Deciding When Speech Isn’t Speech
Introduction
In a brief and thoroughly unsatisfying examination of the issue last year, the Supreme Court upheld Wisconsin’s hate crimes law against constitutional attack. The law at issue in Wisconsin v. Mitchell’ provided an additional penalty for a defendant convicted of a crime where she “[i]ntentionally selects the person against whom the crime .. is committed .. because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person ….”
In approaching the legal issues, the Court outlined two unremarkable and well-established premises. First, the Court said that “a physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment.” In doing so, the Court recognized the difference between, for example, those who might hang the President in effigy and those who attempt to make their political statement by actually hanging the President. Protection of the former conduct as expressive activity cannot conceivably be regarded as including protection of the latter conduct.
Second, the Court reiterated that “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge.” This is, of course, an eminently sensible conclusion. To hold otherwise would institute a form of thought crime, permitting the state to punish an individual for having dangerous or morally reprehensible ideas. If the First Amendment has any reliable meaning, it must be that ideas, whether merely contemplated or actually expressed, should receive the highest level of protection that the Constitution can afford.
Suggested Reading
Attempted Regulation of Independent Group Speech
Remarks on the constitutional implications of limiting forms of campaign finance, particularly regarding political action committees and independent financing.
Citizens United and the Paradox of "Corporate Speech": From Freedom of Association to Freedom of the Association
"There is reason to believe that the fiction of the "corporate speaker" runs counter to foundational First Amendment principles."
Free Expression and Expressness
A uniform expressness requirement in speech law may improve notice, but is a poor fit in some categories. Extending it to threats doctrine has benefits and risks.
Free Speech Values, Hardcore Pornography and the First Amendment: A Reply to Professor Koppelman
Responding to Koppelman's critique, Weinstein argues he failed to address whether obscenity doctrine is aligned with larger free speech jurisprudence.
Free Speech and Pornography: A Response to James Weinstein
Contrary to the argument advanced by James Weinstein, the suppression of pornography infringes on values that lie at the heart of free speech.
Freedom of Speech as Mythology, or Quill Pen and Parchment Thinking In an Electronic Environment
Freedom of speech and freedom of press are myths and pornography is used to suit the private purposes of corporate interests that control mass media.
Public Employees' Free Speech Rights: Connick v. Myers Upsets the Delicate Pickering Balance
Connick upsets longstanding jurisprudence related to the free speech rights of employees in the workplace by giving employers considerable regulatory discretion
Violent Pornography: Degradation of Women versus Right of Free Speech: Introduction
Introduction to the Review of Law and Social Change's Colloquium, a tenth anniversary anniversary celebration for the journal