Mitchell vs. Wisconsin


On June 11, 1993, the United State Supreme Court upheld
Wisconsin¹s penalty enhancement law, which imposes harsher
sentences on criminals who ³intentionally select the person
against whom the committed..because of the race,
religion, color, disability, sexual orientation, national
origin or ancestry of that person.² Chief Justice Rehnquist
deliverd the opinion of the unanimous Court. This paper
argues against the decision, and will attempt to prove the
unconstitutionality of such penalty enhancement laws.
On the evening of October 7, 1989, Mitchell and a group of
young black men attacked and severely beat a lone white
boy. The group had just finished watching the film
³Mississippi Burning², in which a young black boy was,
while praying, beaten by a white man. After the film, the
group moved outside and Mitchell asked if they felt ³hyped
up to move on some white people². When the white boy
approached Mitchell said, ³You all want to fuck somebody
up? There goes a white boy, Go get him.² The boy was left
unconscious, and remained in a coma for four days. Mitchell
was convicted of aggravated battery, which carries a two
year maximum sentence. The Wisconsin jury, however, found
that because Mitchell selected his victim based on race,
the penalty enhancement law allowed Mitchell to be
sentenced to up to seven years. The jury sentenced Mitchell
to four years, twice the maximum for the crime he committed
without the penalty enhancement law.
The U.S. Supreme Court¹s ruling was faulty, and defied a
number of precedents. The Wisconsin law is
unconstitutional, and is essentially unenforceable. This
paper primarily focuses on the constitutional arguments
against Chief Justice Rehnquist¹s decision and the statute
itself, but will also consider the practical implications
of the Wisconsin law, as well as a similar law passed under
the new federal crime bill (Cacas, 32). The Wisconsin law
and the new federal law are based on a model created by the
Anti- Defemation League in response to a rising tide of
hate-related violent crimes (Cacas, 33). Figures released
by the Federal Bureau of Investigation show that 7,684 hate
crimes motivated by race, religion, ethnicity, and sexual
orientation were reported in 1993, up from 6,623 the
previous year. Of those crimes in 1993, 62 percent were
racially motivated (Cacas, 32). Certainly, this is a
problem the nation must address. Unfortunately, the Supreme
Court of the United States and both the Wisconsin and
federal governments have chosen to address this problem in
a way that is grossly unconstitutional.
³Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise therof; or
abridging the freedom of speech, or of the press; or the
right of the people to peaceably assemble, and to petition
the government for a redress of grievances.²
The most obvious arguments against the Mitchell decision
are those dealing with the First Amendment. In fact, the
Wisconsin Supreme Court ruled that the state statute was
unconstitutional in their decision, which the U.S. Supreme
Court overruled. The Wisconsim Supreme Court argued that
the Wisconsin penalty enhancement statute, ³violates the
First Amendment directly by punishing what the legislature
has deemed offensive thought.² The Wisconsin Court also
rejected the state¹s argument ³that the statute punishes
only the Oconduct¹ of intentional selection of a victim².
The Court¹s contention was that ³the statute punishes the
Obecause of¹ aspect of the defendant¹s selection, the
reason the defendant selected the victim, the motive behind
the selection.² The law is in fact a direct violation of
the First Amendment, according to the Wisconsin Supreme
Court, which said ³the Wisconsin legislature cannot
criminalize bigoted thought with which it disagrees.²
³If there is a bedrock principal underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable². The Supreme Court was
heard to utter such noble phrases as recently as 1989, in
Texas v. Johnson. Unfortunately these idealistic principles
seem to have been abandoned during Wisconsin v. Mitchell.
Clearly, Mitchell¹s act of assaulting another human is a
punishable crime, and no one could logiacally argue that
the First Amendment protects this clearly criminal action.
However, the state¹s power to punish the action does not
remove the constitutional barrier to punishing the
criminal¹s thoughts (Cacas, 337). The First Amendment has
generally been interpreted to protect the thoughts, as well
as the speech, of an individual (Cacas, 338). According to
the Court¹s majority opinion in Wooley v. Maynard, a 1977
case, ³At the heart of the First Amendment is the notion
that an individual should be free to believe as he will,
and that in a free society one¹s beliefs should be shaped
by his mind and his conscience rather than coerced by the
Another componet of Mitchell¹s First Amendment argument
against the penalty enhancement law, was that the statute
was overbroad, and might have a ³chilling effect² on free
speech. Mitchell contended that with such a penalty
enhancement law, many citizens would be hesitant to
experess their unpopular opinions, for fear that those
opinions would be used against them in the future.
In Abrams v. United States, Justice Holmes, in his dissent,
argued that ³laws which limit or chill thought and
expression detract from the goal of insuring the
availability of the broadest possible range of ideas and
expression in the marketplace of ideas².
Chief Justice Rehnquist, however, rejects the notion that
the Wisconsin statute could have a chilling effect on
speech. ³We must conjure up a vision of a Wisconsin citizen
suppressing his unpopular bigoted opinions for fear that if
he later commits an offense covered by the statute, these
opinions will be offered at trial to establish that he
selected his victim on account of the victim¹s protected
status, thus qualifying him for penalty enhancement... This
is too speculative a hypothesis to support Mitchell¹s
overbreadth claim.² However, a legitimate argument
certainly exists that the logical next step would be to
examine the conversations, correspondence, and other
expressions of the accused person to determine whether a
hate motive prompted the crime, if a criminal¹s sentence is
being considered for penalty enhancement (Feingold, 16).
How can Rehnquist argue that this will not cause a chilling
Rehnquist denies this chilling effect exists under penalty
enhancement laws such as Wisconsin¹s, but one must consider
how Rehnquist would rule if the penalty enhancement did not
cover something, such as racism, that he finds personally
repugnant. The recent attempt at ³political correctness²
differs only slightly from the Red Scare of the 1950¹s. The
anti-communists claimed and the politically correct
ideologists claim to have good intentions (The Road to
Hell...).Unfortunately, these two groups infringed upon the
rights of the minority in their quest to mold the htoughts
of others into ideas similar to their own.
How would Rehnquist rule if the statute called for enhanced
penalties for persons convicted of crimes while expressing
Communist ideas? Or what if the criminal was Mormon, and
the majority found those religious views morally repugnant?
Could Rehnquist also justify suppressing the religious
freedoms found in the First Amendment, as well as its free
speech clause, if they were found to be as reprehensible as
racism by the general public? The United States Supreme
Court is granting selective protection of First Amendment
rights, in Mitchell v. Wisoconsin, and is yielding to
political pressure to suppress bigoted views.
Mitchell¹s second constitutional argument is that the
statute violates the Foruteenth Amendment as well as the
First. The Foruteenth Amendment contains the ³equal
protection clause², which states that no state shall ³deny
to any person within its jurisdiction the equal protection
of the laws². The Wisconsin statute punishes offenders more
seriously because of the views they express, and punishes
more leniently those whose motives are of an ³acceptable²
nature (Gellman, 379). This seems to be a clear violation
of the Fourteenth Amendment, but again, Rehnquist (and the
entire Supreme Court), sees things quite diiferently.
Rehnquist argues that, ³The First Amendment... does not
prohibit the evidentiary use of speech to establish the
elements of a crime and to prove motive or intent². Motive,
however, is used to establish guilt or innocence, and is
not in itself a crime. Undeniably, however, those that
express bigoted views are punished more severely than those
who do not.
Rehnquist, however, never specifically mentions the
Fourteenth Amendmeent because they were not developed by
Mitchell and fell outside of the question on which the
Court granted certiorari.
Rehnquist also argues that ³Traditionally, sentencing
judges have considered a wide variety of factors in
addition to evidence bearing on guilt in determining what
sentences to impose on a convicted defendant... The
defendant¹s motive for committing the offense is one
important factor.²
This is a compelling argument, but I would argue this
practice is itself of questionable constitutionality, in
that it allows the sentencing judge to exercise excessive
discretionary judgement based on his view as to what
constitutes acceptable and unacceptable motives. However,
even if this practice is held to be constitutional,
surpassing the existing maximum penalty with an additional
statute that specifically lists bigotry as an unacceptable
motive, certainly qualifies as being the same as imposing
an additional penalty for unpopular beliefs.
To illuatrate the dangers inherent in laws such as
Wisconsin¹s penalty enhancement statute, we need only
examine Texas v. Johnson, a 1989 Supreme Court case. The
state¹s flag desecration statute was ruled unconstitutional
by the Court. However, using Rehnquists logic in Mitchell,
the state of Texas could have easily achieved their goal by
prohibiting public burning, a legitimate exercise of their
police power, and enhancing the penalty for those convicted
of violating the statute if they did so in in opposition to
the government (Gellman, 380). Therefore, penalty
enhancement laws such as Wisconsin¹s give the government
too much power to excessively punish what it deems
Clearly, when the legislature enacts penalty enhancement
laws with the intent of suppressing unpopular ideas, the
state violates both the First and the Fouteenth Amendments.
The state interferes with an individual¹s right to free
speech by suppressing ideas not supported by the
government, and fails to provide equal protection to all
its citizens when it punishes an act more severely when
committed by an individual whose opinions are not shared by
the state. Mitchell v. Wisconsin is a clear example of
majority will infringing upon minority rights, and proves
that the BIll of Rights works well, except in the instances
when it is most needed.
There are probably more Supreme Court cases that favor
Wisconsin¹s position than there are that support Mitchell¹s
argument. However, many of these rulings are of
questionable constitutionality themselves. Two cases
arguably support Rehnquist¹s position, but the Supreme
Court has traditionally ignored the first of rulings, and
the second has been misinterpreted.
In Chaplinsky v. New Hampshire, Justice Murphy wrote what
has become known as the ³fighting words doctrine².
Chaplinsky was a Jehova¹s Witness in a predominantly
Catholic town. He distributed leaflets to a hostile crowd,
and was refused protection by the town¹s marshall.
Chaplinsky then referred to the marshall as a ³god damn
racketeer and a damn fascist², for which he was convicted
of breaching the peace. Justice Murphy¹s opinion argued
that certain speech, including that which is lewd, obscene,
profane, or insulting, is not covered by the First
According to Murphy, ³There are certain well-defined and
narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any
Constitutional problem. These include the lewd and obscene,
the profane, the libelous, and the insulting or Ofighting¹
words- those which by their very utterance inflict injury
or tend to incite an immediate breach of the peace.²
Under Chaplinky, bigoted remarks would probably qualify as
Ofighting¹ words. However, the courts have generally been
reluctant to uphold the Ofighting¹words doctrine, and the
Supreme Court has never done so (Gellman 369,370). Even if
today¹s Court were to consider Chaplinsky valid, Mitchell¹s
comments, though racial in nature, would be difficult to
classify as bigoted. In fact, Constitutional considerations
aside, the biggest problem with penalty enhancement laws
such as Wisconsin¹s, is classifying and prosecuting an
incident as hate-motivated (Cacas, 33). At what point can
we be certain the victim was selected based on race,
religion, or sexual orientation? Another more pressing
problem is police unwillingness to investigate a crime as
hate-motivated (Cacas, 33). Certainly, the difficulting in
determining whether a crime is hate-motivated is one of the
reasons police are hesitant to pursue crimes as
hate-motivated, and illustrates yet another reason why such
statutes should not exist. Consider the following FBI
guidelines to help determine whether a crime is
hate-motivated (Cacas, 33):
1. a substantial portion of the community where the crime
occurred perceives that the incident was bias-motivated;
2. the suspect was previously involved in a hate crime; and
3. the incident coincided with a holiday relating to, or a
date of particular significance to, a racial, religious, or
ethnic/national origin group These guidelines certainly
fail to offer any exact or definitive system with which to
classify crimes as hate-motivated.
Another case which is cometimes cited as a precedent to
support rulings such as Wisconsin v. Mitchell, is U.S. v.
O¹Brien. O¹Brien had burnt his draft card to protest the
draft and the Vietnam War, despite a law specifically
forbidding the burning of draft cards.
The Supreme Court ruled that the statute did not
differentiate between public and private draft card
burnings, and was therefore not a government attempt to
regulate symbolic speech, but a constitutionality
legitimate police power. The Court ruled that there is no
absolutist protection for symbolic speech.
Under O¹Brien, the government may regulate conduct which
incidentally infringes upon First Amendment rights, as long
as the government interest is ³unrelated to the
suppression² of belief or expression. However, when states
enact laws such as the Wisconsin statute, the state is not
regulating conduct despite its expressive elements, but is
penalizing conduct because of its expressive elements
(Gellman, 376). Therefore, a more accurate interpretation
of O¹Brien, would be that it actually supports an argument
against the Court¹s ruling in WIsconsin, and is not a
precedent to support Rehnquist¹s decision.
Possibly more important, and certainly more recent, is the
precedent established in R.A.V. v. St. Paul, a 1992 case.
This case involved a juvenille who was convicted under the
St. Paul Bias-Motivated Crime Ordinance for burning a cross
in the yard of a black family that lived across the street
from the petitioner. Justice Scalia delivered the opinion
of a unanimous Court, but the Court was divided in its
opinions for overturning the St. Paul statute.
Scalia argued that the city ordinance was overbroad,
because it punished nearly all controversial
characterizations likely to arouse 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, Ogovernment 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 Ofighting 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 

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

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

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