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.
Remarks on the constitutional implications of limiting forms of campaign finance, particularly regarding political action committees and independent financing.
"There is reason to believe that the fiction of the "corporate speaker" runs counter to foundational First Amendment principles."
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.
Responding to Koppelman's critique, Weinstein argues he failed to address whether obscenity doctrine is aligned with larger free speech jurisprudence.
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 and freedom of press are myths and pornography is used to suit the private purposes of corporate interests that control mass media.
Connick upsets longstanding jurisprudence related to the free speech rights of employees in the workplace by giving employers considerable regulatory discretion
Introduction to the Review of Law and Social Change's Colloquium, a tenth anniversary anniversary celebration for the journal