³resentment² among defined protected groups, and under-inclusive,
because the government must not selectively penalize fighting words
directed at some groups while not prosecuting those addressed to
others, which is where the problem lies in the logic of the Mitchell
decision. Though Rehnquist argued that Wisconsin v. Mitchell did not
overturn R.A.V. v. St. Paul, ³If a hate speech law that enumerated
some categories is invalid because, in Justice Antonin Scalia¹s
opinion in St. Paul, ?government may not regulate use based on
hostility- or favoritism- toward the underlying message involved,¹ how
can a hate crime law be upheld that increases the penalty for crimes
motivated by some hates but not those motivated by other hates?² In
other words, if the St. Paul statute is determined to be
under-inclusive, how can we include every conceivable hate within the
context of any statute.
³To be consistent, legislature¹s must now include other categories,
including sex, physical characteristics, age, party affiliation,
anti-Americanism or position on abortion.²(Feingeld, 16)
More interesting (and Constitutional) than the majority opinion in
R.A.V. v. St. Paul, is the concurring opinion written by Justice
White, with whom Justice Blackmun and Justice O¹Connor join.
White writes, ³Although the ordinance as construed reaches egories of
speech that are constitutionally unprotected, it also criminalizes a
substantial amount of expression that- however repugnant- is shielded
by the First Admendment… Our fighting words cases have made clear,
however, that such generalized reactions are not sufficient to strip
expression of its constitutional protection. The mere fact that
expressive activity causes hurt feelings, offense, or resentment does
not render the expression unprotected… The ordinance is therefore
fatally overbroad and invalid on its face…²
Rehnquist argues that whereas the ³ordinance struck down in R.A.V.
was explicitly directed at expression, the statute in this case is
aimed at conduct unprotected by the First Amendment². Nevertheless,
had Mitchell not stated, ³There goes a white boy; go get him², his
sentence would not have been enhanced, he would have instead received
the maximum sentence of two years in jail for his crime, instead of
four. Therefore, the Wisconsin statute does not only punish conduct,
as Justice Rehnquist suggests, but speech as well.
The Wisconsin v. Mitchell decision cannot simply be viewed as one
that does harm to racists and homophobics. There are much broader
costs to society than the quieted opinions of an ignorant few.
First, laws which chill thought or limit expression ³detract from the
goal of insuring the availability of the broadest possible range of
ideas and expressions in the marketplace of ideas.² Second, the
Mitchell ruling not only affects eveyone¹s free speech rights with a
general constriction of the interpretation of the First Amendment, but
the ruling makes way for further constrictions. Third, penalty
enhancement laws place the legislature in the position of judging and
determining the quality of ideas, and assumes that the government has
the capacity to make such judgements. Fourth, without the expression
of opinions generally deemd unacceptable by society, society tends to
forget why those opinions were deemed unacceptable in the first place.
(More specifically, nothing makes a skinhead seem more stupid than
allowing him to voice his opinion under the scrutiny of a national
television audience.) Finally, when society allows the free
expression of all ideas, regardless of its disdain for those ideas, it
is a sign of strength. So when a society uses all its power to
suppress ideas, it is certainly a sign of that society¹s weakness
(Gellman, (381-385).
The United States Supreme Court¹s unanimous decision in Wisconsin v.
Mitchell is incorrect for a number of reasons. Constitutionally, the
decision fails to comply with the freedom of speech guaranteed in the
First Amendment, and the guarantee to all citizens of equal protection
under the laws, listed in the Fourteenth Amendment. The decision also
arguably overturns R.A.V. v. St. Paul, and suggests that the Court may
be leaning towards a new ?fighting words doctrine¹, where unpopular
speech equals unprotected speech. The decision also damages societ as
a whole in ways that are simply immeasureable in their size, such as
those listed in the preceding paragraph. Wisconsin v. Mitchell is a
terribly flawed Supreme Court decision, which one can only hope will
be overturned in the very near future.
³The freedom to differ is not limited to things that do not matter
much. That would be a mere sahdow of a freedom. The test of its
substance is the right to differ as to things that touch the heart of
the existing order.
³If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion or other matters of
opinion…² -Justice Jackson in W.V. Board of Education. v.
Barnette
Bibliography
Cacas, Samuel. ³Hate Crime Sentences Can Now Be Enhanced Under A New
Federal Law.² Human Rights 22 (1995): 32-33
Feingold, Stanley. ³Hate Crime Legislation Muzzles Free Speech.² The
National Law Journal 15 (July 1, 1993): 6, 16
Gellman, Susan. ³Sticks And Stones.² UCLA Law Review 39 (December,
1991): 333-396
Chaplinsky v. New Hampshire
R.A.V. v. St. Paul
Texas v. Johnson
U.S. v. O¹Brien
Wisconsin v. Mitchell
Wooley v. Maynard
W.V. State Board of Education v. Barnette