Deciding When Speech Isn’t Speech


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.

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