Supreme Court Upholds Wisconsin Hate-Crime Law

Move rejects claim that stiffer sentences violate freedom of expression

IN 1989, a group of young black men was lounging around an apartment building in Kenosha, Wis. "Mississippi Burning," a film portraying violence by Southern whites against blacks, was fresh on their minds. Suddenly, a young white boy walked by and Todd Mitchell, a leader of the black group, shouted: "There goes a white boy. Go get him!"

Get him they did. The group beat the youngster within an inch of his life. Mr. Mitchell was convicted of aggravated battery, which normally carries a maximum sentence of two years in jail. But his sentence was increased to four years under Wisconsin's new hate-crime statute.

Mitchell's lawyers appealed the stiffer sentence and Wisconsin's Supreme Court agreed that the sentence violated his constitutional right to freedom of expression. But on Friday, the United States Supreme Court unanimously decided to reinstate Mitchell's tougher sentence and, in the process, to uphold the constitutionality of Wisconsin's hate-crimes law.

"It's an important decision," says Geoffrey Stone, a University of Chicago constitutional scholar. "It authorizes states to adopt legislation of this sort, which has been previously thought to be constitutionally suspect."

More than 20 states - including California, Florida, and Vermont - have laws providing enhanced penalties for hate crimes. Other states, including Louisiana and Mississippi, have debated similar statutes. Last year, federal hate-crime legislation passed the House of Representatives but was defeated in the Senate.

Defense attorneys charge that the laws infringe upon First Amendment rights of criminal defendants. But others say they are necessary to combat a wave of bias-related attacks - 4,558 in 1991 alone, according to the Federal Bureau of Investigation.

"These crimes have a ripple effect on society," says Steve Freeman, legal-affairs director for New York's Anti-Defamation League. "We've seen that in Crown Heights and Bensonhurst in New York, in L.A., Miami, and Boston."

While legal scholars said they were not surprised by the high court's ruling in Wisconsin v. Mitchell, just a year ago the court had overturned another hate-crimes law. In R.A.V. v. St. Paul, justices ruled 5 to 4 that an ordinance banning cross-burnings and other displays of hatred was unconstitutional because it singled out some viewpoints for suppression.

The justices held that the difference between the two cases was that beating someone is not an expression of free speech. "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," wrote Chief Justice William Rehnquist.

The justices rejected the argument that Wisconsin's hate-crime law could have a "chilling effect" on free speech by those who worry about receiving a stiffer sentence for any crime they might later commit. "This is simply too speculative a hypothesis to support Mitchell's over-breadth claim," Justice Rehnquist wrote.

Court-watchers point out that the justices could hardly have ruled otherwise. If the court had overturned Wisconsin's law, scholars say, the justices, in effect, would have invalidated three decades' worth of federal legislation against discrimination in housing, the workplace, and public spaces. Like the hate-crime law, Title VII and other anti-discrimination statutes punish actions motivated by racial, ethnic, or religious bias.

"The argument against hate crimes is that they're thought crimes, but discrimination is a thought crime, too," says David Cole, a Georgetown University law professor. "We have long understood that people are free to speak in a hateful way, but when they harm another person based on that speech, they can be punished."

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