Word Count: 3746
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 crime...is
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
Œconduct¹ of intentional selection of a victim². The
Court¹s
contention was that ³the statute punishes the Œbecause 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
state.²
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 effect?
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
unacceptable.
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 Amendment.
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
Œfighting¹ 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 Œfighting¹
words. However, the courts have generally been reluctant to uphold
the Œfighting¹words 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 underinclusive,
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, Œgovernment 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 Œfighting 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
Keywords:
word count june united state supreme court upheld wisconsin penalty enhancement which
imposes harsher sentences criminals intentionally select person against whom crime
committed because race religion color disability sexual orientation national origin
ancestry that person chief justice rehnquist deliverd opinion unanimous court this paper
argues against decision will attempt prove unconstitutionality such penalty enhancement
laws evening october mitchell group young black attacked severely beat lone white group
just finished watching film mississippi burning which young black while praying beaten
white after film group moved outside mitchell asked they felt hyped move some white
people when approached mitchell said want fuck somebody there goes left unconscious
remained coma four days convicted aggravated battery which carries year maximum
sentence wisconsin jury however found that because selected victim based race penalty
enhancement allowed sentenced seven years jury sentenced four years twice maximum
crime committed without supreme court ruling faulty defied number precedents
wisconsin unconstitutional essentially unenforceable this paper primarily focuses
constitutional arguments against chief justice rehnquist decision statute itself will also
consider practical implications well similar passed under federal crime bill cacas federal
based model created anti defemation league response rising tide hate related violent
crimes cacas figures released federal bureau investigation show that hate crimes
motivated race religion ethnicity sexual orientation were reported from previous year
those crimes percent were racially motivated cacas certainly this problem nation must
address unfortunately supreme united states both governments have chosen address
problem grossly unconstitutional congress shall make respecting establishment religion
prohibiting free exercise therof abridging freedom speech press right people peaceably
assemble petition government redress grievances most obvious arguments decision those
dealing with first amendment fact ruled state statute unconstitutional their overruled
wisconsim argued statute violates first amendment directly punishing what legislature
deemed offensive thought also rejected state argument punishes only conduct intentional
selection victim contention punishes because aspect defendant selection reason defendant
selected victim motive behind selection fact direct violation first amendment according
said legislature cannot criminalize bigoted thought with disagrees there bedrock principal
underlying government prohibit expression idea simply society finds idea itself offensive
disagreeable heard utter such noble phrases recently texas johnson unfortunately these
idealistic principles seem have been abandoned during clearly assaulting another human
punishable could logiacally argue protects clearly criminal action however power punish
action does remove constitutional barrier punishing criminal thoughts generally been
interpreted protect thoughts well speech individual according majority opinion wooley
maynard case heart notion individual should free believe will free society beliefs should
shaped mind conscience rather than coerced another componet argument overbroad might
have chilling effect speech contended with such many citizens would hesitant experess
their unpopular opinions fear those opinions would used them future abrams united states
justice holmes dissent argued laws limit chill thought expression detract from goal
insuring availability broadest possible range ideas expression marketplace ideas chief
rehnquist however rejects notion could chilling effect must conjure vision citizen
suppressing unpopular bigoted opinions fear later commits offense covered these offered
trial establish selected account protected status thus qualifying speculative hypothesis
support overbreadth claim legitimate argument certainly exists logical next step would
examine conversations correspondence other expressions accused person determine
whether hate motive prompted criminal sentence being considered feingold argue cause
chilling effect denies exists under laws must consider rule cover something racism finds
personally repugnant recent attempt political correctness differs only slightly from scare
anti communists claimed politically correct ideologists claim good intentions road hell
unfortunately these groups infringed upon rights minority their quest mold htoughts
others into ideas similar rule called enhanced penalties persons convicted while
expressing communist what mormon majority found religious views morally repugnant
could also justify suppressing religious freedoms found well clause they were
reprehensible racism general public states granting selective protection rights wisoconsin
yielding political pressure suppress bigoted views second constitutional violates
foruteenth foruteenth contains equal protection clause shall deny within jurisdiction equal
protection punishes offenders more seriously views they express more leniently whose
motives acceptable nature gellman seems clear violation fourteenth again entire sees
things quite diiferently argues does prohibit evidentiary establish elements prove motive
intent used establish guilt innocence itself undeniably express punished more severely
than never specifically mentions fourteenth amendmeent developed fell outside question
granted certiorari argues traditionally sentencing judges considered wide variety factors
addition evidence bearing guilt determining what sentences impose convicted defendant
committing offense important factor compelling argue practice questionable
constitutionality allows sentencing judge exercise excessive discretionary judgement
based view constitutes acceptable unacceptable motives even practice held surpassing
existing maximum additional specifically lists bigotry unacceptable certainly qualifies
being same imposing additional unpopular beliefs illuatrate dangers inherent need only
examine texas johnson case flag desecration ruled using rehnquists logic texas easily
achieved goal prohibiting public burning legitimate exercise police power enhancing
violating opposition government gellman therefore give much power excessively punish
deems unacceptable clearly when legislature enacts intent suppressing violates both
fouteenth amendments interferes individual right supported fails provide equal citizens
when severely committed whose shared clear example majority infringing upon minority
rights proves bill works except instances most needed there probably cases favor position
than support many rulings questionable constitutionality themselves cases arguably
support position traditionally ignored rulings second been misinterpreted chaplinsky
hampshire murphy wrote become known fighting words doctrine chaplinsky jehova
witness predominantly catholic town distributed leaflets hostile crowd refused town
marshall chaplinsky then referred marshall damn racketeer damn fascist breaching peace
murphy opinion argued certain including lewd obscene profane insulting covered
according murphy certain defined narrowly limited classes prevention punishment never
raise problem include lewd obscene profane libelous insulting fighting words very
utterance inflict injury tend incite immediate breach peace under chaplinky remarks
probably qualify fighting words courts generally reluctant uphold doctrine never done
gellman even today consider valid comments though racial nature difficult classify fact
considerations aside biggest classifying prosecuting incident motivated point certain
sexual orientation another pressing police unwillingness investigate difficulting
determining whether reasons police hesitant pursue illustrates reason statutes should exist
following guidelines help determine whether substantial portion community where
occurred perceives incident bias suspect previously involved incident coincided holiday
relating date particular significance racial religious ethnic national origin guidelines fail
offer exact definitive system classify case cometimes cited precedent rulings brien brien
burnt draft card protest draft vietnam despite specifically forbidding burning draft cards
ruled differentiate between public private card burnings therefore attempt regulate
symbolic constitutionality legitimate absolutist symbolic brien regulate conduct
incidentally infringes upon long interest unrelated suppression belief enact regulating
conduct despite expressive elements penalizing expressive elements therefore accurate
interpretation actually supports ruling precedent possibly important recent precedent
established paul involved juvenille paul bias ordinance cross yard black family lived
across street petitioner scalia delivered unanimous divided overturning paul scalia city
ordinance overbroad punished nearly controversial characterizations likely arouse
resentment among defined protected groups inclusive selectively penalize directed some
groups while prosecuting addressed others where lies logic though overturn enumerated
some categories invalid antonin scalia regulate hostility favoritism toward underlying
message involved upheld increases hates other hates other determined inclusive include
every conceivable within context consistent include categories including physical
characteristics party affiliation anti americanism position abortion feingeld interesting
concurring written whom blackmun connor join writes although ordinance construed
reaches egories constitutionally unprotected criminalizes substantial amount repugnant
shielded admendment cases made clear generalized reactions sufficient strip mere
expressive activity causes hurt feelings offense resentment does render unprotected
fatally overbroad invalid face whereas struck down explicitly directed aimed unprotected
nevertheless stated goes sentence enhanced instead received years jail instead four punish
suggests cannot simply viewed harm racists homophobics much broader costs society
quieted ignorant chill limit detract goal insuring availability broadest possible range
expressions marketplace second ruling affects eveyone general constriction interpretation
makes further constrictions third place judging determining quality assumes capacity
make judgements fourth without generally deemd tends forget deemed place nothing
makes skinhead seem stupid allowing voice scrutiny national television audience finally
allows regardless disdain sign strength uses suppress sign weakness unanimous incorrect
number reasons constitutionally fails comply freedom guaranteed guarantee citizens
listed fourteenth arguably overturns suggests leaning towards doctrine where equals
damages societ whole ways simply immeasureable size listed preceding paragraph
terribly flawed hope overturned very near future freedom differ limited things matter
much mere sahdow test substance right differ things touch heart existing order fixed star
constellation official high petty prescribe shall orthodox politics nationalism matters
jackson board education barnette bibliography samuel sentences enhanced human
feingold stanley legislation muzzles journal july susan sticks stones ucla review
december hampshire johnson wooley maynard board education barnette
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