Wisconsin vs Mitchell case (1993) and R.A.V vs St Paul (1992)

The conflict between "free speech" and equality is a persistent one. The next two cases resolve thebalance in different ways, but they are generally thought not to conflict. How do you explain thedifferences between the next two cases?

E > @ ' 0 & app.perusall.com @ o |'I] + O Mi Inbox (3,884) - j265@umbc.edu - UMBC Mail P First Amendment: Cases, Controversies, and Contexts - POLI 433 First Amend... I pashboard Per'usau@ D POLI 433 First Amendment Freedoms | Page 92 A @ s & _L.O @y Options + W All comments ~ @ cethelp ~ | | judith Martinez ~ @ R.A.V. v. St. Paul 505 U.S. 377 (1992) SCALIA, ], DELIVERED THE OPINION OF THE COURT, IN WHICH REHNQUIST, C.J., AND KENNEDY, SOUTER, AND THOMAS, JJ., JOINED. WHITE, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH BLACKMUN AND O'CONNOR, JJ., JOINED, AND IN WHICH STEVENS, J., JOINED EXCEPT AS TO PART I-A. BLACKMUN J., FILED AN OPINION CONCURRING IN THE JUDGMENT. STEVENS, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN PART | OF WHICH WHITE AND BLACKMUN, J]., JOINED. JUSTICE SCALIA DELIVERED THE OPINION OF THE COURT. In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws, one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn,, Legis. Code 292.02 (1990), which provides: "Whoever places 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 commits disorderly conduct and shall be guilty of a misdemeanor." Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content based, and therefore facially invalid under the First Amendment. The trial court granted this motion, but the Minnesota Supreme Court reversed. That court rejected petitioner's overbreadth claim because, as construed in prior Minnesota cases, the modifying phrase "arouses anger, alarm or resentment in others" limited the reach of the ordinance to conduct that amounts to "fighting words," i.e., "conduct that itself inflicts injury or tends to incite immediate violence . .. ," and therefore the ordinance reached only expression "that the first amendment does not protect.\" The court also concluded that the ordinance was not impermissibly content based because, in its view, "the ordinance is a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against bias- motivated threats to public safety and order.\" We granted certiorari. In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota court. Accordingly, we accept the Minnesota Supreme Court's authoritative statement that the ordinance reaches only those expressions that constitute "fighting words" within the meaning of Chaplinsky. Petitioner and his amici urge us to modify the scope of the Chaplinsky formulation, thereby invalidating the ordinance as "substantially overbroad.\" We find it unnecessary to consider this issue. Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the "fighting words" doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. 66 9 n s A Robson 79 The First Amendment PerusaH D POLI 433 First Amendment Freedoms > o) % O Mi Inbox (3,884) - j265@umbc.edu - UMBC Mail & app.perusall.com M + O P First Amendment: Cases, Controversies, and Contexts - POLI 433 First Amend... Page 93 A G = .'k .*lf.o Ry Options ~ 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. From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.\" Chaplinsky. We have recognized that "the freedom of speech\" referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e.g, Roth v. United States (1957) (obscenity); Beauharnais v. Illinois (1952) (defamation); Chaplinsky v. New Hampshire ("fighting' words"). Our decisions since the 1960's have narrowed the scope of the traditional categorical exceptions for defamation, see New York Times Co. v. Sullivan (1964); Gertz v. Robert Welch, Inc. (1974) and for obscenity, see Miller v. California (1973), but a limited categorical approach has remained an important part of our First Amendment jurisprudence. We have sometimes said that these categories of expression are "not within the area of constitutionally protected speech,\" or that the "protection of the First Amendment does not extend" to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity "as not being speech at all." What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) - not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. * * * Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression, so that the government "may regulate [them] freely," post (White, ]., concurring in judgment). That would mean that a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well. It is not true that "fighting words" have at most a "de minimis" expressive content, or that their content is in all respects "worthless and undeserving of constitutional protection;\" sometimes they are quite expressive indeed. We have not said that they constitute "no part of the expression of ideas,\" but only that they constitute "no essential part of any exposition of ideas."\" Chaplinsky (emphasis added). The proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g, opposition to the city government) is commonplace and has found application in many contexts. 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. Similarly, we have upheld reasonable "time, place, or manner\" restrictions, but only if they are "justified without reference to the content of the regulated speech." Ward v. Rock Against Racism (1989); see also Clark v. Community for Creative Non-Violence (1984) (noting that the O'Brien test differs little from the standard applied to time, place, or manner restrictions). And just as the power to proscribe particular speech on the basis of a non-content element (e.g, noise) does not entail the power to proscribe the same speech on the basis of a content element, so also the power to proscribe it on the basis of one content element (e.g, obscenity) does not entail the power to proscribe it on the basis of other content elements. In other words, the exclusion of "fighting words" from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a "nonspeech\" element of communication. Fighting words are thus analogous to a noisy sound truck: each is, as Justice Frankfurter recognized, a "mode of speech,\" both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As B Dashboard W All comments ~ @ cethelp - () judith Martinez ~ 66 9 n s A PerusaH D POLI 433 First Amendment Freedoms > o) % O Mi Inbox (3,884) - j265@umbc.edu - UMBC Mail & app.perusall.com M + O P First Amendment: Cases, Controversies, and Contexts - POLI 433 First Amend... Page 94 A G = .'k .*lf.o Ry Options ~ with the sound truck, however, so also with fighting words: the government may not regulate use based on hostility - or favoritism - towards the underlying message expressed. The concurrences describe us as setting forth a new First Amendment principle that prohibition of constitutionally proscribable speech cannot be "underinclusiv[e]," post (White, ], concurring in judgment) - a First Amendment "absolutism\" whereby "[w]ithin a particular "proscribable' category of expression, . .. a government must either proscribe all speech or no speech at all," post (Stevens, J., concurring in judgment). That easy target is of the concurrences' own invention. In our view, the First Amendment imposes not an "underinclusiveness" limitation, but a "content discrimination\" limitation, upon a State's prohibition of proscribable speech. There is no problem whatever, for example, with a State's prohibiting obscenity (and other forms of proscribable expression) only in certain media or markets, for although that prohibition would be "underinclusive,\" it would not discriminate on the basis of content. Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute. It applies differently in the context of proscribable speech than in the area of fully protected speech. The rationale of the general prohibition, after all, is that content discrimination "raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace." But content discrimination among various instances of a class of proscribable speech often does not pose this threat. When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: a State might choose to prohibit only that obscenity which is the most patently offensive in its prurience - i.e,, that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. And the Federal Government can criminalize only those threats of violence that are directed against the President, see 18 U.S.C. 871 - since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President. See Watts v. United States (1969) (upholding the facial validity of 871 because of the "overwhelmin[g] interest in protecting the safety of [the] Chief Executive and in allowing him to perform his duties without interference from threats of physical violence"). But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities. And to take a final example (one mentioned by Justice Stevens, post), a State may choose to regulate price advertising in one industry, but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection is in its view greater there. But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion. Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular "secondary effects\" of the speech, so that the regulation is "justified without reference to the content of the ... speech." A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct, rather than speech. Thus, for example, sexually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices, 42 U.S.C. 2000e-2. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. * * * There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue), it may not even be necessary to identify any particular "neutral\" basis, so long as the nature of the content discrimination is such that there is no realistic possibility B Dashboard W All comments ~ @ cethelp - () judith Martinez ~ 66 9 n s A E > @ ' 0 & app.perusall.com @ o |'I] + O Mi Inbox (3,884) - j265@umbc.edu - UMBC Mail P First Amendment: Cases, Controversies, and Contexts - POLI 433 First Amend... I pashboard Perusall D POLI 433 First Amendment Freedoms | Page 100 A @ s & _L.O @y Options + W All comments ~ @ cethelp ~ | | judith Martinez ~ Wisconsin v. Mitchell v 508 U.S. 476 (1993) CHIEF JUSTICE REHNQUIST DELIVERED THE OPINION OF THE UNANIMOUS COURT. Respondent Todd Mitchell's sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim's race. The question presented in this case is whether this penalty enhancement is prohibited by the First and Fourteenth Amendments. We hold that it is not. D On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture "Mississippi Burning" in which a white man beat a young black boy who was DQ praying. The group moved outside and Mitchell asked them: "*Do you all feel hyped up to move on some white people?" Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing, As the boy walked by, Mitchell said: "You all want to fuck somebody up? There goes a white boy; go get him."" Mitchell counted to three and pointed in the f{ boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days. After a jury trial in the Circuit Court for Kenosha County, Mitchell was convicted of aggravated [g battery. Wis.Stat. 939.05 and 940.19(1m) (1989-1990). That offense ordinarily carries a maximum sentence of two years' imprisonment. But because the jury found that Mitchell had intentionally selected his victim because of the boy's race, the maximum sentence for Mitchell's offense was increased to seven years under 939.645. That provision enhances the maximum penalty for an offense whenever the defendant "[i]ntentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person. . . ." 939.645(1)(b). The Circuit Court sentenced Mitchell to four years' Q imprisonment for the aggravated battery. Mitchell unsuccessfully sought postconviction relief in the Circuit Court. Then he appealed his conviction and sentence, challenging the constitutionality of Wisconsin's penalty-enhancement provision on First Amendment grounds. The Wisconsin Court of Appeals rejected Mitchell's challenge, but the Wisconsin Supreme Court reversed. The Supreme Court held that the statute "violates the First Amendment directly by punishing what the legislature has deemed to be offensive 6 thought." It rejected the State's contention "that the statute punishes only the 'conduct' of intentional 99 selection of a victim." According to the court, "[t]he statute punishes the "because of" aspect of the defendant's selection, the reason the defendant selected the victim, the motive behind the selection.\" And under RA.V. v. St. Paul (1992), "the Wisconsin legislature cannot criminalize bigoted thought D with which it disagrees." The Supreme Court also held that the penalty-enhancement statute was unconstitutionally overbroad. It reasoned that, in order to prove that a defendant intentionally selected his victim because of the victim's protected status, the State would often have to introduce evidence of the defendant's prior speech, such as racial epithets he may have uttered before the commission of the offense. This evidentiary use of protected speech, the court thought, would have a "chilling effect\" on those who feared the possibility of prosecution for offenses subject to penalty enhancement. Finally, A | Robson 87 The First Amendment A E > @ ' 0 & app.perusall.com @ o |'I] + O Mi Inbox (3,884) - j265@umbc.edu - UMBC Mail P First Amendment: Cases, Controversies, and Contexts - POLI 433 First Amend... I pashboard Perusall D POLI 433 First Amendment Freedoms | Page 101 A @ s & _L.O @y Options + W All comments ~ @ cethelp ~ | | judith Martinez ~ the court distinguished antidiscrimination laws, which have long been held constitutional, on the =) ground that the Wisconsin statute punishes the "subjective mental process" of selecting a victim = because of his protected status, whereas antidiscrimination laws prohibit "objective acts of discriminatiol We granted certiorari because of the importance of the question presented and the existence of a conflict of authority among state high courts on the constitutionality of statutes similar to Wisconsin's penalty-enhancement provision. We reverse. Mitchell argues that we are bound by the Wisconsin Supreme Court's conclusion that the statute punishes bigoted thought, and not conduct. There is no doubt that we are bound by a state court's construction of a state statute. * * * But here the Wisconsin Supreme Court did not, strictly speaking, construe the Wisconsin statute in the sense of defining the meaning of a particular statutory word or phrase. Rather, it merely characterized the "practical effect\" of the statute for First Amendment purposes. This assessment does not bind us. Once any ambiguities as to the meaning of the statute are resolved, we may form our own judgment as to its operative effect. The State argues that the statute does not punish bigoted thought, as the Supreme Court of Wisconsin said, but instead punishes only conduct. While this argument is literally correct, it does not dispose of Mitchell's First Amendment challenge. To be sure, our cases reject 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." United States v. O'Brien (1968); accord, RA.V, Spence v. Washington. Thus, a physical assault is not, by any stretch of the imagination, expressive conduct protected by the First Amendment. But the fact remains that, under the Wisconsin statute, the same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status than if no such motive obtained. Thus, although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all. Because the only reason for the enhancement is the defendant's discriminatory motive for selecting his victim, Mitchell argues (and the Wisconsin Supreme Court held) that the statute violates the First Amendment by punishing offenders' bigoted beliefs. 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. Thus, in many States, the commission of a murder or other capital offense for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute. But it is equally true that a defendant's abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge. Dawson v. Delaware (1992). In Dawson, the State introduced evidence at a capital sentencing hearing that the defendant was a member of a white supremacist prison gang. Because "the evidence proved nothing more than [the defendant's] abstract beliefs," we held that its admission violated the defendant's First Amendment rights. In so holding, however, we emphasized that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." Thus, in Barclay v. Florida (1983) (plurality opinion), we allowed the sentencing judge to take into account the defendant's racial animus towards his victim. The evidence in that case showed that the defendant's membership in the Black Liberation Army and desire to provoke a "race war" were related to the murder of a white man for which he was convicted. Because "the elements of racial hatred in [the] murder" were relevant to several aggravating factors, we held that the trial judge permissibly took this evidence into account in sentencing the defendant to death. Mitchell suggests that Dawson and Barclay are inapposite because they did not involve application of a penalty-enhancement provision. But in Barclay we held that it was permissible for the sentencing court to consider the defendant's racial animus in determining whether he should be sentenced to death, surely the most severe "enhancement"\" of all. And the fact that the Wisconsin Legislature has decided, as a general matter, that bias-motivated offenses warrant greater maximum penalties across Perusall D POLI 433 First Amendment Freedoms > | ) % O Mi Inbox (3,884) - j265@umbc.edu - UMBC Mail & app.perusall.com G e P First Amendment: Cases, Controversies, and Contexts - POLI 433 First Amend... Page 102