Knoll, David --- "Anti-Vilification Laws: Some Recent Developments in the United States and Their Implications For Australia" [1994] AUJlHRights 14; (1994) 1(1) Australian Journal of Human Rights 211

Anti-Vilification Laws: Some Recent Developments in the United States and their Implications for Proposed Legislation in the Commonwealth of Australia

David Knoll[1]

• Introduction
• The American Experience
  • An introduction to the concept of 'fighting words'.
  • Some early case law.
    • An Encounter Between Rights For Different Groups In Society: The Clash Between Neo-Nazis Or Jews.
    • The Focus On Individual Rights Over Group Rights.
    • The Choice Between Protection Against Discrimination And Protection Of Freedom Of Speech.
  • The new wave of American anti-vilification laws.
    • Michigan: Prohibition Of All Forms Of Racial Victimisation - Invalid.
    • Michigan: Prohibition Of Ethnic Intimidation - Valid.
    • Minnesota: Prohibition Of Symbols Which Arouse Resentment - Invalid.
    • Oregon: Penalty Enhancement For Crimes Committed Because The Criminal Perceives Racial Difference - Valid.
    • New Jersey: Prohibition Of Action With A Purpose To Intimidate - Valid.
    • Florida: Penalty Enhancement When The Criminal Act Itself Evidences Prejudice -Valid.
    • California: Protection Of Homosexuals' Right Of Free Expression - Valid.
    • Wisconsin: Supreme Court Upholds Penalty Enhancement.
    • After Wisconsin V. Mitchell - Washington: Penalty Enhancement For Racially Biased Victim Selection - Valid.
• Legislative Drafting Challenges
• The Keating Initiative: Quo Vadis

Introduction

The first amendment freedom of speech is an active freedom in that it focuses on a right to do something, that is, to speak one's mind. In protecting citizens against racial and religious discrimination, the fifth and fourteenth amendments focus on the victim of discriminatory action. They are passive freedoms. They do not give anyone the right to do something, but rather shield citizens from unacceptable actions. To the extent that speech - as defined in American jurisprudence - can effect racial discrimination, the exercise of one freedom can violate another.

In considering this tension, it is important to keep in mind that the operation of the doctrine of precedent - stare decisis - in the United States is different to its operation in Australia. There are no less than (and arguably more than) 62 multiple hierarchies; eleven Federal circuits, 50 States and the District of Columbia. Perhaps more importantly American judges generally are more willing than their Australian counterparts to distinguish and even step away from superior court judgements; even the pinnacle judgements of the United States Supreme Court.

The American experience in the last decade has seen a resurgence of state anti-vilification laws, and that experience is of some value in guiding Australian legislators towards an appropriate model for implementation.

This paper briefly surveys the recent American experience, and identifies some key jurisprudential frictions. These are encounters:

* between rights of one group in society and the rights of another group.

* between the focus on the protection of the individual qua individual in society and the protection of that individual as a member of a race, religion, national or social or gender group.

* between protection against discrimination and protection of freedom for discriminatory conduct, including speech.

Similar, albeit less individualistic, libertarian concepts underlie much of the Australian debate. Much of the Australian social commentary - not unlike the flow of discussion in American civil rights organisations such as the American Civil Liberties Union and the American Jewish Congress - sees anti-vilification laws as a genus horribillus. Seemingly persuasive arguments for legislative inaction are eloquently put. For example, Phillip Adams' express concern is that such laws will not work to overcome bigotry. As one of Australia's leading social commentators, he candidly observes:

While things can get a bit rocky here, Australia is a long way from having the problems of an allegedly united Germany. We don't have the vicious racism observable in Belgium. Australia is still an easygoing place, even if what looks like tolerance is indifference. I fear anti-vilification laws will make matters worse rather than better. Instead of lowering tensions the legislation may well increase them, encouraging overreactions everywhere. Hence this glum prophesy. That the laws will be a self-fulfilling prophesy.[2]

Phillip Adams does not recognise the leeways of choice both legislators and judges have in addressing such laws. For example, anti-vilification laws need not jail bigots, just for being bigots. They need not focus on adversarial forms of dispute resolution. They need not make the Australian social clime any less easygoing. Equally, they can do some or all of these things. They can - if properly crafted - stop some of the rot that allows tolerance to slide into indifference and on into hatred. Most importantly, not having anti-vilification laws can act as a catalyst for just such a slide. While in the space allotted this paper cannot even begin to address the legislative crafting and drafting issues, it can lay out some pitfalls by reference to the American experience.

The American Experience

An introduction to the concept of 'fighting words'.

Some early case law.

'It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion ... so as to expose that race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. . . .'

Beauharnais was caught distributing a leaflet which called on the Mayor and City Council of Chicago 'to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro' It admonished the '[o]ne million selfrespecting white people in Chicago to unite . . . .' with the statement added that 'if persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions . . . rapes, robberies, knives, guns and marijuana of the negro, surely will.' This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc. Beauharnais was president of the White Circle League.

The Illinois court declined Beauharnais' invitation to charge the jury that in order to convict they must find 'that the article complained of was likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest '. Beauharnais appealed.

In delivering the majority judgement in the Supreme Court, Felix Frankfurter explained that:

'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' Cantwell v. Connecticut, [1940] USSC 84; 310 U.S. 296, 309-310. Such were the views of a unanimous Court in Chaplinsky v. New Hampshire at 571-572[7]

His Honour further noted that:

'the utterances here in question 'are not,' as a detached student of the problem has noted, 'the daily grist of vituperative political debate. Nor do they represent the frothy imaginings of lunatics, or the 'idle' gossip of a country town. Rather, they indicate the systematic avalanche of falsehoods which are circulated concerning the various groups, classes and races which make up the countries of the western world.' Riesman, Democracy and Defamation: Control of Group Libel, 42 Col. L. Rev., at 727. Professor Riesman continues: 'Such purposeful attacks are nothing new, of course. . . . What is new, however, is the existence of a mobile public opinion as the controlling force in politics, and the systematic manipulation of that opinion by the use of calculated falsehood and vilification.' Id., at 728.'[8]

The Illinois legislature acted on local experience. The court noted that:

'Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Lovejoy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction. In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a significant part. The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers of new inhabitants, as yet concentrated in discrete racial or national or religious groups -- foreign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allurements of northern claims. Nine years earlier, in the very city where the legislature sat, what is said to be the first northern race riot had cost the lives of six people, left hundreds of Negroes homeless and shocked citizens into action far beyond the borders of the State. Less than a month before the bill was enacted, East St. Louis had seen a day's rioting, prelude to an outbreak, only four days after the bill became law, so bloody that it led to Congressional investigation. A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in the summer of 1919. Nor has tension and violence between the groups defined in the statute been limited in Illinois to clashes between whites and Negroes.[9]

The court forcefully concluded that it was 'precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved.'[10]

Beauharnis preceded the explosion in American civil rights legislation, and its continuing validity as correct constitutional interpretation has been doubted. Yet in Garrison v. Louisiana[11], Justice Brennan referred to Beauharnis as a case upholding a statute 'designed to reach speech, such as group vilification, 'especially likely to lead to public disorder'.' Provided the class of person to be protected is precisely defined, a law validly may be passed to protect a group against defamation.[12] The protection from hate speech was for the benefit of society as a whole. It could operate for a segment of that society, but then would be more strictly reviewed. There would be 'less' social benefit to balance against the burden of free speech. Thus, the more narrow the class or social sub-group, the more difficult will be the task of persuading the Supreme Court to uphold the validity of a law to protect that class or social sub-group against defamation.

An Encounter Between Rights For Different Groups In Society: The Clash Between Neo-Nazis Or Jews

There is an awful irony here, because part of the reason violence was unlikely was because the Jewish residents of the area had been so effectively intimidated. The court gave little consideration to the victims' free speech rights, preferring to focus on the rights of the neo-Nazi marchers which were being challenged. In focusing on the marchers' rights, the court recognised - but really only in passing - that the marcher's object was the denial of their victims' rights to speech and indeed to life in American society. As is illustrated by the more recent Florida decision in Dobbins v. State,[16] a different result can follow when the violence has already occurred, and the intimidation has been carried through to oppressive action.

The Focus On Individual Rights Over Group Rights

In Cohen v. California[17] the difference between fighting words and abusive speech was carefully drawn. The words 'Fuck the Draft' appeared on a jacket worn in a public place. The court refused to uphold the application of a breach of the peace statute to prosecute the wearer. The words were offensive, but, they did not prevent any other person from exercising the right to free speech. Nor did they intimidate any person from exercising the right to free speech. Context was important though, and what was not intimidatory in a public protest could well be intimidatory in a junior school.[18]

The Choice Between Protection Against Discrimination And Protection Of Freedom Of Speech

Today a realisation is again dawning in American academic parlance. The conflict between the Fourteenth Amendment which guarantees protection against racial discrimination and the First Amendment which in part guarantees free speech, is being addressed full on. Lower courts are upholding tightly drafted group defamation laws. They are approving most anti-vilification laws as an exercise of the State's police powers.[21] At the same time, they are requiring that those laws conform to Justice Brennan's precision requirements in order to avoid the potential for their misapplication.

No longer can the right to free speech be relied on in an absolute sense. It is simply incorrect to hold up the First Amendment as an icon to support opposition to anti-vilification laws. The American jurisprudence is now affirmatively balancing competing constitutional rights, and the following discussion tracks the early progress of the balancing approach.

Daniel even has entered the lion's den. In June 1989 Professor Charles Lawrence of Stanford University Law School attempted, somewhat in vain, to focus the American Civil Liberties Union on the conflict.[22] Today, the Civil Rights Act is beyond challenge. It protects persons, as a practical matter primarily blacks, against racist conduct, and indeed stigmatisation. It addresses motive as well as conduct, yet has survived first amendment challenge. Indeed, discriminatory motive is actually part of the definition of the tort of conspiracy to interfere with civil rights. [23] Any American can sue two or more others when they:

'conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . .'[24]

The Supreme Court has interpreted this statute to require 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.'[25] The court accepted that 'invidiously discriminatory motivation' was an express element of the tort.

Anti-discrimination employment laws penalise otherwise legal decisions. For example, employers cannot decide between people on the basis of a person's race, gender, or disability,[26] Title VII of the Civil Rights Act punishes otherwise legal treatment of another person when such treatment is invidiously motivated by race.

The protection against racial discrimination even extends to the allocation of public funds. In Bob Jones University v. United States the Supreme Court upheld the Internal Revenue Service discontinuance of tax exempt status to a college. The tax exemption was removed because the college issued a Policy against interracial dating and marriage[27]. The court's ruling had the effect that Bob Jones University had less of a right to provide education to Americans than a college which espoused more popular views about relationships between races.

The new wave of American anti-vilification laws.

Fifty years after Professor Riesman's stirring paper, many American States are passing anti-vilification laws, rather like the Illinois legislation addressed in Felix Frankfurter's opinion in Beauharnis. In California, for example, following 2 years of public hearings throughout California, the Attorney General's Commission on Racial, Ethnic, Religious and Minority Violence concluded that minorities had been harassed, intimidated, assaulted, and even murdered in virtually every part of the state, and further found that the rate of such hate crimes was increasing, and that existing laws were inadequate to protect Californians from 'hate-motivated' violence. The state legislature enacted Penal Code Sections 422.6 and 422.7. California chose to give law enforcement officials clear, effective authority to prevent acts of hate violence, and to deter such offensive conduct by establishing serious criminal penalties.[28]

There are two types of anti-vilification laws coming before the courts. One type focuses on 'hate-speech' as an incitement to violence. This type of legislation test the limits of the fighting words exception. The other type is penalty enhancement. This type focuses on the violence that is incited, and not on the incitement itself. With both types courts have now had to engage in the difficult exercise balancing one set of human rights against another. This paper now turns to the judicial balancing act.

Michigan: Prohibition Of All Forms Of Racial Victimisation - Invalid

The motivation of the Policy was that racial harassment actually intimidated free speech. For a minor insensitivity a reprimand was the punishment. Halfway up the staggered list of punishments was eviction from University housing. This preceded suspension or expulsion from the University. The University even issued a guide to the interpretation of its new Policy. The guide too was law. It listed as examples of illicit conduct:

* A flyer containing racist threats displayed in a residence hall.

* Racist graffiti written on the door of an Asian student's study carrel.

* Male students leave pornographic pictures and jokes on the desk of a female graduate student.

* Laughing at racist jokes too was an offence.

The University's lawyers advised on enforcement, and expressed no qualms about constitutionality. Interestingly, there was no written record of consultation with the law school, one of America's most prestigious.

The guide was quickly withdrawn from circulation, but without any announcement that it was no longer authoritative.

When challenged in court, the Policy was declared invalid. Judge Avern Cohn, in a superbly written opinion in John Doe v. University of Michigan[29] pithily pointed out that:

It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict.[30]

Judge Cohn opined that offensive speech is protected by the First Amendment to the United States Constitution. The court noted that, to a quite excessive degree, the Policy was itself intimidatory in protecting minorities against intimidation. Judge Cohn drew a distinction between regulating human activity and intimidating it from occurring. The law may perform the former function, but not the latter.

Yet as thus interpreted the Constitution is far from neutral. It imposes restraint upon each layer of Government as John Doe v. University of Michigan makes clear. However, it does not require the same standard of those whom it regulates, such as the neo-Nazi marchers in Collin v. Smith. Thus interpreted, the level playing field of the expression of ideas intended by the framers of the first amendment burdens victims but not their assailants. The rights of the Jews of Skokie were not protected. The rights of black students at the University of Michigan to focus on their studies without racial intimidation also were not protected. Those black students railed against Judge Cohn's decision Yet in the courtroom the defect in the Policy was not its noble objective, but its excessive reach. The problem was not in having such a Policy, but in the craftsmanship with which it was created.

Michigan: Prohibition Of Ethnic Intimidation - Valid

The defendant appealed and tried to overturn the statute. The court upheld the statute, because it did not give the jury unstructured and unlimited discretion. It required evidence that the crime was committed because of racial animosity. This statute clearly did so.

Minnesota: Prohibition Of Symbols Which Arouse Resentment - Invalid

Whoever places on public or private property a symbol, object, appellation, characterisation 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.[34]

The St Paul ordinance focused not on the vilifier's activity but on the harm that activity caused. Prosecuting an apparent Klan member for burning a cross to intimidate black citizens, the city was challenged all the way to the United States Supreme Court. St Paul's argument before the Supreme Court concluded as follows.

Finally, we ask the Court to reflect on the 'content' of the 'expressive conduct' represented by a 'burning cross'. It is no less than the first step in an act of racial violence. It was and unfortunately still is the equivalent of waving the knife before the thrust, the pointing of a gun before it is fired, the lighting of the match before the arson, the hanging of the noose before the lynching. It is not a political statement or even a cowardly statement of hatred. It is the first step in an act of assault. It can be no more protected than holding a gun to a victim's head. It is perhaps the ultimate expression of ;'fighting words'.[35]

The Ordinance sought to take advantage of the Fourteenth Amendment to the United States Constitution which seeks to protect against racial discrimination. In doing so however it was found to lack the necessary precision to be upheld as valid. It had too wide a reach. In prohibiting acts that could annoy but which did not actually intimidate the language was insufficiently explicit to permit citizens to predict what conduct would render them subject to what penalties. A criminal statute must not be so vague as to allow a judge or jury unbridled discretion to decide what conduct to punish. The St Paul ordinance was struck down under what is known as the overbreadth doctrine. It is generally viewed as an exception to the established principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others.

The Supreme Court sanctioned the view that content cannot be the object of censorship by law.[36] However, the Court's reasoning did not hone in on how content neutral the Ordinance was, and was internally inconsistent on this issue. It conceded that the ordinance addressed itself to fighting words, but determined that it did so by censoring specific content.[37] Justice Scalia, delivering the Court's judgement remarked that:

Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.[38]

This of course is content-based discrimination in its own right. Not only is it difficult to see how the St Paul ordinance proscribed criticism of Government, in an astonishing piece of circular reasoning, Justice Scalia drew a line in the sand when he said:

the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communications any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey.[39]

With this rule in mind, the arguments of the City of St Paul extracted above could well have proven to fit within the fighting words exception. St Paul tried to proscribe only those fighting symbols that engender racial, gender or religious intolerance. And, the symbols which were proscribed were those which 'by their very utterance inflict injury' - the Chaplinsky formula. The court had a different view of "socially unnecessary" and substituted its view for that of the elected Government of the City of St Paul, paradoxically to achieve a majoritarian outcome. So, the majority of the United States Supreme Court determined that the ordinance did not fit within the exception. The court adopted a curious euphemism. It decided to narrow the scope of the fighting words exception to statutes which did not restrict content but only the mode of expression.

This is an entirely new interpretation of the law, and the concurrences, while agreeing on the result - because they viewed the language of the ordinance to be overbroad - disagreed with the new statement of principle. The Justices gave little practical guidance on the Court's attitude to hate speech regulation, and were rather unpersuasive in distinguishing Beauharnis.

Justice Blackmun, in dissent, considered that the majority decision was at best an aberration in the development of First Amendment jurisprudence.[40] Justice Blackmun, like Justice White, preferred to invalidate the St Paul ordinance because it reached protected speech as well as fighting words.[41] Justice Blackmun opined:

I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns, but I see great harm in preventing the people of Saint Paul from specifically punishing the race-based fighting words that so prejudice their community.[42]

Synthesising the rule following R.A.V. v. City of St Paul, to be valid an anti-vilification law:

1. must require a high degree of imminence of actual physical violence, and

2. must focus very closely on protection against the violence rather than on the reasons for the violence.[43]

The majority judgement creates a category of illusory reference to justify narrowing the scope of the fighting words exception quite significantly. The distinction between the mode of hate and the content of hate neither addresses the impact of hate speech as an assault upon the hater's victims, nor does it help deter incitements to violence. It is too late to intervene when the violence is happening, particularly when the connection between the incitement and the violence is so consistent and frequent.

Alternatively, the majority judgement can be viewed a suggesting that content based regulation can survive if there is a compelling state interest in it. Far from deciding that content based regulation of speech was unacceptable, Justice Scalia would only strike down laws whose content 'embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey'. The inherent moral majoritarianism had finally become explicit. Fortunately, R.A.V. v. City of St Paul is already being distinguished and confined by the multitiered American judicial system, as the following discussion illustrates.

Oregon: Penalty Enhancement For Crimes Committed Because The Criminal Perceives Racial Difference - Valid

He appealed and argued that Oregon's anti-vilification law which makes it a crime for two or more persons, acting together, to '[i]ntentionally, knowingly, or recklessly cause physical injury to another because of their perception of that person's race, color, religion, national origin or sexual orientation,'[45] violated the overbreadth doctrine. The phrase, 'because of their perception of [the victims'] race, color, religion, national origin or sexual orientation,' he argued operated to invite standardless prosecution. The court disagreed. The accuracy of the attacker's perception was irrelevant. The statute expressly and unambiguously required the prosecution to prove a causal connection between the infliction of injury and the assailants' perception of the group to which the victim belongs.

In declining to review Plowman while overturning the St Paul ordinance, the United States Supreme Court is being heard to declare that expressions of hate cannot be made into crimes, but can factor into the sentencing equation.[46] This too, like the distinction drawn in R.A.V by Justice Scalia, offered little practical guidance. The sentencing equation can - and often does - overlap into the question of liability. Severity of sentence is a key deterrence criterion. Thus, if the First Amendment is to protect hate speech, Plowman should have been overturned. It was not, and American jurisprudence was left in state of some confusion.

New Jersey: Prohibition Of Action With A Purpose To Intimidate - Valid

One David Mortimer was tried under the New Jersey law. He was indicted for spray painting swastikas on a Jewish family's home and for spray-painting the words: 'Dots U Smell' on a Pakistani family's home. The prosecution allowed a plea bargain under which the defendant pleaded guilty to the second offence and volunteered restitution to the Pakistani family. It is unclear from the official record whether the Jewish family withdrew its complaint or the prosecution traded that offence.

When the Supreme Court's decision on the St Paul ordinance became known, Mr Mortimer withdrew his guilty plea, and moved to dismiss the indictment. The trial court acceded and dismissed.

The prosecution appealed successfully to the New Jersey Supreme Court. While under the majority rule in R.A.V. hate could not validly be made a crime, the prosecution argued that a crime could be aggravated by hate, and the punishment had to fit the aggravated crime. Violent conduct was not 'speech', and was beyond constitutional protection. The New Jersey Supreme Court took a literal interpretation of the speech versus conduct distinction left open by Justice Scalia in R.A.V. and expressed itself in plain language.

... a person may harbor ill will, hatred, or bias toward as specific group or person and may communicate such ill will, hatred, or bias without fearing prosecution. What that person may not do, however, is act on such sentiments in a harassing manner.[48]

To be valid the court held that a statute must not chill free speech, but it may chill unwanted conduct, and punish it more severely because it was motivated by racial hatred.[49] This position is also recognised in other State courts such as Missouri,[50] New York[51] and Vermont.[52]

Florida: Penalty Enhancement When The Criminal Act Itself Evidences Prejudice -Valid

'The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion or national origin of the victim.'[54].

This statute went further than most in that the crime did not need to be committed 'by reason of' the vilificatory intent. It merely needed to evidence such intent. Nonetheless, it survived judicial scrutiny. It was well tested and it is worth reviewing the defendant's key arguments against the statute's validity.

One ground for the defendant's appeal was that the statute was impermissibly vague and overbroad, particularly since the provision was susceptible of applying to protected speech. The defence pointed out that it did not require that the prejudice alleged have any specific relationship to the commission of the crime. The appellate rejected the defence argument. It simply ruled that the defendant's argument appeared to concede that if the statute permits enhancement only upon proof, beyond a reasonable doubt, that the defendant committed the battery motivated, in whole or in part, because the victim was Jewish, the enhanced penalty would be appropriate.[55]

Another ground of appeal was that the statute permitted conviction where a person says a racial slur while resisting arrest because that person believes he or she is innocent. This would be overbroad. The court disagreed, emphasising that it is the commission of the crime that under the Statute must evidence the prejudice. The fact that racial prejudice may be exhibited during the commission of the crime is itself insufficient. In this case the jury determined that the victim was chosen because he was Jewish. Had the fight occurred for some other reason, such as over an unpaid debt, the court concluded, the mere fact that the victim might have been called a 'Jew boy' could not enhance the offence.

The court but formally distinguished R.A.V. v City of St. Paul. The Florida law did not punish the oral or written expression of vilificatory opinions. It punished acting on such an opinion to injure another person. Indeed, the court continued, the act of choosing a victim for a crime because of his or her race or religion is a type of speech that is subject to regulation. Staring down the express reasoning by Justice Scalia in R.A.V., the court went so far as to say that non-verbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses. The statute sought to discourage racially or religiously motivated victim selection through increased penalties. Although the defendant hated Jewish people, what was proscribed was not his hate, but rather that the defendant beat his victim because the victim was Jewish. Moreover, even if the Florida Statute did regulate the content of speech, the court ruled that it was sufficiently narrowly tailored to serve the compelling state interest of insuring the basic human right - not to be a target of a criminal act - of members of groups that have historically been subjected to discrimination because of membership in those groups.[56]

California: Protection Of Homosexuals' Right Of Free Expression - Valid

'No person . . . shall by force or threat of force, wilfully injure, intimidate or interfere with . . . any other person in the free exercise or enjoyment of any right or privilege secured to him or her . . . because of the other person's race, color, religion, ancestry, national origin, or sexual orientation.'

A misdemeanour can be punished as a felony:

'if the crime is committed against the person . . . of another for the purpose of intimidating or interfering with that other person's free exercise or enjoyment of any right secured to him or her by the constitution or laws of this state . . . because of the other person's race, color, religion, ancestry, national origin, or sexual orientation.'

The appeal court ruled the legislation to be valid. It required proof of a specific intent to deprive a person of a defined constitutional or statutory right on account of the person's status as a member of a protected class, and so was sufficiently precise to be upheld.[60] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.[61]

Wisconsin: Supreme Court Upholds Penalty Enhancement

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 506 U.S., 444 (1992)

The Supreme Court took specific judicial notice of the many penalty-enhancement provisions similar to the Wisconsin statute.[63]. It acknowledged their controversial nature. Asian and Jewish organisations indeed filed friend of the court briefs to educate the court on the severity of the vilification problem in the United States, and the Supreme Court acknowledged their evidence that 'bias-motivated violence is on the rise throughout the United States.'[64] Even the empirical evidence caught the Supreme Court's attention, and the Chief Justice at least signalled that the Supreme Court would not be adopting an absolutist approach to freedom of speech.[65]

The relevant legislation increased penalties where the assailant:

Intentionally selects the person against whom the crime ... is committed or selects the property which is damaged or otherwise affected by the crime ... because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.[66]

It now seems that without harassment with the threat of violence or violence, racist hate speech cannot be outlawed in the United States. The unanimous court upheld the Wisconsin statute because it focused on conduct rather than on speech. The conduct was already criminal, and the court felt no discomfort in upholding the penalty enhancement statute. The Statute was held to have no 'chilling effect' on free speech, nor was it overboard. Contrast the conduct of the neo-Nazi marchers in Skokie whose base conduct was quite within the law, except for its vilificatory nature.

Perhaps, more importantly, the Supreme Court rejected the 'view that an apparently limitless variety of conduct can be labelled 'speech' whenever the person engaging in the conduct intends thereby to express an idea.'[67] Thus, a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment[68]

Mitchell argued that because the only reason for the penalty enhancement was his discriminatory motive for selecting his victim the statute violated the First Amendment by punishing offenders' bigoted beliefs. However, as the Supreme Court pointed out, the First Amendment is no bar to the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. This was not new law, but had somehow been lost in the mist surrounding the debate over criminal anti-vilification laws. Said Chief Justice Rehnquist for the court:

Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like. Nearly half a century ago, in Haupt v. United States[1947] USSC 71; , 330 U.S. 631, 91 L. Ed. 1145, 67 S. Ct. 874 (1947), we rejected a contention similar to that advanced by Mitchell here. Haupt was tried for the offense of treason, which, as defined by the Constitution (Art. III, SS3), may depend very much on proof of motive. To prove that the acts in question were committed out of 'adherence to the enemy' rather than 'parental solicitude,' id., at 641, the Government introduced evidence of conversations that had taken place long prior to the indictment, some of which consisted of statements showing Haupt's sympathy with Germany and Hitler and hostility towards the United States. We rejected Haupt's argument that this evidence was improperly admitted. While 'such testimony is to be scrutinized with care to be certain the statements are not expressions of mere lawful and permissible difference of opinion with our own government or quite proper appreciation of the land of birth,' we held that 'these statements . . . clearly were admissible on the question of intent and adherence to the enemy.' Id., at 642. See also Price Waterhouse v. Hopkins, [1989] USSC 85; 490 U.S. 228, 251-252[1989] USSC 85; , 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (plurality opinion) (allowing evidentiary use of defendant's speech.[69]

After Wisconsin V. Mitchell - Washington: Penalty Enhancement For Racially Biased Victim Selection - Valid.

The Washington appellate courts also have distinguished R.A.V. in order to uphold that State's anti-vilification legislation. The Washington law took the penalty enhancement route rather than outright prohibiting hate speech outright , and like New Jersey operated at the more immediate stage of harassment crimes. It read as follows.

'(1) A person is guilty of malicious harassment if he maliciously and with the intent to intimidate or harass another person because of, or in a way that is reasonably related to, associated with, or directed toward, that person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap:

(a) Causes physical injury to another person; or

(b) By words or conduct places another person in reasonable fear of harm to his person or property or harm to the person or property of a third person. Such words or conduct include, but are not limited to, (i) cross burning, (ii) painting, drawing, or depicting symbols or words on the property of the victim when the symbols or words historically or traditionally connote hatred or threats toward the victim, or (iii) written or oral communication designed to intimidate or harass because of, or in a way that is reasonably related to, associated with, or directed toward, that person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap. However, it does not constitute malicious harassment for a person to speak or act in a critical, insulting, or deprecatory way unless the context or circumstances surrounding the words or conduct places another person in reasonable fear of harm to his or her person or property or harm to the person or property of a third person; or

(c) Causes physical damage to or destruction of the property of another person.

(2) The following constitute per se violations of this section:

(a) Cross burning; or

(b) Defacement of the property of the victim or a third person with symbols or words when the symbols or words historically or traditionally connote hatred or threats toward the victim.

(3) Malicious harassment is a class C felony."[70]

In State v Talley[71], the Washington anti-vilification statute was held to be aimed at criminal conduct and enhanced punishment for that conduct where the defendant chose his or her victim because of a perceived membership in a protected category. This case was a combination of two appeals. Both challenged the constitutional validity of Washington State's hate crimes statute.

The first case, State v. Talley concerned a mixed race couple by the name of Smith. They had just bought a house, and were visiting it with the real estate agent to measure it for carpets and drapes. David Talley, who lived next door, saw them and complained to bystanders that 'having niggers next door' would ruin his property values. He built a 4-foot-tall cross, planted it in his own yard, set it on fire with gasoline, and began to 'hoot and holler'. It did not help relax the victims that Talley was a skinhead who wore combat fatigues. Mrs Renee Smith approached Talley and asked if there was a 'problem'. He replied that he did not talk with her 'kind' and ordered her off his driveway. Talley was charged with six counts of malicious harassment.

Talley successfully argued at trial that the statute was unconstitutional because it violated his right to free speech.

The second case, State v. Myers and Stevens, concerned erection of a cross by a group of white teenagers in the front yard of a black classmate, and their attempt to set it on fire. The victim's parents were coming home form a function when they saw a group of teenagers outside their home. The teenagers fled before the cross was properly alight. The State charged Myers and Stevens each with one count of malicious harassment. The defence were successful at trial, and the State appealed to this court.

The court upheld subsection (1) but not subsection (2). The latter was ruled to be overbroad in its reach. Unlike the St. Paul ordinance considered in R.A.V., the court ruled that subsection (1) of the Washington Statute:

'does not, on its face, regulate speech. Rather, the statute is aimed at criminal conduct and enhances punishment for that conduct where the defendant chooses his or her victim because of their perceived membership in a protected category. The statute punishes the selection of the victim, not the reason for the selection. It increases punishment where the perpetrator acts on particularly offensive beliefs, not the beliefs themselves. The statute is triggered by victim selection regardless of the actor's motives or beliefs.'[72]

But as to subsection (2) the court ruled:

It is clear, therefore, that the Legislature intended to criminalize cross burning and depiction of hate symbols 'per se'. This is unconstitutional because symbolic hate speech, however offensive, is protected. [73]

The punished conduct constituted a misdemeanour anyway.[74] But, when the victim is targeted because of perceived membership in one of the enumerated categories, then the criminal conduct became punishable as a felony. Therefore, the court reasoned, the statute under inquiry concerned not bigoted speech or thought, but rather the act of victim selection.

The court additionally rejected the defendants' argument that the statute nonetheless operated only where bigoted thought was present and that since punishment is enhanced only in such circumstances, the statute effectively punishes bigoted thought. Hate crimes are more damaging than their content-neutral counterparts. This degree of difference was held comparable to penalty enhancement for attacks against a governor or judge. While the prosecution must prove that the defendant selected a victim because of perceived membership in a specified group it does not require the prosecution to establish the 'motive' underlying that choice. That is, the court elaborated, the statute punishes the intentional act of discrimination, not the motive underlying the act.

Additionally, the court interpreted the position of the United States Supreme Court to be that, where evidence of racial intolerance is relevant to the issues, the United States Constitution does not prohibit such evidence simply because those 'beliefs and associations are protected by the First Amendment.'

Far from feeling tightly bound by the reasoning of the majority in R.A.V., the Washington courts worked overtime to limit the impact of R.A.V., a distinction process invited by impossible guidance contained in Justice Scalia's reasoning. Explicit reliance was placed on the decision in Wisconsin v. Mitchell to support the upholding of the teenagers' convictions. Ironically, Talley's convictions were overturned.

As if to show how far R.A.V. had been left behind, the brief of the American Civil Liberties Union described the law as a malicious harassment law - 'a public necessity'.[75] The ACLU - Washington Chapter - went on to say:

'Experience shows that threats of violence based on personal characteristics or group identity cause deep individual and societal harm and that they diminish, rather than enhance, the exchange of ideas in a free society.'[76]

The key advocate of first amendment rights has now formally acknowledged the place of anti-vilification laws in protecting human rights.

Legislative Drafting Challenges

If serious insensitive conduct - that is vilification - is to be illegal then a number of issues arise. From the perspective of the vilified, it simply is not enough to publicly state, as the Prime Minster has now done before the Zionist Federation of Australia, that Commonwealth Anti-Vilification legislation will be introduced.

Not having to deal with the many varied interpretations of the fighting words exception to the First Amendment to the United States Constitution, Australian legislators can address vilification when it is expressed so as to incite violence, without waiting for the violence to occur. Perhaps the key lesson from the American jurisprudence is that the focus on freedom of expression has enabled a pattern of frequent racially motivated violence to establish itself. The law reacts after the event. Prosecutors have become reluctant to push vilification attempt cases for fear that courts will see them as choking off free speech. No prosecutor wants to be on the wrong end of another Skokie.

On the other hand, Australian legislators need have no such reluctance. They need not hang back until a pattern of vilificatory incitement establishes itself. Australia has the opportunity to heed Professor Riesman's warning. Our Government should not feign to be neutral while allowing some private groups to wield power over - and to intimidate - others. Tolerance of intimidatory conduct is a form of moral majoritarianism. It is indeed an intolerance that is inappropriate to our multicultural society.

Consideration also needs to be given to how easy or how hard the law will make the obtaining of a conviction. The elements of the offence must be laid out with adequate precision to enable prosecutors to manage their work efficiently. Confusing standards and imprecise drafting are barriers to prosecutorial willingness. If one accepts that anti-vilification laws need not necessarily bear the ills that Phillip Adams decries, one can only hope that the debate in Australia begin to move away from whether we enact to what we enact and how we implement.

The Keating Initiative: Quo Vadis

Free speech is no less laudable than free markets. It is the political plane rather than the economic. In the field of economics a student at the University of New South Wales was once chided into line by a lecturer who has since become rather famous. The student dared to suggest that support for the free market should be tempered by a realisation that a viable free market depended on consumers having enough information to make rational decisions. Reduce the information flow and the market will signal erroneous supply decisions.[77] If the information flow is patently imperfect, then free market principles cannot be applied. So too it is in considering political discourse. Allow vilificatory speech and the voices that are heard will lead to erroneous political decisions. Allow enough vilificatory speech and vilification will become credible. The credibility will then pursue the vilification into violence.[78]

In a nation where freedoms are not just individual focused, where mateship is still a great value, where the free market in ideas still stops when yer mate ain't got a fair go, the saleability of sound anti-vilification legislation ought not to be overly problematic. If it is, Australians need to recognise and heed the erroneous signals to the political market early.

Although the Bill of Rights that is so central to the American Constitution is not part of Australian jurisprudence, Australian social values are different only to the extent that our focus on individual rights is moderated by the high value we place on mateship. The question that so often passes by silently in Australian discourse is whether ethnic, racial and religious minorities constitute 'mates'. Today there should be no doubt that they are 'mates', and the Prime Minister's speech to the Zionist Federation if Australia was brutally clear on that point.

If the exercise of rights by one citizen prevents another from exercising his or her rights then the law can choose to intervene. Equally the law can choose to not intervene. No intervention effectively condones the intimidation. A law against the intervention should direct the judiciary to the need to take evidence on the degree of impact on the victim. Evaluating such evidence is part of the normal judicial function - and not an obstacle to legislation.

Australia should not entertain the irony that resulted in Collin v. Smith. Leaving the victims powerless is not an preservation of constitutional freedom. The option of having no legislation is pure moral majoritarianism. Only the minority victims bear the burdens.

(c) David D. Knoll 1994

Footnotes

[1] David D. Knoll, Visiting Fellow in International Law, University of New South Wales; Consultant on Legislative Affairs to the New South Wales Jewish Board of Deputies, formerly Chairperson, American Jewish Congress Commission on Law and Social Action, Cleveland, Ohio. This paper is based partially on a paper presented to a workshop hosted by the Executive Council of Australian Jewry, the Australian Institute of Jewish Affairs and the B'nai Brith Anti-Defamation Commission, held in Melbourne on June 13, 1994. Thanks - but no responsibility - go to Ian Lacey of Sydney, Steve Shulman of Toronto, Marc Stern of New York and Josef Szwarc of Melbourne for their helpful criticisms. The law cited in this article is as available to the author at 30 September, 1994.

[2] Adams, Bigots better in the open, The Weekend Review - The Weekend Australian, October 1-2, 1994, 2.

[3] Exceptions also exist for obscenity (Miller v. California, [1973] USSC 190; 413 US 15 (1973)) and for child pornography (New York v. Ferber [1982] USSC 169; 458 US 747 (1982)).

[4] Chaplinsky v. New Hampshire [1942] USSC 50; 315 US 568, 571-72 (1942).

[5] [1952] USSC 75; 343 US 250 (1952), rehearing denied 343 US 988.

[6] Ill. Rev. Stat.,1949, c. 38, Div. 1, SS47

[7] [1952] USSC 75; 343 U.S. 250, 258. The older authorities are collected and discussed in Tanenhaus, Group Libel, 35 Cornell L. Q. 261, 269-276.

[8] 343 US, 262.

[9] 343 US, 259-61.

[10] 343 US, 261.

[11] [1964] USSC 217; 379 US 64, 70 (1964).

[12] Critical dicta in New York Times v. Sullivan, [1964] USSC 40; 376 US 254, 279 (1964) is not to the contrary.

[13] [1978] USCA7 278; 578 F.2d 1197 (7th Cir. 1978), certiorari denied[1978] USSC 187; , 439 US 916 (1978); see 38 L.Ed. 2d 835, section 13.

[14] The Skokie story is related at length from the absolutist civil libertarian perspective in: A. Neier, Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979).

[15] See generally, Goldstein, Group Libel and Criminal Law: Walking on the "Slippery Slope, paper presented at the International Legal Colloquium on Racial and Religious Hatred and Group Libel, Tel Aviv University, Israel, December 28-31, 1991, at 20, citing Lasson, Racial Defamation: Abusing the First Amendment, 17 Colum. Human Rights. L. Rev. 11, 15-17 (1985).

[16] 605 So 2d 922, 17 FLW D 2222, approved (Fla) 631 So.2d 303, 19 FLW S 87 (1994).

[17] [1971] USSC 114; 403 US 15 (1972), rehearing denied 404 US 876.

[18] Farber, Civilizing Public Discourse, 1980 Duke L.J. at 283, 294.; Greenawalt, Insults and Epithets; Are they protected speech?, 42 Rutgers L. Rev. 287, 301 (1990); Arkes, Civility and the Restriction of Speech: Rediscovering the Defamation of Groups, 1974 Sup. Ct. Rev. 281.

[19] Riesman, Democracy and Defamation: Control of Group Libel, 42 Colum. L. Rev. 727 (1942).

[20] More recently these views have resurfaced. See for example, Kretzmer, Freedom of Speech and Racism, 8 Cardozo L. Rev. 445, 448-500 (1987); Debate: Holocaust Denial, 8 Cardozo L. Rev. 559, 564 (remarks of Irwin Cotler).

[21] See, for example, Vietnamese Fishermen's Association v. Knights of Ku Klux Klan, 543 F. Supp. 198, 208, 220 (S.D.Tex. 1982) (intimidation by paramilitary training activities is a threat of violence and is not protected speech). Accord, State v Talley 122 Wash 2d 192, 858 P2d 217 (1993).

[22] Lawrence, When Racism Dresses in Speech's Clothing: Reconciling the First and Fourteenth Amendments, Paper presented to the ACLU plenary session, June 15-18, 1989 Biennial Conference, University of Wisconsin.

[23] See 42 U.S.C. SS1985(3) (1988) The Washington Supreme Court has explcitly made this point. State v Talley 122 Wash 2d 192, 225 (1993). ("One cannot make a sound argument that the government can make discrimination in the hiring process illegal, but it cannot criminalize discrimination in selecting a victim for a crime.")

[24] See previous note.

[25] Griffin v. Breckenridge, [1971] USSC 118; 403 U.S. 88, 102 (1971).

[26] Griggs v. Duke Power Co.[1971] USSC 46; , 401 U.S. 424, 432 (1971).

[27] [1983] USSC 97; 461 US 574 (1983).

[28] The legislative history of the Act is more fully detailed in the case of In re M. S. (1993, 1st Dist) 17 Cal App 4th 1328, 22 Cal Rptr 2d 560, review granted (Cal) 24 Cal Rptr 2d 663, 862 P2d 663.

[29] 721 F. Supp. 852 (E.D. Mich. 1989). The author has utilised a transcript of Judge Cohn's decision (No. 89-CV-71683 DT (September 7, 1989)). Citations from that transcript follow. John Doe was a real person to whom the court granted anonymity. The plaintiff in interest however was the American Civil Liberties Union.

[30] Transcript page 1.

[31] 202 Mich App 377, 509 NW2d 528 (1993).

[32] Mich Comp Laws SS750.147b.

[33] R.A.V. v. City of St Paul, 505 US , 112 S. Ct 2538[1992] USSC 99; , 120 L. Ed. 2d 305 (1992), 1992 US LEXIS 3863. See generally Annotation, Validity, construction, and effect of "hate crimes" statutes, "ethnic intimidation" statutes, or the like, 22 ALR5th 261. The views Justice Scalia expressed have been heavily criticised both before and after the R.A.V decision. Note, Fighting Words and Fighting Freestyle: The Constitutionality of Penalty Enhancement for Bias Crimes, 93 Colum L Rev 178 (1993); Note, First Amendment Prohibits Hate Crime Laws that Punish Only Fighting Words Based on Racial Religious, or Gender Animus, 23 Seton Hall L Rev 1067 (1993); Note: Hate Is Not Speech: A Constitutional Defense Of Penalty Enhancement For Hate Crimes. 106 Harv. L. Rev. 1314 (1993). Also see, Annotation, Supreme Court's view as to the protection or lack of protection under the Federal Constitution, of the utterance of "fighting words", 39 L. Ed. 2d 925, supp. secs. 3, 4

[34] St Paul, Minnesota Legislative Code SS292.03 (1990).

[35] Appendix to Brief for Petitioner C-6.

[36] See Police Department v. Mosely[1972] USSC 165; , 408 US 92 (1972).

[37] 1992 WL 135564., 2-3. (temporary citation)

[38] See previous note , 3.

[39] See previous note , 7.

[40] See note 29 , 21.

[41] See previous note.

[42] See previous note.

[43] For different formulations, see Note, Fighting Words and Fighting Freestyle: The Constitutionality of Penalty Enhancement for Bias Crimes, 93 Colum L Rev 178 (1993); Note, First Amendment Prohibits Hate Crime Laws that Punish Only Fighting Words Based on Racial Religious, or Gender Animus, 23 Seton Hall L Rev 1067 (1993). For an earlier perspective, see ; Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L Rev 333 (1991) (Gellman argued that penalty-enhancement statutes violate the First Amendment for evidentiary reasons because they rely on speech as evidence of illicit motive; this evidentiary use of speech, Gellman argues, creates an unacceptable chilling effect. She suggests that not only would the defendant's words be directly related to the predicate offense, but "all of his or her remarks upon earlier occasions, any books ever read, speakers ever listened to, or associations ever held could be introduced as evidence that he or she held racist views and was acting upon them at the time of the offense." Id. at 360..

[44] State v. Plowman, 314 Or 157, 838 P2d 558, certiorari denied, 113 S.Ct 2967 (1967).

[45] Or Rev Stat. SS166.165(1)(a)(A). The statute was clearly modelled on the Civil Rights Act conspiracy provision addressed above.

[46] Also see State v Beebe 67 Or App 738, 680 P2d 11 (1984), review denied 297 Or 459, 683 P2d 1372. (the legislature may specifically determine that the danger to society from assault conduct directed toward an individual because of race, religion, or national origin is greater than the danger from such conduct under other circumstances).

[47] NJSA 2C:33-4d (subsection d).

[48] State of New Jersey v. Mortimer (A-11-93) (transcript) at 10, since reported: 135 NJ 517, 641 A.2d 257 (1994).

[49] See previous note. at 15. The court did however strike the words; at least in part with ill will, hatred or bias towards" as being too vague to be enforceable as criminal statute. See previous note. at 17-18.

[50] Stegmaier v. State 863 S.W. 2d 924 (Mo. Ct. App. 1993).

[51] People v. Miccio 589 NYS 2d 762 (Crim. Ct. 1992).

[52] State v. Ladue 631 A.2d 236 (Vt. 1993). Ohio, however, went the other way, but has since been reversed. State v. Wyant 64 Ohio St. 3d 566, 597 N.E.2d 450 (1992), reversed and remanded 113 S.Ct 2954 (1993).

[53] See above note [18].

[54] Fla Stat SS775.085.

[55] 22 A.L.R.5th 261, |P6a.

[56] 22 A.L.R.5th 261, |P6a.

[57] 17 Cal App 4th 1328, 22 Cal Rptr 2d 560, review granted (Cal) 24 Cal Rptr 2d 663.

[58] Penal Code SS422.6 (Deering)

[59] Penal Code SS422.7 (Deering)

[60] And see People v. Aishman, 72 Cal. Rptr. 2d 311 (Ct. App. 1993); In re Joshua H. 17 Cal. Rptr. 2d 291 (Ct. App. 1993); 22 A.L.R.5th 261., 4.

[61] Where hate crimes, ethnic intimidation, or similar statutes come under First Amendment attack, many courts will balance the societal interest in such legislation against the purported infringement upon freedom of expression. The New York aggravated harassment statute - which makes it a crime for one to strike a victim due to the victim's race, colour, religion, or national origin - also was upheld against a First Amendment challenge. People v Grupe 141 Misc 2d 6, 532 NYS2d 815 (1988) (the court held that the defendant's anti-Semitic epithet could be introduced as "circumstantial evidence that his conduct was motivated by (defendant's perception of) the complainant's religion." Id. at 818). The American Law Reporter case note says that: "The court in that case commented that where speech and conduct are joined in a single course of action, First Amendment values must be balanced against competing societal interests. In such cases, the court declared, governmental regulation, or even prohibition, of First Amendment activity is sufficiently justified if: (1) it is within the constitutional power of the government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to furtherance of that interest." 22 A.L.R.5th 261

[62] Wisconsin v. Mitchell, 508 US , 113 S. Ct. 2194[1993] USSC 79; , 124 L.Ed 2d 436 (1993).

[63] See, e. g., Cal. Penal Code Ann. SS422.7 (West 1988 and Supp. 1993); Fla. Stat. SS775.085 (1991); Mont. Code Ann. SS45-5-222 (1992); Vt. Stat. Ann., Tit. 13, SS1455 (Supp. 1992).

Proposed federal legislation to the same effect passed the House of Representatives in 1992, H. R. 4797, 102d Cong., 2d Sess. (1992), but failed to pass the Senate, S. 2522, 102d Cong., 2d Sess. (1992)

[64] See, e. g., Brief for the National Asian Pacific American Legal Consortium et al. as Amici Curiae 5-11; Brief for the Anti-Defamation League et al. as Amici Curiae 4-7; Brief for Atlanta et al. as Amici Curiae 3-12.

[65] "In 1990, Congress enacted the Hate Crimes Statistics Act, Pub. L. 101-275, SS1(b)(1), 104 Stat. 140, codified at 28 U.S.C. SS534 (note) (1988 ed., Supp. III), directing the Attorney General to compile data "about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity." Pursuant to the Act, the Federal Bureau of Investigation reported in January 1993, that 4,558 bias-motivated offenses were committed in 1991, including 1,614 incidents of intimidation, 1,301 incidents of vandalism, 796 simple assaults, 773 aggravated assaults, and 12 murders. See Brief for the Crown Heights Coalition et al. as Amici Curiae 1A-77." [1993] USSC 79; 113 S. Ct. 2194; 1993 U.S. LEXIS 4024, 22; [1993] USSC 79; 124 L. Ed. 2d 436, , 447; 61 U.S.L.W. 4575.

In its first year, the FBI reported that 4,558 hate crimes were committed in 1991, but compiled its report from only 2,771 law-enforcement agencies, as compared to the over 16,000 from which it compiles its Uniform Crime Reports on other crimes.. Nevertheless, the total included 1,614 incidents of intimidation, 1,301 incidents of vandalism, 796 simple assaults, 773 aggravated assaults, and 12 murders. See Note: Hate Is Not Speech: A Constitutional Defense Of Penalty Enhancement For Hate Crimes. 106 Harv. L. Rev. 1314 (1993).

[66] Wisconsin. Stat. SS939.645 (1990). Similar language appears in the California Penal Code Ann. SS422.7; in Florida's Stat. SS775.085; in Montana's Code Ann. SS45-5-222; in Vermont's Stat. Ann. Tit. 13 SS1455

[67] See United States v. O'Brien, [1968] USSC 116; 391 U.S. 367, 376[1968] USSC 116; , 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968); accord, R. A. V., 505 U.S., at (slip op., at 7); Spence v. Washington, [1974] USSC 149; 418 U.S. 405, 409[1974] USSC 149; , 41 L. Ed. 2d 842, 94 S. Ct. 2727 (1974) [, 13] (per curiam); Cox v. Louisiana, [1965] USSC 6; 379 U.S. 536, 555[1965] USSC 6; , 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965).

[68] See Roberts v. United States Jaycees, [1984] USSC 171; 468 U.S. 609, 628[1984] USSC 171; , 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984) ("Violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact . . . are entitled to no constitutional protection"); NAACP v. Claiborne Hardware Co., [1982] USSC 185; 458 U.S. 886, 916[1982] USSC 185; , 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982) ("The First Amendment does not protect violence").

[69] [1993] USSC 79; 113 S. Ct. 2194; 1993 U.S. LEXIS 4024, 23; [1993] USSC 79; 124 L. Ed. 2d 436, , 448; 61 U.S.L.W. 4575.

[70] RCW 9A.36.080. The Legislature attached a severability clause in 1989. Laws of 1989, ch. 95, SS4.

[71] See above note [14].

[72] 122 Wash. 2d 192, 201.

[73] 122 Wash. 2d 192, 216; 858 P.2d 217, 230 The court also refused to uphold subsection (2) as a valid regulation of "fighting words". It ruled as follows. "However, a finding that a category of speech, such as fighting words, has low First Amendment value does not mean that the speech is wholly without constitutional protection. If a regulation of low value speech is content based, the court applies the same stringent standard of review that it applies to all other content-based regulations. See Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189, 197 (1983-1984). This general prohibition of content discrimination is premised on the danger that government may "effectively drive certain ideas or viewpoints from the marketplace" by regulating content. ... Contrary to the State's assertions, however, subsection (2) falls squarely within the prohibitions of R.A.V." (112 S. Ct. at 2545).

[74] Wash Rev Code SS9A.36.080(1).

[75] 122 Wash. 2d 192, 208; 858 P.2d 217, 226;referring to Brief of Amicus Curiae, at 15

[76] See previous note. Brief of Amicus Curiae, at 15.

[77] And see generally, L. BOLLINGER, THE TOLERANT SOCIETY, 57-58 (Clarendon Press. 1986); B. TOOHEY, TUMBLING DICE (1994) , extracted in The Weekend Australian, October 1-2, 1994 at 24.

[78] The issue is seen in the United States as a case for victim rights. See Delgado, Words That Wound: A Tort Action For Racial Insults, Epithets, And Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133, 136-39 (1982); Mari Matsuda, Public Response To Racist Speech: Considering The Victim's Story, 87 Mich. L. Rev. 2320, 2336-38 (1989).