The Supreme Court upheld the constitutionality of a state law that increased the sentence for a crime in which the defendant intentionally selected the victim on the basis of race, national origin, religion, sexual orientation, or similar characteristics.

In 1989 Todd Mitchell and several other young African Americans were discussing the white racism depicted in the film Mississippi Burning, and they became so angry that they attacked a white boy, leaving him unconscious for four days. Mitchell was convicted of aggravated assault, a crime for which Wisconsin law assigned a maximum sentence of two years’ imprisonment. However, because the state’s hate crime statute allowed for an enhanced punishment, Mitchell was sentenced to four years’ imprisonment.Speech, freedom of;Wisconsin v. Mitchell[Wisconsin v. Mitchell]

The main question before the Supreme Court was whether the hate crime statute violated the freedom of expression guaranteed by the First Amendment. The justices unanimously agreed that it did not. Speaking for the Court, Chief Justice William H. RehnquistRehnquist, William H.;Wisconsin v. Mitchell[Wisconsin v. Mitchell] argued that the statute simply punished overt conduct and that violence had never been protected by the concepts of symbolic speech and expressive conduct. Under the statute, moreover, motive plays the same role as it does under antidiscrimination laws, which had survived constitutional challenge. Recognizing that people have a right to “bigoted speech,” Rehnquist rejected the argument that the statute might have a chilling effect on such expressions, because only those persons contemplating acts of violence would need to worry about whether their speech might be used as evidence under the statute.

First Amendment balancing

First Amendment speech tests

R.A.V. v. City of St. Paul

Symbolic speech