Bad Thoughts

by Jeffrey Rosen | July 5, 1993

In every Supreme Court term, there is at least one case that tests, and vividly exposes, the character of the justices. Last year it was abortion; this year it is hate crimes. The outcome of Wisconsin v. Mitchell--which upheld a law that requires harsher sentences for criminals who "intentionally select" their victims "because of race, religion" and the like--was never really in doubt. But instead of being sensitive to the intricate First Amendment concerns that the case raised, William Rehnquist dismissed them contemptuously. His unanimous opinion reads like a lazy summary of the government's brief: polemical, self-assured and profoundly superficial. The fact that none of the justices wrote a separate concurrence suggests that none of them is concerned about policing the boundary between speech and conduct with analytical precision.

Civil libertarians are familiar with the powerful policy arguments against hate crimes laws, which increase the punishment for behavior that is already criminal. But the constitutional arguments are far more complicated. A less cavalier opinion could have endorsed something like the ACLU's position: carefully drafted sentence enhancement laws, like Wisconsin's, may be constitutional. But sloppily drafted laws, like the one proposed by Representative Charles Schumer, which would ratchet up the sentences for crimes "in which the defendant's conduct was motivated by hatred, bias or prejudice," are unconstitutional. (See "Crime and Punishment," TNR, October 12, 1992.) A comparison of the Wisconsin law, which the ACLU supports, and the Schumer bill, which it properly opposes, shows the importance of the distinctions that Rehnquist ignored.

The most important distinction is that the Wisconsin law does not formally require judges in hate crimes cases to determine whether the offender was motivated by bigoted thoughts. The Wisconsin law's language is identical to the wording of many federal civil rights statutes, such as the section of the U.S. Code that imposes penalties on any person who, by "threat of force," interferes with the constitutional rights of another person "because of his race, color, religion or national origin." And you can be prosecuted under the Wisconsin law--and the civil rights laws--even if you never utter a hateful word. One way of proving that a criminal selected his victims on the basis of race, for example, would be to introduce evidence that he attacked black people on different occasions and in different cities.

In the Mitchell case, the defendant's racial attitudes are hard to discern and are ultimately irrelevant. A group of black teenagers in Kenosha, Wisconsin, were discussing Mississippi Burning in 1989. "Do you all feel hyped up to get some white people?" asked Todd Mitchell, 19. "You want to **** somebody up? There goes a white boy; go get him." As Mitchell stood in a parking lot, eight of his friends ran across the street to beat and rob Gregory Riddick, a 14-year-old white boy. Aside from the words he used to point out Riddick--and Rehnquist failed to note this--Mitchell did not participate in the beating. Rehnquist also ignored testimony that Mitchell yelled, "You should leave that boy alone," as soon as his friends began to charge; and that he then called the police and said he was sorry for what he had done. But under the Wisconsin law, it does not matter whether Mitchell was motivated by racism, or by peer pressure, or by a desire to steal Riddick's tennis shoes. Whatever his motive, he is liable for selecting his victim on the basis of race.

Rehnquist's opinion clashes, in important ways, with the 1992 cross burning case, RAV v. St. Paul. By ignoring the key language in RAV--"special hostility toward the particular biases thus singled out ... is precisely what the First Amendment forbids"--Rehnquist misses the most convincing way of distinguishing the two cases. Unlike the Schumer bill, and unlike most hate speech laws, the Wisconsin scheme is not, on its face, an attempt to suppress politically incorrect ideas. As Clarence Thomas emphasized at the oral argument, you can be convicted under the Wisconsin law for intraracial as well as interracial violence. A black separatist who assaults a group of black attorneys for selling out would be no less liable than a white Klansman who assaults an African American out of racism.

Nadine Strossen of the ACLU points to a final difference between the Wisconsin law and the Schumer bill. In Wisconsin the defendant's discriminatory intentions must be proved beyond a reasonable doubt. The Schumer bill, by contrast, contains no such requirement; and evidence of the defendant's bigoted thoughts--such as the fact that a neighbor heard he had a copy of Mein Kampf on the bookshelf--can be admitted even if it is only tangentially related to the underlying crime. For the same reason, the ACLU has properly opposed Florida's law providing for an enhanced penalty if the crime "evidences prejudice."

If Rehnquist had focused narrowly on the formal neutrality of the Wisconsin law, in short, he could have upheld it in a way that distinguished it from laws that explicitly target bigotry. Instead, he was expansive. He invited legislatures to punish what he called "good" motivations more severely than "bad" ones; and in the process, he exacerbated First Amendment concerns rather than minimizing them. As Susan Gellman of the Ohio Public Defender's Office notes, if a state can increase the punishment for motivations it finds especially abhorrent, such as racism, then it can also decrease the punishment for motivations it finds less abhorrent, such as homophobia or opposition to abortion.

Rehnquist dismissed the First Amendment concerns in two laconic paragraphs. Treason, he noted, can depend on proving the defendant's bad motive; and in a 1947 case, the Court allowed the government to introduce evidence of conversations that had taken place long before an indictment for treason because they cast light on the defendant's Nazi sympathies. Rehnquist's enthusiasm for a cold war treason opinion is startlingly insensitive. It slights what the Court had called, in an earlier case, "the concern uppermost in the framers' minds, that mere mental attitudes or expression should not be treason." And by going out of his way to compare hate crimes to treason, Rehnquist wrongly encourages the focus on politically unpopular views.

In the same spirit, Rehnquist belittles the real danger that the Wisconsin law--which increases the punishment for virtually every offense in the Wisconsin criminal code, from trespassing to adultery--can be applied in unconstitutional ways. "It is difficult," he writes sarcastically, "to conceive of a situation" where a minor misdemeanor, such as negligent operation of a motor vehicle, would be racially motivated. But other unconstitutional applications are not so difficult to conceive. The Wisconsin law threatens up to five years in jail for anyone who has sex with a married person "because of race," for example, bringing a ban on adultery perilously close to a ban on miscegenation. It creates a brand-new crime of group libel by increasing the punishment for race-based defamation. It would also require stiffer penalties for pro-choice protesters who trespass on the front lawn of a church "because of religion." Even the ACLU emphasizes that these cases raise "serious constitutional problems."

Rehnquist also fails to acknowledge the powerful incentives to turn hate crimes trials into ideological witch-hunts, even when the language of the statutes is formally neutral. In Mitchell's case, the only evidence of his racial attitudes was the discussion about Mississippi Burning, which was not strictly necessary to prove that he selected his victim on the basis of race. But in other cases, defendants are encouraged to argue that their apparently racist conduct was not motivated by bigotry. A white man indicted under Ohio's similarly worded hate crimes law, for example, tried to prove he was not a bigot by emphasizing his "associations" with black friends and neighbors. This prompted the following remarkable cross-examination: "And you lived next door to [Mrs. Ware, a 65-year-old black neighbor] and you don't even know her first name?" No. "Never had dinner with her?" No. "Never invited her to a picnic at your house?" No. "I want you to name just one [black] person who was a really good friend of yours ..."

By slighting the danger that technically constitutional laws can be applied in unconstitutional ways, Rehnquist encourages legislatures to be similarly insensitive. As a result, the Anti Defamation League, whose model hate crimes statute has been followed in twenty-six states, no longer has an incentive to distinguish constitutional laws from clearly unconstitutional ones. "Before the Mitchell decision, we were planning to encourage states to follow the Wisconsin language. But the decision is so broad that I'm not sure we have to anymore," says Michael Lieberman, associate director of the ADL.

Why was no justice moved to write separately in this case? The charitable explanation is that all nine of them were so afraid of antagonizing their impatient and vindictive chief that they swallowed their doubts. The less charitable explanation is that no one cared enough about the delicate First Amendment issues to notice the distinctions that Rehnquist disparaged.

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