June 14, 1993, at A18.
5. See, e.g., Justice in Punishing "Hate Crimes", PLAIN DEALER, June 22, 1993, at 4B; No Haven for Hate Crimes, N. Y. TIMES, June 16, 1993, at A24; No Shield for Hate-Inspired Crimes, CHI. TRIB., June 19, 1993, at 22. The Boston Globe urged the Supreme Court to uphold the Wisconsin statute before the Mitchell decision. See Free Speech and "Hate Crimes", BOSTON GLOBE, Feb. 20, 1993, at 14. The Washington Post provided a notable exception to the general editorial acclaim for the Mitchell outcome. See A "Hate-Crime" Ruling, WASH. POST, June 14, 1993, at A18.
6. See, e.g., Justice in Punishing "Hate Crimes", PLAIN DEALER, June 22, 1993, at 4B; No Haven for Hate Crimes, N. Y. TIMES, June 16, 1993, at A24; No Shield for Hate-Inspired Crimes, CHI. TRIB., June 19, 1993, at 22. The Boston Globe urged the Supreme Court to uphold the Wisconsin statute before the Mitchell decision. See Free Speech and "Hate Crimes", BOSTON GLOBE, Feb. 20, 1993, at 14. The Washington Post provided a notable exception to the general editorial acclaim for the Mitchell outcome. See A "Hate-Crime" Ruling, WASH. POST, June 14, 1993, at A18.
7. See, e.g., Justice in Punishing "Hate Crimes", PLAIN DEALER, June 22, 1993, at 4B; No Haven for Hate Crimes, N. Y. TIMES, June 16, 1993, at A24; No Shield for Hate-Inspired Crimes, CHI. TRIB., June 19, 1993, at 22. The Boston Globe urged the Supreme Court to uphold the Wisconsin statute before the Mitchell decision. See Free Speech and "Hate Crimes", BOSTON GLOBE, Feb. 20, 1993, at 14. The Washington Post provided a notable exception to the general editorial acclaim for the Mitchell outcome. See A "Hate-Crime" Ruling, WASH. POST, June 14, 1993, at A18.
8. See, e.g., Justice in Punishing "Hate Crimes", PLAIN DEALER, June 22, 1993, at 4B; No Haven for Hate Crimes, N. Y. TIMES, June 16, 1993, at A24; No Shield for Hate-Inspired Crimes, CHI. TRIB., June 19, 1993, at 22. The Boston Globe urged the Supreme Court to uphold the Wisconsin statute before the Mitchell decision. See Free Speech and "Hate Crimes", BOSTON GLOBE, Feb. 20, 1993, at 14. The Washington Post provided a notable exception to the general editorial acclaim for the Mitchell outcome. See A "Hate-Crime" Ruling, WASH. POST, June 14, 1993, at A18.
9. Among the rare exceptions are an article by Mr. Mitchell's lawyers, see Lynn Adelman & Pamela Moorshead, Bad Laws Make Hard Cases: Hate Crime Laws and the Supreme Court's Opinion in Wisconsin v. Mitchell, 30 GONZ. L. REV. 1 (1994/95), another by a political science professor, see Murray Dry, Hate Speech and the Constitution, 11 CONST. COMMENTARY 501, 509-13 (1994-95), and a student-written commentary, see Adam Candeub, Comment, Motive Crimes and Other Minds, 142 U. PA. L. REV. 2071, 2113-23 (1994). Almost no law professors have criticized the decision. Prior to the Mitchell decision, however, Professor Martin Redish heavily criticized sentence enhancement laws. See Martin H. Redish, Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First Amendment Theory, CRIM. JUST. ETHICS, Summer/Fall 1992, at 29. The most prominent article opposing the approach to hate speech that the Supreme Court ultimately took also was published (again, by a practitioner rather than a professor) prior to the Court's decision in Mitchell. See Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV. 333 (1991).
10. Among the rare exceptions are an article by Mr. Mitchell's lawyers, see Lynn Adelman & Pamela Moorshead, Bad Laws Make Hard Cases: Hate Crime Laws and the Supreme Court's Opinion in Wisconsin v. Mitchell, 30 GONZ. L. REV. 1 (1994/95), another by a political science professor, see Murray Dry, Hate Speech and the Constitution, 11 CONST. COMMENTARY 501, 509-13 (1994-95), and a student-written commentary, see Adam Candeub, Comment, Motive Crimes and Other Minds, 142 U. PA. L. REV. 2071, 2113-23 (1994). Almost no law professors have criticized the decision. Prior to the Mitchell decision, however, Professor Martin Redish heavily criticized sentence enhancement laws. See Martin H. Redish, Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First Amendment Theory, CRIM. JUST. ETHICS, Summer/Fall 1992, at 29. The most prominent article opposing the approach to hate speech that the Supreme Court ultimately took also was published (again, by a practitioner rather than a professor) prior to the Court's decision in Mitchell. See Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV. 333 (1991).
11. Among the rare exceptions are an article by Mr. Mitchell's lawyers, see Lynn Adelman & Pamela Moorshead, Bad Laws Make Hard Cases: Hate Crime Laws and the Supreme Court's Opinion in Wisconsin v. Mitchell, 30 GONZ. L. REV. 1 (1994/95), another by a political science professor, see Murray Dry, Hate Speech and the Constitution, 11 CONST. COMMENTARY 501, 509-13 (1994-95), and a student-written commentary, see Adam Candeub, Comment, Motive Crimes and Other Minds, 142 U. PA. L. REV. 2071, 2113-23 (1994). Almost no law professors have criticized the decision. Prior to the Mitchell decision, however, Professor Martin Redish heavily criticized sentence enhancement laws. See Martin H. Redish, Freedom of Thought as Freedom of Expression: Hate Crime Sentencing Enhancement and First Amendment Theory, CRIM. JUST. ETHICS, Summer/Fall 1992, at 29. The most prominent article opposing the approach to hate speech that the Supreme Court ultimately took also was published (again, by a practitioner rather than a professor) prior to the Court's decision in Mitchell. See Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV. 333 (1991).
12. See Mitchell, 508 U.S. at 485-87.
13. See id. at 485-86.
14. See id. at 490. For examples of other, similar state statutes, see George P. Choundas, Comment, Neither Equal nor Protected: The Invisible Law of Equal Protection, the Legal Invisi bility of Its Gender-Based Victims, 44 EMORY L.J. 1069, 1079-81 & nn.26 & 28-31 (1995).
15. WIS. STAT. § 939.645(1)(b) (1989-90), reprinted in Mitchell, 508 U.S. at 480 n.1. The statute was amended in 1992, after Mitchell's trial. See Mitchell, 508 U.S. at 480 n.1.
16. See Mitchell, 508 U.S. at 479-80.
17. Id. at 480.
18. See id.
19. Id.
20. See id.
21. See WIS. STAT. ANN. §§ 940.19, 939.50(3)(e) (West 1996); Mitchell, 508 U.S. at 480.
22. See WIS. STAT. ANN. § 939.645(2)(c); Mitchell, 508 U.S. at 480.
23. See Mitchell, 508 U.S. at 480-81.
24. See State v. Mitchell, 473 N.W.2d 1, 2 (Wis. Ct. App. 1991), rev'd, 485 N.W.2d 807 (Wis. 1992), rev'd, 508 U.S. 476 (1993).
25. See State v. Mitchell, 485 N.W.2d 807, 817 (Wis. 1992), rev'd, 508 U.S. 476 (1993).
26. See Mitchell, 508 U.S. at 485-89, 490.
27. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 926-29 (1982) (holding that the First Amendment protected a speaker's implicit threats against violators of a boycott of white businesses because the speech did not incite immediate lawless action); Hess v. Indiana, 414 U.S. 105, 106-08 (1973) (per curiam) (determining that the First Amendment protects the right of a man to yell "We'll take the fucking street later" during an antiwar demonstration); Gooding v. Wilson, 405 U.S. 518, 519-20 & n.1 (1972) (affirming the setting aside of a conviction of a man who said to a police officer during an antiwar demonstration, "White son of a bitch, I'll kill you"); Cohen v. California, 403 U.S. 15, 16, 26 (1971) (holding that a state may not prosecute a man for wearing a jacket bearing words "Fuck The Draft" in a courthouse corridor).
28. The policeman, who had responded to a call about a domestic dispute, reported, "As I tried to make contact with Mr. Hamm, he became verbally aggressive towards me and stated, 'I'll shoot you white cracker.'" Larry Rohter, Without Smiling, to Call Floridian a 'Cracker' May Be a Crime, N.Y. TIMES, Aug. 25, 1991, at A26. Michael Hamm was charged with assault, which carried a potential sentence of one year in prison. See id. Because of the "cracker" comment, Hamm faced an additional two-year penalty under the Florida Hate Crimes Act. See id. Prosecutors eventually dropped the charges because of insufficient evidence to support the assault charge. See Hate-Crime Charge Dropped Against Black Man in Florida, N.Y. TIMES, Aug. 31, 1991, at A10. The Florida Supreme Court later upheld the Florida Hate Crimes Act, analogizing the Florida statute to the Wisconsin statute upheld in Mitchell. See State v. Stalder, 630 So.2d 1072, 1075-77 (Fla. 1994). Because the prosecution dropped the charges against Mr. Hamm, it is unsettled whether using the word "cracker" while committing a crime against a white person will subject someone to enhanced penalties under Florida's statute. The state representative who sponsored the legislation stated, "[M]y administrative assistant and I disagree [about whether calling a white person a 'cracker' would trigger the enhancement statute]." Rohter, supra. "I think it does pertain," the legislator continued, "but it's a fine line of interpretations, and the legislation will have to have its test in court." Id. Of course, the first step of any legislation's "test in court" is a judicial determination of the legislature's intent regarding the statute's scope. The fact that even the legislation's sponsor has no definite idea whether the statute applies to this well-known regional epithet illustrates the vagueness problem that plagues all hate crime enhancement statutes.
29. The policeman, who had responded to a call about a domestic dispute, reported, "As I tried to make contact with Mr. Hamm, he became verbally aggressive towards me and stated, 'I'll shoot you white cracker.'" Larry Rohter, Without Smiling, to Call Floridian a 'Cracker' May Be a Crime, N.Y. TIMES, Aug. 25, 1991, at A26. Michael Hamm was charged with assault, which carried a potential sentence of one year in prison. See id. Because of the "cracker" comment, Hamm faced an additional two-year penalty under the Florida Hate Crimes Act. See id. Prosecutors eventually dropped the charges because of insufficient evidence to support the assault charge. See Hate-Crime Charge Dropped Against Black Man in Florida, N.Y. TIMES, Aug. 31, 1991, at A10. The Florida Supreme Court later upheld the Florida Hate Crimes Act, analogizing the Florida statute to the Wisconsin statute upheld in Mitchell. See State v. Stalder, 630 So.2d 1072, 1075-77 (Fla. 1994). Because the prosecution dropped the charges against Mr. Hamm, it is unsettled whether using the word "cracker" while committing a crime against a white person will subject someone to enhanced penalties under Florida's statute. The state representative who sponsored the legislation stated, "[M]y administrative assistant and I disagree [about whether calling a white person a 'cracker' would trigger the enhancement statute]." Rohter, supra. "I think it does pertain," the legislator continued, "but it's a fine line of interpretations, and the legislation will have to have its test in court." Id. Of course, the first step of any legislation's "test in court" is a judicial determination of the legislature's intent regarding the statute's scope. The fact that even the legislation's sponsor has no definite idea whether the statute applies to this well-known regional epithet illustrates the vagueness problem that plagues all hate crime enhancement statutes.
30. 482 U.S. 451 (1987).
31. Id. at 453-54.
32. See Id. at 454, 472.
33. Id. at 462-63.
34. Although proof of some other crime must accompany the "cracker" phrase to be the basis for a criminal enhancement sanction, the key fact in the application of a hate crime enhancement statute is that words themselves are the sole basis for the additional punishment. The next section will address this argument at length. See infra notes 45-201 and accompanying text. The fact that the defendant's words are punished violates both the holding and the rationale of Hill, in which Justice Brennan distinguished disruptive speech (which is protected) and obstructive conduct (which is not): "Although [a] person might constitutionally be punished under a tailored statute that prohibited individuals from physically obstructing an officer's investigation, he or she may not be punished under a broad statute aimed at speech." Hill, 482 U.S. at 463 n.11.
35. See Hill, 482 U.S. at 462-63.
36. 395 U.S. 444 (1969) (per curiam).
37. See id. at 445-47.
38. Id. at 444-45 (citing OHIO REV. CODE ANN. § 2923.13 (Anderson 1996)).
39. See id. at 448-49, 449 n.3.
40. See Noto v. United States, 367 U.S. 290 (1961).
41. Brandenburg, 395 U.S. at 447-48 (quoting Noto, 367 U.S. at 297-98).
42. 505 U.S. 377 (1992).
43. Id. at 380, 396 (quoting ST. PAUL, MINN., LEGISLATIVE CODE § 292.02 (1990)).
44. See id. at 379-80.
45. See id. at 396; id. at 397 (White, J., concurring). The four concurring Justices argued that the St. Paul ordinance was unconstitutionally overbroad. See id. at 397 (White, J., concurring). Although the concurring Justices disagreed with Justice Scalia's broad language concerning the impermissibility of content-based speech regulations, they nevertheless relied on the First Amendment tradition of protecting hateful speech. The concurring Justices argued that the ordinance was overbroad because it criminalized speech that did not "by [its] very utterance inflict injury or tend to incite an immediate breach of the peace." See id. at 413-14 (White, J., concurring) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). This imminent-danger principle, which is taken from the Court's fighting words cases, serves the same function of protecting hateful and antagonistic speech that the Brandenburg test serves in the political speech area. Thus, although the concurring Justices' approach to the case differed from Scalia's, the concurring Justices and the majority in R.A.V. both recognized that racist speech could not be criminalized for its own sake.
46. Id. at 382 (citations omitted).
47. See id. at 391.
48. See id. at 391-92.
49. Id. at 394.
50. See Wisconsin v. Mitchell, 508 U.S. 476, 485-86 (1993). The Court noted that judges making sentencing determinations are permitted to consider racial animus when relevant to the defendant's motive. See id.
51. See id. at 487-88. The Court asserted that the Wisconsin statute reflected the state's belief that bias-inspired conduct causes a greater degree of individual and societal harm than does nonbias-inspired conduct. See id.
52. See WIS. STAT. ANN. § 940.19 (West 1996).
53. Mitchell, 508 U.S. at 480.
54. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) ("[T]he constitutional guarantee[] of free speech . . . do[es] not permit a State to forbid or proscribe advocacy of the use of force or of Jaw violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."). For examples of cases in which the plaintiff asserted that a defendant's speech was unprotected by the First Amendment, see NAACP v. Claiborne Hardware Co., 458 U.S. 886, 889-90 (1982), in which white merchants argued that demonstrations and speeches by boycotters contributed to violence and tortious interference with the merchants' businesses, Hess v. Indiana, 414 U.S. 105, 105-07 (1973) (per curiam), in which the prosecution argued that the defendant's statement "We'll take the fucking street later" during an antiwar demonstration violated the state's disorderly conduct statute, and Street v. New York, 394 U.S. 576, 578-79 (1969), in which defendant, after burning an American flag on the street and shouting "If they let that happen to [James] Meredith we don't need an American flag," was charged with defiling an American flag in violation of a New York statute.
55. See Claiborne Hardware, 458 U.S. at 916 ("The First Amendment does not protect violence. . . . No federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. When such conduct occurs in the context of constitutionally protected activity, however, 'precision of regulation' is demanded." (citation omitted) (quoting NAACP v. Button, 371 U.S. 415, 438 (1963))); Hess, 414 U.S. at 109 ("[S]ince there was no evidence, or rational inference from the import of the language, that [the defendant's] words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had 'a tendency to lead to violence.'" (citation and internal quotations omitted) (quoting Hess v. State, 297 N.E.2d 413, 415 (Ind.), rev'd, 414 U.S. 105 (1973) (per curiam))); Street, 394 U.S. at 591-92 (finding that the petitioner's words "did not urge anyone to do anything unlawful" and "were [not] so inherently inflammatory as to come within the small class of 'fighting words' which are 'likely to provoke the average person to retaliation, and thereby cause a breach of the peace'" (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942))).
56. See Brandenburg, 395 U.S. at 447.
57. Id. at 456-57 (Douglas, J., concurring). According to the Brandenburg per curiam opinion, a criminal statute that fails to distinguish speech (in the form of abstract advocacy) from action (in the form of "preparing a group for violent action and steeling it to such action") is an unconstitutional intrusion into First Amendment freedoms. See id. at 448 (quoting Noto v. United States, 367 U.S. 290, 298 (1961)).
58. Id. at 448.
59. The relevant Wisconsin statute states: Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it . . . . A person is concerned in the commission of the crime if the person . . . advises, hires, counsels or otherwise procures another to commit it. WIS. STAT. ANN. § 939.05(1), (2)(c) (West 1996).
60. Schenck v. United States, 249 U.S. 47, 52 (1919).
61. See WIS. STAT. § 939.645(1)(b) (1989-90) (subjecting a person to enhanced penalties if that person "[i]ntentionally selects the [victim] . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of [that victim]"), reprinted in Wisconsin v. Mitchell, 508 U.S. 476, 480 n.1 (1993).
62. See Mitchell, 508 U.S. at 488 ("[A]ccording to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.").
63. See Texas v. Johnson, 491 U.S. 397, 414 (1989) ("If there is a bedrock principle 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.").
64. See Mitchell, 508 U.S. at 484.
65. See id.
66. See id.; State v. Mitchell, 485 N.W.2d 807, 812 (Wis. 1992), rev'd, 508 U.S. 476 (1993); Brief of Petitioner at 13 & n.1, Wisconsin v. Mitchell, 508 U.S. 476 (1993) (No. 92-515) [hereinafter Brief of Petitioner].
67. See Brief of Petitioner, supra note 59, at 13.
68. Id.
69. Mitchell, 485 N.W.2d at 819 (Abrahamson, J., dissenting); see id. at 820 (Bablitch, J., dissenting).
70. See United States v. O'Brien, 391 U.S. 367, 376 (1968) ("We cannot accept 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.").
71. See Cox v. Louisiana, 379 U.S. 536, 555 (1965) ("We emphatically reject the notion . . . that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct . . . as these amendments afford to those who communicate ideas by pure speech.").
72. See O'Brien, 391 U.S. at 377.
73. The Court asserted in Ward v. Rock Against Racism: [E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
74. Although the phrasing of the standard in symbolic speech and in time, place, and manner cases is slightly different (the language in the text comes from the symbolic speech cases), the Supreme Court has held that the standards are functionally identical. See Ward, 491 U.S. at 798; Community for Creative Non-Violence, 468 U.S. at 298. As a practical matter, the standard now applied by the Court to both types of cases is a fairly weak version of the time, place, and manner test. The Court effectively has abandoned the narrow-tailoring requirement originally included in the symbolic speech standard. See Susan H. Williams, Content Discrimination and the First Amendment, 139 U. PA. L. REV. 615, 653-54 (1991).
75. Although the phrasing of the standard in symbolic speech and in time, place, and manner cases is slightly different (the language in the text comes from the symbolic speech cases), the Supreme Court has held that the standards are functionally identical. See Ward, 491 U.S. at 798; Community for Creative Non-Violence, 468 U.S. at 298. As a practical matter, the standard now applied by the Court to both types of cases is a fairly weak version of the time, place, and manner test. The Court effectively has abandoned the narrow-tailoring requirement originally included in the symbolic speech standard. See Susan H. Williams, Content Discrimination and the First Amendment, 139 U. PA. L. REV. 615, 653-54 (1991).
76. See O'Brien, 391 U.S. at 382 (distinguishing between the regulation of noncommunicative aspects of symbolic speech and the communicative component that is integral to the symbolic speech).
77. State v. Mitchell, 485 N.W.2d 807, 819 (Wis. 1992) (Abrahamson, J., dissenting), rev'd, 508 U.S. 476 (1993).
78. See supra notes 35-42 and accompanying text.
79. Mitchell, 485 N.W.2d at 819 (Abrahamson, J., dissenting).
80. Brief of Petitioner, supra note 59, at 20-21.
81. See infra notes 74-201 and accompanying text.
82. See supra note 71 and accompanying text.
83. See WIS. STAT. ANN. §§ 939.50, 940.19 (West 1996).
84. See id. § 939.645(1)(b).
85. See Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993).
86. Id.
87. U. at 485.
88. See id. Rehnquist states: "Traditionally, 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." Id. (citing Payne v. Tennessee, 501 U.S. 808, 820-21 (1991); United States v. Tucker, 404 U.S. 443, 446 (1972); Williams v. New York, 337 U.S. 241, 246 (1949)).
89. See Payne, 501 U.S. at 820-21; Tucker, 404 U.S. at 446; Williams, 337 U.S. at 246.
90. Payne, 501 U.S. at 819.
91. 404 U.S. 443 (1972).
92. Id. at 446.
93. 337 U.S. 241 (1949).
94. Id. at 246.
95. Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993).
96. 503 U.S. 159 (1992).
97. See id. at 163.
98. See id. at 166 ("[T]he murder victim was white, as is Dawson; elements of racial hatred were therefore not involved in the killing.").
99. 463 U.S. 939 (1983) (plurality opinion).
100. Id. at 942, 949 (quoting the findings of the sentencing judge).
101. See id. at 943-44, 949.
102. See id. at 948 n.6.
103. Wisconsin v. Mitchell, 508 U.S. 476, 486 (1993).
104. Justice Stevens, joined by Justice Powell, concurred in the judgment upholding the sentence and noted that "the judge's candid exposition of his deeply felt concern about racial crimes had no bearing on any statutory aggravating circumstance, but in and of itself it does not undermine the legitimacy of the ultimate sentence." Barclay, 463 U.S. at 970 (Stevens, J., concurring). Stevens noted that judges will often reflect the community's sense of outrage at particular crimes but also commented that "if the criteria imposed by law are not satisfied in a particular case, a trial judge's reactions based on his personal experiences cannot justify the death penalty. But that is not the case here." Id. at 971 (Stevens, J., concurring). According to Stevens, if other evidence had not supported the trial judge's findings regarding the four statutory aggravating circumstances justifying a death penalty - none of which related to Barclay's racism - the judge could not have used Barclay's racial views as the basis of a death sentence. See id. at 967-69. In other words, Barclay's racism was irrelevant. The three dissenters in Barclay - Justices Brennan, Marshall, and Blackmun - did not specifically address the relevance of Barclay's racial views, but based on their attacks on the sufficiency of the evidence supporting the aggravating factors used to sentence Barclay and on their harsh comments about the trial judge, one might fairly infer their skepticism about using this evidence. As Justice Marshall stated, "[T]he [trial] judge's sentencing order in this case was totally inadequate. . . . Nor can the sentencing judge's abysmal performance be deemed inadvertent or aberrant." Id. at 980 (Marshall, J., dissenting). Justice Blackmun added: The errors and missteps - intentional or otherwise - come close to making a mockery of the Florida statute and are too much for me to condone. Petitioner Barclay, reprehensible as his conduct may have been, deserves to have a sentencing hearing and appellate review free of such misapplication of law . . . . Id. at 991 (Blackmun, J., dissenting).
105. Id. at 949 (plurality opinion).
106. See id.
107. See id. at 944.
108. Gregg v. Georgia, 428 U.S. 153, 184 (1976).
109. See Steven G. Gey, Justice Scalia's Death Penalty, 20 FLA. ST. U. L. REV. 67, 114-19 (1992).
110. See id.
111. See id.
112. Of course, this assumes that Barclay's sentence was a fair application of the Florida statute, which, as Justice Marshall's Barclay dissent points out in convincing detail, is an assumption that may not bear close scrutiny. See Barclay, 463 U.S. at 976-87 (Marshall, J., dissenting). Under Florida's unusual death penalty system, the trial judge could sentence Barclay to death even though the jury had recommended that Barclay be sentenced to life in prison. See id. at 944 (plurality opinion).
113. Id. at 942-43.
114. Thus, the difference between Barclay and Dawson is not that Barclay was a black racist-on-white crime and Dawson was a white racist-on-white crime; the difference lies in the nature of all the circumstances surrounding the two crimes. Dawson's racism (like the views of the hypothetical kinder and gentler Barclay described in the text accompanying this note) was irrelevant because there was no indication that it had so affected his view of the world as to cast him into the ranks of the incorrigible.
115. See supra notes 63-69 and accompanying text.
116. See supra notes 74-82 and accompanying text.
117. The Court in R.A.V. observed: We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses - so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not. R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992); see Texas v. Johnson, 491 U.S. 397, 407 (1989) ("[W]here '"speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.'" (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968))).
118. See R.A.V., 505 U.S. at 387-90.
119. See id. at 388-89.
120. Id. at 388.
121. See 18 U.S.C. § 871 (1994).
122. See R.A.V., 505 U.S. at 388.
123. See City of Houston v. Hill, 482 U.S. 451, 461-67 (1987), Lewis v. City of New Orleans, 415 U.S. 130, 132-34 (1974), and Gooding v. Wilson, 405 U.S. 518, 521-28 (1972) for a discussion of the modern doctrine of fighting words, which focuses on the tendency of such words to cause an immediate breach of the peace. In recent cases, the Court seems to have abandoned its earlier suggestion in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), that the fighting words doctrine encompasses words that "by their very utterance inflict injury."
124. See Schenck v. United States, 249 U.S. 47, 52 (1919).
125. Because Mitchell did not phrase his racial comments in the form of a threat and his victim did not hear them, the threat exception itself is not relevant to Mitchell. For purposes of the discussion in the text, I assume the characterization of threats as unprotected conduct rather than protected speech. Thus, the issue is whether threats containing a particular content can be punished more severely than threats not containing that content. My acceptance of the unprotected status of threats depends on the application of a very narrow definition of what constitutes a threat. Brandenburg requires a narrow definition of "threat" - i.e., a definition with very particularized descriptions of specific action proposed by the speaker against an identified target - in order to protect abrasive political discourse that resembles an abstract threat and causes some listeners extreme distress. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 900 n.28, 902 (1982) (holding that statements such as "any 'uncle toms' who broke the boycott would 'have their necks broken' by their own people" is protected speech); Watts v. United States, 394 U.S. 705, 706, 708 (1969) (per curiam) (determining that the statement "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." is protected speech in the absence of proof that words were not political hyperbole but rather constituted an actual threat). Courts interpreting statutes criminalizing threats generally have recognized the First Amendment implications of such speech and have adopted a narrow construction of what constitutes a threat. See, e.g., United States v. Keiner, 534 F.2d 1020, 1027 (2d Cir. 1976) (stating that a threat must be "so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution" before such threat can be punished). Lower courts have also suggested that the First Amendment may require the government to prove that the speaker possessed the specific intent to carry out the threat. See United States v. Lampley, 573 F.2d 783, 787 (3d Cir. 1978); Kelner, 534 F.2d at 1027. But cf. United States v. Velasquez, 772 F.2d 1348, 1356-58 (7th Cir. 1985) (requiring only an intent to retaliate, not an intent to carry out a threat, under the Victim and Witness Protection Act of 1982).
126. R.A.V., 505 U.S. at 388.
127. See Watts, 394 U.S. at 707.
128. R.A.V., 505 U.S. at 388.
129. Congress specifically referred to these concerns when it initially passed the statute prohibiting threats against the President: "It is the first and highest duty of a Government to protect its governmental agencies, in the performance of their public services, from threats of violence which would tend to coerce them or restrain them in the performance of their duties." H.R. REP. NO. 64-652 (1916). The Supreme Court cited similar concerns when it rejected a First Amendment attack on the statute: "The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence." Watts, 394 U.S. at 707.
130. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (per curiam).
131. See id.
132. See United States v. O'Brien, 391 U.S. 367, 381-82 (1968).
133. See id. at 377-81.
134. Dean Alfange, Jr., Free Speech and Symbolic Conduct: The Draft-Card Burning Case, 1968 SUP. CT. REV. 1, 23.
135. See supra notes 91-106 and accompanying text.
136. See supra notes 74-127 and accompanying text.
137. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391-96 (1992).
138. For some examples of invalid governmental efforts, see Hess v. Indiana, 414 U.S. 105, 108-09 (1973) (per curiam); Gooding v. Wilson, 405 U.S. 518, 519-20 (1972); and Cohen v. California, 403 U.S. 15, 26 (1971). For examples of unsuccessful governmental efforts to suppress the speech or political activities of flag burners, see Texas v. Johnson, 491 U.S. 397, 420 (1989); of Nazis, see Coffin v. Smith, 578 F.2d 1197, 1207 (7th Cir. 1978); and of Communists, see Communist Party v. Whitcomb, 414 U.S. 441, 449-50 (1974).
139. See Wisconsin v. Mitchell, 508 U.S. 476, 484-85, 487 (1993). Justice Rehnquist stated 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." Id. at 487 (citation omitted).
140. See supra notes 74-127 and accompanying text.
141. See Mitchell, 508 U.S. at 487-88.
142. Id. at 487; see also R.A.V., 505 U.S. at 391-92 (explaining why the St. Paul ordinance constitutes impermissible content discrimination).
143. See Mitchell, 508 U.S. at 487 (discussing 42 U.S.C. § 2000e-2(a)(1) (1994)).
144. See id. at 487-88.
145. See id. at 487; R.A.V., 505 U.S. at 389-90.
146. R.A.V., 505 U.S. at 389 (citations omitted).
147. Mitchell, 508 U.S. at 487.
148. See supra notes 74-127 and accompanying text for a discussion of the flaws in the "one-act" argument.
149. Mitchell, 508 U.S. at 487 (citing Hishon v. King & Spalding, 467 U.S. 69, 78 (1984)).
150. Brief for Petitioner, supra note 59, at 29-38.
151. State v. Mitchell, 485 N.W.2d 807, 819 (Wis. 1992) (Bablitch, J., dissenting), rev'd, 508 U.S. 476 (1993).
152. See Brief Amicus Curiae of the American Civil Liberties Union in Support of Petitioner, Wisconsin v. Mitchell, 508 U.S. 476 (1993) (No. 92-515) [hereinafter National ACLU Brief]. The complexity of the issues in Mitchell is reflected in the fact that the ACLU was divided on the case. Although the National Office filed an amicus brief on behalf of the State, the Ohio affiliate filed an amicus brief on behalf of Mitchell. See Brief Amicus Curiae of the American Civil Liberties Union of Ohio in Support of Respondent, Wisconsin v. Mitchell, 508 U.S. 476 (1993) (No. 92-515); see also Mitchell, 508 U.S. at 478-79 (listing the amici).
153. National ACLU Brief, supra note 144, at 11.
154. See supra notes 29-34 and accompanying text.
155. See 42 U.S.C. § 2000e-2 (1994).
156. Mitchell, 485 N.W.2d at 816.
157. National ACLU Brief, supra note 144, at 11.
158. See supra notes 74-127 and accompanying text.
159. The ACLU has been involved in many of the most prominent free speech cases litigated in the Supreme Court during this century, almost always on behalf of the party seeking more protection of speech. For a representative sample of the most important free speech cases in which the ACLU has been involved, see the list of the ACLU's "75 Greatest Hits" on the ACLU web site. See ACLU, ACLU 75 Greatest Hits (visited Mar. 19, 1997) . Among others, this list includes Texas v. Johnson, 491 U.S. 397 (1989) (defending the First Amendment right to burn a flag in protest against the government); Cohen v. California, 403 U.S. 15 (1971) (defending the free speech right to wear a jacket inscribed with the phrase "Fuck the Draft"); Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam) (defending the free speech rights of a Ku Klux Klan member); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (defending the First Amendment protection of a newspaper advertisement on behalf of civil rights activists); Terminiello v. Chicago, 337 U.S. 1 (1949) (defending the First Amendment protection of racist speech); Stromberg v. California, 283 U.S. 359 (1931) (defending the free speech rights of Communists); Whitney v. California, 274 U.S. 357 (1927) (defending the free speech rights of Socialists), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam); and Gitlow v. New York, 268 U.S. 652 (1925) (defending the free speech rights of Socialists). The list also includes (inconsistently, in my view) Wisconsin v. Mitchell.
160. 42 U.S.C. § 2000e-2(a)(1). See Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993); Mitchell, 485 N.W.2d at 820 (Bablitch, J., dissenting); Brief of Petitioner, supra note 59, at 30; National ACLU Brief, supra note 144, at 9-10.
161. 42 U.S.C. § 2000e-2(a)(1). See Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993); Mitchell, 485 N.W.2d at 820 (Bablitch, J., dissenting); Brief of Petitioner, supra note 59, at 30; National ACLU Brief, supra note 144, at 9-10.
162. WIS. STAT. § 939.645(1)(b) (1989-90), reprinted in Mitchell, 508 U.S. at 480 n.1. The provision was amended in 1992; however, the amendment was not at issue in Mitchell. See Mitchell, 508 U.S. at 480 n.1.
163. See Mitchell, 508 U.S. at 487; Mitchell, 485 N.W.2d at 820 (Bablitch, J., dissenting); Brief of Petitioner, supra note 59, at 30; National ACLU Brief, supra note 144, at 9-10.
164. See Mitchell, 508 U.S. at 487; Mitchell, 485 N.W.2d at 820 (Bablitch, J., dissenting); Brief of Petitioner, supra note 59, at 30; National ACLU Brief, supra note 144, at 9-10.
165. See Mitchell, 485 N.W.2d at 820 (Bablitch, J., dissenting); Brief of Petitioner, supra note 59, at 30-33; National ACLU Brief, supra note 144, at 9-10.
166. See Mitchell, 485 N.W.2d at 820 (Bablitch, J., dissenting); Brief of Petitioner, supra note 59, at 30-33; National ACLU Brief, supra note 144, at 9-10.
167. Mitchell, 485 N.W.2d at 820 (Bablitch, J., dissenting).
168. See 42 U.S.C. § 2000e-2(a)(1).
169. See Mitchell, 508 U.S. at 487.
170. See Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984) (rejecting the claim that the First Amendment permits discrimination in private clubs that are also places of public accommodation); Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (rejecting the claim that the application of Title VII to law firm partnership decisions would infringe on the First Amendment association rights of law firm partners); Runyon v. McCrary, 427 U.S. 160, 176 (1976) (rejecting the claim that the First Amendment protects a private school's right to discriminate against minority students).
171. See Roberts, 468 U.S. at 615, 620; Hishon, 467 U.S. at 78; Runyon, 427 U.S. at 175-76.
172. See Mitchell, 508 U.S. at 485.
173. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) ("The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid." (citations omitted)).
174. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) ("The language of Title VII makes plain the purpose of Congress to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens.").
175. For example, to meet his initial burden of establishing a prima facie case of race discrimination under Title VII, the plaintiff must show "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that . . . the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Id. at 802.
176. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Supreme Court recognized that behavior including "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" is actionable under Title VII when "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." Id. at 65, 73 (alteration in original) (quoting 29 C.F.R. § 1604.11(a) (1985)). This decision created the "hostile environment" category of Title VII law.
177. Id. at 67 (alteration in original) (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).
178. Id. at 67 (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971)).
179. See 42 U.S.C. § 2000e-2(a)(1) (1994).
180. See R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) ("[S]exually derogatory 'fighting words,' among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices.").
181. State v. Mitchell, 485 N.W.2d 807, 818 (Wis. 1992) (Abrahamson, J., dissenting), rev'd, 508 U.S. 476 (1993).
182. Id. at 819 (Abrahamson, J. dissenting).
183. Id. (Abrahamson, J., dissenting).
184. Wisconsin v. Mitchell, 508 U.S. 476, 487-88 (1993) (citations omitted).
185. in Gitlow v. New York, 268 U.S. 652 (1925), the Court upheld a syndicalism conviction based on the general advocacy of revolution by a member of the Socialist party, despite the fact that the statute did not require that the defendant's acts create a danger of any actual illegal activity to be liable. See id. at 654-55, 672. The Court upheld the legislature's determination that the statute should be applied to every instance of revolutionary speech because even general overtures of this sort carried the threat of massive harm. "A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration." Id. at 669.
186. The Gitlow Court explained: That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. Id.
187. See Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969) (per curiam).
188. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391, 392-93 (1992).
189. If the state cannot demonstrate that bias crimes cause specific, objective harm that is independent of the predicate crime, then the only logical inference from the enhancement is that the state is seeking to punish the hateful ideas of the perpetrator. This amounts to a content-based regulation of unpopular speech, which R.A.V. prohibits. See id. at 382.
190. Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993).
191. See id. (citing Brief of Petitioner, supra note 59, at 24-27, Brief for the United States as Amicus Curiae Supporting Petitioner at 13-15, Brief for the Lawyers' Committee for Civil Rights Under Law as Amicus Curiae at 18-22, National ACLU Brief, supra note 144, at 17-19, Brief of Amid Curiae the Anti-Defamation League et al. in Support of Petitioner at 9-10, and Brief for Members of Congress Charles E. Schumer et al. as Amici Curiae Supporting Petitioner at 8-9).
192. For a general discussion of these concepts and their application to the Court's problematic attempts to justify the death penalty (which share some characteristics with the Court's strained efforts to justify the Wisconsin enhancement scheme), see Gey, supra note 101, at 102-30.
193. See Mitchell, 508 U.S. at 488.
194. The best explanation of this principle can be found in the Court's recent flag-burning decisions. See United States v. Eichman, 496 U.S. 310, 315-19 (1990) (holding the Flag Protection Act, which prohibits a person from knowingly mutilating the American flag, unconstitutional); Texas v. Johnson, 491 U.S. 397, 399, 410-18 (1989) (protecting respondent's right to burn an American flag during a political protest).
195. See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969) (per curiam) (holding Ohio's Criminal Syndicalism Act unconstitutional, both facially and as applied to a Ku Klux Klan member's racist speech).
196. See Gregory v. City of Chicago, 394 U.S. 111, 112 (1969); Cox v. Louisiana, 379 U.S. 536, 550-51 (1965); Edwards v. South Carolina, 372 U.S. 229, 236 (1963).
197. See Johnson, 491 U.S. at 408.
198. See id. at 409.
199. Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
200. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 391-93 (1992); Hess v. Indiana, 414 U.S. 105, 107-09 (1973) (per curiam); Brandenburg, 395 U.S. at 447-49; Terminiello, 337 U.S. at 4-6; Herndon v. Lowry, 301 U.S. 242, 260-61 (1937).
201. Johnson, 491 U.S. at 408 (footnote omitted).
202. See Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993).
203. See Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.").
204. See R.A.V., 505 U.S. at 391-93.
205. See State v. Mitchell, 485 N.W.2d 807, 819 (Wis. 1992) (Abrahamson, J., dissenting), rev'd, 508 U.S. 476 (1993).
206. Id. (Abrahamson, J., dissenting); see id. at 820 (Bablitch, J., dissenting) ("The statute does not impede or punish the right of persons to have bigoted thoughts or to express themselves in a bigoted fashion . . . ."); Brief of Petitioner, supra note 59, at 36-38; National ACLU Brief, supra note 144, at 15-17.
207. Id. (Abrahamson, J., dissenting); see id. at 820 (Bablitch, J., dissenting) ("The statute does not impede or punish the right of persons to have bigoted thoughts or to express themselves in a bigoted fashion . . . ."); Brief of Petitioner, supra note 59, at 36-38; National ACLU Brief, supra note 144, at 15-17.
208. I say "potentially" suffered because there is no evidence in the case concerning any emotional harm Mitchell's victim suffered as a result of his beating. The argument discussed in the text is based on a series of presumptions about emotional injuries any hypothetical victim of a bias crime would suffer.
209. Mitchell, 485 N.W.2d at 818 (Abrahamson, J., dissenting).
210. See Brandenburg v. Ohio, 395 U.S. 444, 445-49 (1969) (per curiam).
211. The State inadvertently even makes this point in its brief. While discussing the effects on victims of bias-motivated crimes, the State notes that "[w]hen discrimination crimes occur, members of the targeted group feel a loss of security. Importantly, this damage to the targeted group exists regardless whether the offender intended to send any message through his or her criminal act." Brief of Petitioner, supra note 59, at 25 (emphasis added). This point suggests that the Wisconsin statute is severely underinclusive. The real source of the trauma on which the State justifies the statute is not the biased motivation of perpetrators like Mitchell but rather the existence of racial and other group divisions in society. These divisions are manifested by crimes committed by members of some groups against members of other groups. The simple existence of intergroup crimes, "regardless whether the offender intended to send any message through his or her criminal act," is the real problem. This problem could presumably only be addressed - that is, the trauma that such crimes create could only be effectively ameliorated - by a statute enhancing the penalties of all criminal acts committed by members of one group against members of another. By singling out only those intergroup crimes in which the offender has expressed his or her bias, the State seemingly has done precisely what the Court said in R.A.V. it should not do: The State is "displaying the [government's] special hostility towards the particular biases thus singled out." R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992).
212. There are exceptions to this rule, evidenced by the very different attitude the courts have taken toward the regulation of disruptive speech in the public schools. An increasing number of school officials, using arguments similar to the emotional trauma and potential violence arguments relied upon by the State in Mitchell, are attempting to reduce racial tension through enforced silence on symbolic advocacy relating to racial matters. See, e.g., Katherine Bishop, Schools Order Students to Dress for Safety's Sake, N.Y. TIMES, Jan. 22, 1992, at A18 (reporting that the Oakland school system imposed a dress code, based on school safety concerns, banning various clothing (including racially derogatory t-shirts) despite student concerns that the rule would apply to Malcolm X shirts); Diane Jennings, Tyler High School Bans Racially Oriented Clothes, DALLAS MORNING NEWS, Feb. 24, 1994, at 28A (reporting that a school banned racially oriented clothing, including both Confederate flag and Malcolm X shirts, after several racial incidents); Mike Smith, Banner Combines Confederate Flag, Colors of Black Liberation, ATLANTA CONST., Apr. 22, 1994, at A4 (reporting that the wearing of t-shirts featuring the Confederate battle flag design but with the colors of the Black Liberation flag prompted a school to "ban the wearing or displaying of any symbol that depicts heritage or race"). Based on existing case law relating to school administrators, courts will almost certainly uphold those bans if challenged. The same case law, however, offers cautionary lessons about how governmental authorities can punish trivial incidents when given relatively unfettered authority to determine when speech is disruptive, emotionally or otherwise. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (upholding the sanctioning of a student for giving, at an assembly, a mildly scurrilous speech that school officials considered disruptive); Jeglin v. San Jacinto Unified Sch. Dist., 827 F. Supp. 1459, 1462 (C.D. Cal. 1993) (determining that a school dress code barring students from wearing clothing with professional sports team insignia violated free speech rights after finding that school officials failed to show such clothing indicated gang membership and potentially would cause disruption); Pyle v. South Hadley Sch. Comm., 824 F. Supp. 7, 9, 11 (D. Mass. 1993) (denying a motion for preliminary injunction against a school's policy of prohibiting "vulgar" t-shirts with printed statements such as "Coed Naked Band; Do It To The Rhythm" and "See Dick Drink. See Dick Drive. See Dick Die. Don't Be A Dick.", relying on, among other things, the school officials' desire to "limit clothing with sexually provocative slogans . . . in order to protect students and enhance the educational environment"); Broussard v. School Bd., 801 F. Supp. 1526, 1534 (E.D. Va. 1992) (upholding a school's one-day suspension of a student for wearing a t-shirt with the slogan "Drugs Suck!" and finding that the word "suck" has a sexual connotation, which underlay school officials' belief that the shirt would cause disruption),
213. There are exceptions to this rule, evidenced by the very different attitude the courts have taken toward the regulation of disruptive speech in the public schools. An increasing number of school officials, using arguments similar to the emotional trauma and potential violence arguments relied upon by the State in Mitchell, are attempting to reduce racial tension through enforced silence on symbolic advocacy relating to racial matters. See, e.g., Katherine Bishop, Schools Order Students to Dress for Safety's Sake, N.Y. TIMES, Jan. 22, 1992, at A18 (reporting that the Oakland school system imposed a dress code, based on school safety concerns, banning various clothing (including racially derogatory t-shirts) despite student concerns that the rule would apply to Malcolm X shirts); Diane Jennings, Tyler High School Bans Racially Oriented Clothes, DALLAS MORNING NEWS, Feb. 24, 1994, at 28A (reporting that a school banned racially oriented clothing, including both Confederate flag and Malcolm X shirts, after several racial incidents); Mike Smith, Banner Combines Confederate Flag, Colors of Black Liberation, ATLANTA CONST., Apr. 22, 1994, at A4 (reporting that the wearing of t-shirts featuring the Confederate battle flag design but with the colors of the Black Liberation flag prompted a school to "ban the wearing or displaying of any symbol that depicts heritage or race"). Based on existing case law relating to school administrators, courts will almost certainly uphold those bans if challenged. The same case law, however, offers cautionary lessons about how governmental authorities can punish trivial incidents when given relatively unfettered authority to determine when speech is disruptive, emotionally or otherwise. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (upholding the sanctioning of a student for giving, at an assembly, a mildly scurrilous speech that school officials considered disruptive); Jeglin v. San Jacinto Unified Sch. Dist., 827 F. Supp. 1459, 1462 (C.D. Cal. 1993) (determining that a school dress code barring students from wearing clothing with professional sports team insignia violated free speech rights after finding that school officials failed to show such clothing indicated gang membership and potentially would cause disruption); Pyle v. South Hadley Sch. Comm., 824 F. Supp. 7, 9, 11 (D. Mass. 1993) (denying a motion for preliminary injunction against a school's policy of prohibiting "vulgar" t-shirts with printed statements such as "Coed Naked Band; Do It To The Rhythm" and "See Dick Drink. See Dick Drive. See Dick Die. Don't Be A Dick.", relying on, among other things, the school officials' desire to "limit clothing with sexually provocative slogans . . . in order to protect students and enhance the educational environment"); Broussard v. School Bd., 801 F. Supp. 1526, 1534 (E.D. Va. 1992) (upholding a school's one-day suspension of a student for wearing a t-shirt with the slogan "Drugs Suck!" and finding that the word "suck" has a sexual connotation, which underlay school officials' belief that the shirt would cause disruption),
214. There are exceptions to this rule, evidenced by the very different attitude the courts have taken toward the regulation of disruptive speech in the public schools. An increasing number of school officials, using arguments similar to the emotional trauma and potential violence arguments relied upon by the State in Mitchell, are attempting to reduce racial tension through enforced silence on symbolic advocacy relating to racial matters. See, e.g., Katherine Bishop, Schools Order Students to Dress for Safety's Sake, N.Y. TIMES, Jan. 22, 1992, at A18 (reporting that the Oakland school system imposed a dress code, based on school safety concerns, banning various clothing (including racially derogatory t-shirts) despite student concerns that the rule would apply to Malcolm X shirts); Diane Jennings, Tyler High School Bans Racially Oriented Clothes, DALLAS MORNING NEWS, Feb. 24, 1994, at 28A (reporting that a school banned racially oriented clothing, including both Confederate flag and Malcolm X shirts, after several racial incidents); Mike Smith, Banner Combines Confederate Flag, Colors of Black Liberation, ATLANTA CONST., Apr. 22, 1994, at A4 (reporting that the wearing of t-shirts featuring the Confederate battle flag design but with the colors of the Black Liberation flag prompted a school to "ban the wearing or displaying of any symbol that depicts heritage or race"). Based on existing case law relating to school administrators, courts will almost certainly uphold those bans if challenged. The same case law, however, offers cautionary lessons about how governmental authorities can punish trivial incidents when given relatively unfettered authority to determine when speech is disruptive, emotionally or otherwise. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (upholding the sanctioning of a student for giving, at an assembly, a mildly scurrilous speech that school officials considered disruptive); Jeglin v. San Jacinto Unified Sch. Dist., 827 F. Supp. 1459, 1462 (C.D. Cal. 1993) (determining that a school dress code barring students from wearing clothing with professional sports team insignia violated free speech rights after finding that school officials failed to show such clothing indicated gang membership and potentially would cause disruption); Pyle v. South Hadley Sch. Comm., 824 F. Supp. 7, 9, 11 (D. Mass. 1993) (denying a motion for preliminary injunction against a school's policy of prohibiting "vulgar" t-shirts with printed statements such as "Coed Naked Band; Do It To The Rhythm" and "See Dick Drink. See Dick Drive. See Dick Die. Don't Be A Dick.", relying on, among other things, the school officials' desire to "limit clothing with sexually provocative slogans . . . in order to protect students and enhance the educational environment"); Broussard v. School Bd., 801 F. Supp. 1526, 1534 (E.D. Va. 1992) (upholding a school's one-day suspension of a student for wearing a t-shirt with the slogan "Drugs Suck!" and finding that the word "suck" has a sexual connotation, which underlay school officials' belief that the shirt would cause disruption),
215. See Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). Many practical and conceptual problems would also accompany an expansion of civil remedies for emotional reactions to speech. For a good discussion of the reasons for the Court's unwillingness to expand redress for the emotional harms resulting from offensive speech directed at racial, sexual, and ethnic groups, see David Goldberger, Sources of Judicial Reluctance to Use Psychic Harm as a Basis for Suppressing Racist, Sexist and Ethnically Offensive Speech, 56 BROOK. L. REV. 1165 (1991).
216. See Wisconsin v. Mitchell, 508 U.S. 476, 484-85 (1993).
217. See id. at 487.
218. See infra note 238 and accompanying text.
219. For a description and defense of the Court's categorization approach to the First Amendment, see Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265 (1981).
220. Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 NW. U. L. REV. 343, 377 (1991).
221. Id. at 378 (footnote omitted).
222. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (defining fighting words as words that "by their utterance inflict injury or tend to incite an immediate breach of the peace"). In later cases, the Supreme Court has focused exclusively on the breach of the peace portion of the definition. See supra note 115.
223. See Morton J. Horwitz, The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 32, 114-15 (1993).
224. Id. at 115 (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)).
225. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 437; Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2357 (1989).
226. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 437; Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2357 (1989).
227. See Lawrence, supra note 211, at 452-53; Matsuda, supra note 211, at 2355-57.
228. See Richard Delgado & David Yun, "The Speech We Hate": First Amendment Totalism, the ACLU, and the Principle of Dialogic Politics, 27 ARIZ. ST. L.J. 1281, 1282 (1995) (juxtaposing the authors' support for hate speech regulation with the "tendency to light upon a single solution to a complex problem" and other variations of "unitary or essentialist thinking that we find prevalent in First Amendment absolutist circles"). Charles Lawrence observes: [I]f the Sullivan rule [protecting political criticism from civil libel claims] protects erroneous speech because of an ultimate concern for the discovery of truth, then the rule's application to racial epithets must be based on an acceptance of the possible 'truth' of racism, a position which, happily, most first amendment absolutists are reluctant to embrace. Lawrence, supra note 211, at 463 n.119; see Matsuda, supra note 211, at 2321, 2323 ("[T]his article rejects an absolutist first amendment position. It calls for movement of the societal response to racist speech from the public realm. . . . [It] calls for doctrinal change, and concludes that an absolutist first amendment response to hate speech has the effect of perpetuating racism." (footnotes omitted)); Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV. 255, 258-59, 262, 311-12 (1992) (calling for a "New Deal with respect to speech," which would substantially revise the principles defining modern First Amendment "absolutism"; among other things, this "New Deal" would permit the regulation of hate speech unless it is "actually intended or received as a contribution to thought about a public matter," as opposed to "simple epithets, showing visceral contempt").
229. See Richard Delgado & David Yun, "The Speech We Hate": First Amendment Totalism, the ACLU, and the Principle of Dialogic Politics, 27 ARIZ. ST. L.J. 1281, 1282 (1995) (juxtaposing the authors' support for hate speech regulation with the "tendency to light upon a single solution to a complex problem" and other variations of "unitary or essentialist thinking that we find prevalent in First Amendment absolutist circles"). Charles Lawrence observes: [I]f the Sullivan rule [protecting political criticism from civil libel claims] protects erroneous speech because of an ultimate concern for the discovery of truth, then the rule's application to racial epithets must be based on an acceptance of the possible 'truth' of racism, a position which, happily, most first amendment absolutists are reluctant to embrace. Lawrence, supra note 211, at 463 n.119; see Matsuda, supra note 211, at 2321, 2323 ("[T]his article rejects an absolutist first amendment position. It calls for movement of the societal response to racist speech from the public realm. . . . [It] calls for doctrinal change, and concludes that an absolutist first amendment response to hate speech has the effect of perpetuating racism." (footnotes omitted)); Cass R. Sunstein, Free Speech Now, 59 U. CHI. L. REV. 255, 258-59, 262, 311-12 (1992) (calling for a "New Deal with respect to speech," which would substantially revise the principles defining modern First Amendment "absolutism"; among other things, this "New Deal" would permit the regulation of hate speech unless it is "actually intended or received as a contribution to thought about a public matter," as opposed to "simple epithets, showing visceral contempt").
230. See United States v. Eichman, 496 U.S. 310, 318-19 (1990) (flag-burning); Texas v. Johnson, 491 U.S. 397, 409 (1989) (same); Cohen v. California, 403 U.S. 15, 26 (1971) (offensive jacket patches).
231. Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
232. Kenneth L. Karst, Boundaries and Reasons: Freedom of Expression and the Subordination of Groups, 1990 U. ILL. L. REV. 95, 142 n.194.
233. The university administration recently attempted to bar Muhammad from giving a speech to the student body at York College in Queens, New York. See Pam Belluck, Appearance by Farrakhan Aide Roils a CUNY Campus, N.Y. TIMES, Nov. 7, 1995, at B6. Howard University denied an application for a speech by Muhammad after two previous speeches garnered criticism for their anti-Semitic content. See Steven A. Holmes, Struggling Through Crises at Howard University, N.Y. TIMES, Dec. 14, 1994, at A1. The government of Canada took even stronger measures to prevent Mr. Muhammad from speaking. After a black student group invited Muhammad to speak at the University of Toronto, the government declared Muhammad inadmissible to Canada "because they had 'reason to believe he would engage in criminal activities' by violating hate-crime provisions in the Criminal Code of Canada. " Clyde H. Farnsworth, Canada Bars Speech by Ex-Aide of Farrakhan, N.Y. TIMES, May 1, 1994, at 10 (quoting Canadian immigration officials).
234. The university administration recently attempted to bar Muhammad from giving a speech to the student body at York College in Queens, New York. See Pam Belluck, Appearance by Farrakhan Aide Roils a CUNY Campus, N.Y. TIMES, Nov. 7, 1995, at B6. Howard University denied an application for a speech by Muhammad after two previous speeches garnered criticism for their anti-Semitic content. See Steven A. Holmes, Struggling Through Crises at Howard University, N.Y. TIMES, Dec. 14, 1994, at A1. The government of Canada took even stronger measures to prevent Mr. Muhammad from speaking. After a black student group invited Muhammad to speak at the University of Toronto, the government declared Muhammad inadmissible to Canada "because they had 'reason to believe he would engage in criminal activities' by violating hate-crime provisions in the Criminal Code of Canada. " Clyde H. Farnsworth, Canada Bars Speech by Ex-Aide of Farrakhan, N.Y. TIMES, May 1, 1994, at 10 (quoting Canadian immigration officials).
235. The university administration recently attempted to bar Muhammad from giving a speech to the student body at York College in Queens, New York. See Pam Belluck, Appearance by Farrakhan Aide Roils a CUNY Campus, N.Y. TIMES, Nov. 7, 1995, at B6. Howard University denied an application for a speech by Muhammad after two previous speeches garnered criticism for their anti-Semitic content. See Steven A. Holmes, Struggling Through Crises at Howard University, N.Y. TIMES, Dec. 14, 1994, at A1. The government of Canada took even stronger measures to prevent Mr. Muhammad from speaking. After a black student group invited Muhammad to speak at the University of Toronto, the government declared Muhammad inadmissible to Canada "because they had 'reason to believe he would engage in criminal activities' by violating hate-crime provisions in the Criminal Code of Canada. " Clyde H. Farnsworth, Canada Bars Speech by Ex-Aide of Farrakhan, N.Y. TIMES, May 1, 1994, at 10 (quoting Canadian immigration officials).
236. See, e.g., Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 WM. & MARY L. REV. 267 (1991) (arguing that regulating racist speech interferes with the goals of democratic self-governance, which is a value that freedom of expression is designed to protect); Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal?, 1990 DUKE L.J. 484 (asserting that regulating racist speech ultimately undermines the goal of racial equality because robust free speech protection is necessary to fight racial discrimination).
237. See, e.g., Robert C. Post, Racist Speech, Democracy, and the First Amendment, 32 WM. & MARY L. REV. 267 (1991) (arguing that regulating racist speech interferes with the goals of democratic self-governance, which is a value that freedom of expression is designed to protect); Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal?, 1990 DUKE L.J. 484 (asserting that regulating racist speech ultimately undermines the goal of racial equality because robust free speech protection is necessary to fight racial discrimination).
238. See supra notes 137-172 and accompanying text.
239. See supra note 211 and accompanying text.
240. See supra notes 191-201 and accompanying text.
241. See supra note 211 and accompanying text.
242. See, e.g., WIS. STAT. ANN. § 939.645 (West 1996).
243. See supra note 211 and accompanying text.
244. 343 U.S. 250, 266 (1952).
245. See Collin v. Smith, 578 F.2d 1197, 1204 (7th Cir. 1978) ("It may be questioned . . . whether the approach sanctioned implicitly in Beauharnais would pass constitutional muster today."); see also Calvin R. Massey, Hate Speech, Cultural Diversity, and the Foundational Paradigms of Free Expression, 40 UCLA L. REV. 103, 141-43 (1992) (stating that Beauharnais "has been eclipsed as good law").
246. See Kenneth Lasson, Group Libel Versus Free Speech: When Big Brother Should Butt In, 23 DUQ. L. REV. 77, 111-14 (1984); Lawrence, supra note 211, at 464 n.120; Matsuda, supra note 211, at 2349 nn.149-50; Note, A Communitarian Defense of Group Libel Laws, 101 HARV. L. REV. 682 (1988).
247. See Kenneth Lasson, Group Libel Versus Free Speech: When Big Brother Should Butt In, 23 DUQ. L. REV. 77, 111-14 (1984); Lawrence, supra note 211, at 464 n.120; Matsuda, supra note 211, at 2349 nn.149-50; Note, A Communitarian Defense of Group Libel Laws, 101 HARV. L. REV. 682 (1988).
248. Beauharnais, 343 U.S. at 263.
249. See id. at 251, 263, 266-67.
250. See id. at 302 (Jackson, J., dissenting) ("[I]n this case no actual violence and no specific injury was charged or proved. The leaflet was simply held punishable as criminal libel per se irrespective of its actual or probable consequences.").
251. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam) (stating the principle that regulation of speech is permitted only if that speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action").
252. See Garrison v. Louisiana, 379 U.S. 64, 72-73 (1964).
253. See especially Justice Sanford's paean to legislative supremacy in the regulation of speech in Gitlow v. New York, 268 U.S. 652, 666-71 (1925).
254. Horwitz, supra note 209, at 115.
255. Lawrence, supra note 211, at 437.
256. Id.
257. See Matsuda, supra note 211, at 2357, 2360. Matsuda's proposal targets speech that communicates a message of racial inferiority, see id. at 2357, but her proposal easily accommodates a Wisconsin-type regulation of racially biased criminal motivations whose only "message" is communicated symbolically through the criminal act itself. Although she implicitly concurs with the operation of statutes such as Wisconsin's, Matsuda may not concur with the actual result in Mitchell, which involved the prosecution of a black man for his racially biased selection of a white victim. Under her proposal, "[e]xpressions of hatred, revulsion, and anger directed against historically dominant-group members by subordinated-group members are not criminalized by the definition of racist hate messages used here." Id. at 2361. Whether this same "victim's privilege" would apply to a bias crime enhancement scheme is unclear. Although if the purpose of the enhancement scheme is to redress the historical subordination of some groups by others, then, like Matsuda's hate-speech proposal, the enhancement scheme probably also should not apply to a subordinated group member's commission of a crime against a dominant group member if it could be argued that the perpetrator selected his victim as part of the perpetrator's "struggle for self-identity in response to racism." Id. at 2362.
258. See Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987); Cass R. Sunstein, Words, Conduct, Caste, 60 U. CHI. L. REV. 795 (1993).
259. See Owen M. Fiss, Why the State?, 100 HARV. L. REV. 781 (1987); Cass R. Sunstein, Words, Conduct, Caste, 60 U. CHI. L. REV. 795 (1993).
260. Matsuda, supra note 211, at 2352.
261. The marketplace-of-ideas theory is set forth in Justice Holmes's dissenting opinion in Abrams v. United States, 250 U.S. 616 (1919). "[T]he ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . ." Id. at 630 (Holmes, J., dissenting).
262. See, e.g., Delgado, supra note 206, at 385 (asserting that racist speech conflicts with marketplace theories because it reduces the effectiveness of the minority group's speech in rebuttal); Fiss, supra note 238, at 788 ("The state is to act as the corrective for the market. The state must put on the agenda issues that are systematically ignored and slighted and allow us to hear voices and viewpoints that would otherwise be silenced or muffled.").
263. Lawrence, supra note 211, at 467.
264. Section 1 of the Thirteenth Amendment states: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States." U.S. CONST. amend. XIII, § 1. The Fourteenth Amendment provides: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1, cl. 2. The discussion in the text focuses on variations of the claim that hate speech violates the Equal Protection Clause of the Fourteenth Amendment. The Thirteenth Amendment variation of this argument is similar to the Fourteenth Amendment claim in that both claims revolve around the notion that biased speech effectively subjugates the targets of the speech. The gist of the Thirteenth Amendment version of this argument is summarized in Akhil Amar's criticism of the Supreme Court for failing to use the Thirteenth Amendment to uphold the St. Paul ordinance challenged in R.A.V. According to Amar, the ordinance struck down in R.A.V. prevented an "[i]ntentional trapping - temporary involuntary servitude, a sliver of slavery," which amounted more to conduct than speech. Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124, 158 (1992). Thus phrased, the Thirteenth Amendment version of the competing-amendments argument seems to be based more on a conduct/speech distinction rather than a claim that speech is a dispensable value when it interferes with equality. To the extent that this is true, the Thirteenth Amendment argument in support of the Wisconsin enhancement statute is subject to the criticisms of the discrimination claim discussed in Section II.C.1. See supra notes 137-172 and accompanying text.
265. See Delgado, supra note 206, at 345-48.
266. Id. at 383.
267. See id. at 383-86.
268. Id. at 385-86 (footnote omitted).
269. Sunstein, supra note 238, at 797.
270. Id.
271. See id. at 798-802.
272. Id. at 801.
273. id. at 802.
274. Id. at 797. The notion that speech that does not communicate ideas should not receive First Amendment protection is a common feature of both feminist and conservative proposals to regulate or suppress sexually explicit materials. For an analysis of the many problems inherent in the effort to protect only communication that expresses "ideas," as opposed to passion or other nonintellectual matters, see Steven G. Gey, The Apologetics of Suppression: The Regulation of Pornography as Act and Idea, 86 MICH. L. REV. 1564, 1586-96 (1988).
275. See Fiss, supra note 238, at 784-87.
276. I have criticized elsewhere the concept of guided dialogue, which is a central theme of the civic republican theory of democracy. See Steven G. Gey, The Unfortunate Revival of Civic Republicanism, 141 U. PA. L. REV. 801 (1993).
277. Although this argument would support the constitutionality of the Wisconsin statute on its face, it probably would not support the prosecution of Mitchell, who is black, for committing a biased crime against his victim, who is white. Consistent application of the antisubordination orientation of this argument would require the incorporation of some version of what Mari Matsuda calls the "victim's privilege." See supra note 237. Prosecution of bias crimes committed by members of the majority would stand on stronger constitutional ground than prosecution of bias crimes committed by minorities.
278. See Whitney v. California, 274 U.S. 357, 371-72 (1927), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam); Gitlow v. New York, 268 U.S. 652, 666-71 (1925).
279. See Gitlow, 268 U.S. at 667-71.
280. Id. at 668.
281. Id. (quoting Toledo Newspaper Co. v. United States, 247 U.S. 402, 419 (1918)).
282. Delgado, supra note 206, at 386 n.350.
283. 250 U.S. 616 (1919).
284. Abrams was a Russian Jew who immigrated to the United States when he was twenty-two years old. Like many of his fellow immigrants, Abrams found work in the sweatshops of New York City and political solace in the vibrant anarchist community that the sweatshops produced. See. RICHARD POLENBERG, FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND FREE SPEECH 4-27, 118-25 (1987). Abrams and others who lived similar lives could no more ignore their cultural ostracism, their experience of the Diaspora, or their radical politics than others could forget their race or gender.
285. Gitlow, 268 U.S. at 669.
286. See Joseph P. Fried, Sheik and 9 Followers Guilty of a Conspiracy of Terrorism, N.Y. TIMES, Oct. 2, 1995, at A1 (discussing seditious conspiracy conviction of Sheik Abdel Rahman and nine other defendants for "plotting assassinations and bombings as part of a Jihad, or Holy War, to undermine United States support for Egypt, whose secular government is anathema to Mr. Abdel Rahman and his followers, and for Israel, a sworn enemy of many Islamic radicals").
287. See Larry Rohter, Doctor Is Slain During Protest Over Abortions, N.Y. TIMES, Mar. 11, 1993, at A1.
288. See Gitlow, 268 U.S. at 673 (Holmes, J., dissenting).
289. State v. Mitchell, 485 N.W.2d 807, 819 (Wis. 1992) (Abrahamson, J., dissenting), rev'd 508 U.S. 476 (1993).
290. JOHN RAWLS, A THEORY OF JUSTICE 364 & n.19 (1971) (adopting H.A. Bedau's definition).
291. See id. at 365 ("[O]ne invokes the commonly shared conception of justice that underlies the political order.").
292. M.K. GANDHI, NON-VIOLENT RESISTANCE 67 (1961).
293. See infra notes 275-279 and accompanying text.
294. See supra notes 29-42 and accompanying text. Although King's speeches occurred before the Court summarized the standard for political speech protection in Brandenburg, the key distinction between abstract advocacy and incitement to illegal action had been a central part of free speech jurisprudence before Brandenburg. See Yates v. United States, 354 U.S. 298 (1957) ("The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court."), overruled on other grounds by Burks v. United States, 437 U.S. 1 (1978).
295. See NAACP v. Alabama, 357 U.S. 449, 462-63 (1958) (holding that the First Amendment prohibits Alabama from compelling disclosure of NAACP's Alabama membership list because threat of economic reprisal and physical coercion would undermine members' rights to free association).
296. See TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS 1954-63, at 351 (1988).
297. See id. at 548-49.
298. The United States Supreme Court upheld the application of contempt sanctions to the marchers. See Walker v. City of Birmingham, 388 U.S. 307, 315 (1967) (upholding criminal contempt sanctions against civil rights demonstrators for violating a temporary restraining order issued against the Easter march instead of seeking to have the injunction overturned). Two years later, the Court unanimously overturned a conviction based on the impermissibly broad language of the Birmingham, Alabama parade ordinance on which the injunction was based. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 155-59 (1969).
299. See Martin L. King, Jr., Letter from Birmingham Jail, in WHY WE CAN'T WAIT 77, 84 (1964) ("[O]ne has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that 'an unjust law is no law at all.'").
300. King was not unfamiliar with such behavior by southern judges, of course. For example, King received a jail sentence of forty-five days for his Albany parade ordinance conviction even though, as historian Taylor Branch noted, "[f]or such a minor misdemeanor by a gainfully employed person, Judge Durden might ordinarily have dismissed the case or suspended sentence." BRANCH, supra note 275, at 600.
301. Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1, 8.
302. See Richenberg v. Perry, 97 F.3d 256, 263 (8th Cir. 1996); Thomasson v. Perry, 80 F.3d 915, 931 (4th Cir. 1996), aff'g 895 F. Supp. 820, 824 (E.D. Va. 1995), cert. denied, 117 S. Ct. 358 (1996) (both the district court and court of appeals opinions rely on Mitchell); Hrynda v. United States, 933 F. Supp. 1047, 1053 (M.D. Fla. 1996); Watson v. Perry, 918 F. Supp. 1403, 1418 (W.D. Wash. 1996); Selland v. Perry, 905 F. Supp. 260, 263-64 (D. Md. 1995); Philips v. Perry, 883 F. Supp. 539, 547 (W.D. Wash. 1995), aff'd, 106 F.3d 1420 (9th Cir. 1997).
303. Selland, 905 F. Supp. at 264.
304. See, e.g., Thomasson, 80 F.3d at 931 ("A declaration of homosexuality, 'like most admissions, [is] made in speech . . . but that does not mean that the first amendment precludes the use of the admission as evidence of the facts admitted.'" (alteration in original) (quoting Pruitt v. Cheney, 963 F.2d 1160, 1164 (9th Cir. 1991))).
305. See Huffman & Wright Logging Co. v. Wade, 857 P.2d 101 (Or. 1993).
306. See id. at 105.
307. See id.
308. See id.
309. See id.
310. See id.
311. See id. at 106.
312. See id.
313. Id. at 112 (quoting Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993)) (citation omitted).
314. Kaarin L. Axelsen, Note, Problems of Punitive Damages for Political Protest and Civil Disobedience, 25 ENVTL. L. 495, 509 (1995).
315. See Huffman & Wright Logging, 857 P.2d at 112.
316. See Mitchell, 508 U.S. at 487-88 (recognizing the Wisconsin legislature's interest in redressing special harms caused by bias-motivated crimes).
317. See id.
318. Huffman & Wright Logging, 857 P.2d at 111.
319. Cf. Mitchell, 508 U.S. at 486 (citing with approval Barclay v. Florida, 463 U.S. 939 (1983) (plurality opinion), in which the Court affirmed the trial judge's sentence that took into account petitioner's membership in the Black Liberation Army).
320. National ACLU Brief, supra note 144, at 20.
321. Id. at 21 n.20.
322. Id. at 17.
323. See United States v. Dunnaway, 88 F.3d 617, 619 (8th Cir. 1996) (upholding the introduction of evidence that the defendant "did not like black people, commonly used racial epithets when referring to blacks, and believed interracial relationships were wrong"); United States v. Stewart, 65 F.3d 918, 930 (11th Cir. 1995) (upholding the introduction of evidence of and prosecutorial comments about the defendants' racial animus and membership in the Ku Klux Klan), cert. denied, 116 S. Ct. 958 (1996); O'Neal v. Delo, 44 F.3d 655, 661 (8th Cir.) (upholding the introduction of evidence that the defendant belonged to Aryan Brotherhood and/or the Aryan Nations Church of Jesus Christ Christians because "testimony regarding the association of O'Neal and his witnesses with these organizations was probative with respect to both his motive and the credibility of his witnesses"), cert. denied, 116 S. Ct. 129 (1995); People v. Baker, 25 Cal. Rptr. 2d 372, 380 & n.9 (Ct. App. 1993) (permitting as proof of the defendant's "motive or mental state" the introduction of a "white pride" tattoo that the defendant had obtained after the incident for which he was charged), review granted, 870 P.2d 385 (Cal. 1994), and review dismissed, 902 P.2d 224 (Cal. 1995). The attitude of most courts dealing with these issues is summarized by the Eighth Circuit panel in Dunnaway: "Because [the defendant] was charged with a racially motivated crime, evidence of his racist views, behavior, and speech were relevant and admissible to show discriminatory purpose and intent, an element of the charges against him. Thus, admission of this evidence was not erroneous, much less plainly erroneous." Dunnaway, 88 F.3d at 619 (citations omitted). Having helped open Pandora's box, the ACLU must now deal with the consequences.
324. See supra notes 281-283 and accompanying text.
325. See West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).