Wisconsin v. Mitchell Brief Amicus Curiae

    No. 92-515

In the Supreme Court
OF THE

United States

O c t o b er  T e r m , 1992 

S t a t e  o f  W is c o n s in ,
Petitioner, 

v.

TODD MITCHELL,

Respondent.

On Writ of Certiorari to the 
Wisconsin Supreme Court

BRIEF FOR THE LAWYERS' COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AS AMICUS CURIAE

Paul Brest*
814 Tolman Drive 
Stanford, California 94305 
(415) 723-4455

Alan Cope Johnston
Yonkel Goldstein
Kenneth A. Kuwayti
Douglas W. Phillips
Anna Erickson White
Marc J. Pemick
M orrison &  F oerster
755 Page Mill Road
Palo Alto, California 94304-1018
(415) 813-5600

* Denotes Counsel of Record

Herbert M. Wachtell 
Co-Chair

William H. Brown, HI 
Co-Chair

Norman Redlich 
Trustee

Barbara R. Amwine 
Thomas J. Henderson 
Sharon R. Vinick 
L awyers' C ommittee F or 

C ivil R ights U nder L aw 
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212



- 1  -

QUESTION PRESENTED

Does the First Amendment to the United States 
Constitution prohibit states from providing greater maximum 
penalties for crimes if a fact-finder determines that a criminal 
offender intentionally selected his or her crime victim because 
of the victim's race, color, religion or other specified status?



TABLE OF CONTENTS
___________________________________________________ Page

TABLE OF AUTHORITIES ..............................................  v

INTEREST OF THE AMICUS CURIAE ........................  1

SUMMARY OF ARGUMENT .........................................  2

ARGUMENT...............................      4

I. ENHANCING THE PUNISHMENT FOR A 
CRIME COMMITTED BECAUSE OF THE 
VICTIM'S RACE OR STATUS DOES NOT 
HAVE EVEN AN INCIDENTAL EFFECT
ON SPEECH .........................................     4

A. Government Regulation of Discriminatory 
Conduct Does Not Implicate Freedom of
Speech................        5

B. Weighing a Defendant's Selection of 
the Victim in Ascertaining a Criminal 
Sentence Is Consistent with Other
Criminal Statutes................................................ . 10

II. EVEN IF THE COURT WERE TO DETERMINE 
THAT SECTION 939.645 INCIDENTALLY 
AFFECTS EXPRESSION, IT DOES NOT
VIOLATE THE FIRST AMENDMENT ................... 16

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- Ill -

TABLE OF CONTENTS
(Continued)

Page

A. Statutes That Regulate Conduct Rather 
Than Speech Are Analyzed Under a Four-
Prong Test ..........................................................   17

B. Section 939.645 Fully Meets the
Four-Prong Test .........................................   17

1. The State of Wisconsin Clearly
Has the Power to Enact Laws 
Criminalizing Discrimination............ .. 18

2. Section 939.645 Furthers Several
Important Governmental Interests . . . . .  18

a. Section 939.645 Legitimately
Protects the Community's Sense 
That Status-Dependent Crimes 
Are Inherently More Reprehensible 
Because of Their M otivation............ .. . 19

b. Status-Dependent Violence Has an 
In Terr orem Effect on Members of 
the Victim's Community and Is
More Socially Disruptive ......................  20



-  IV -

TABLE OF CONTENTS
(Continued)

Page

c. Crimes Motivated by the Status 
of the Victim May Be More 
Difficult to Deter Than Other 
Crimes . .................... ..................... .. 21

3. Section 939.645 Is Unrelated to the
Suppression of Speech . ................................  22

4. The Incidental Restriction on Speech, 
if Any, Caused by the Wisconsin 
Statute Is No Greater Than Necessary 
to Further the Governmental Interests
Served by Section 939.645 ...........................  23

CONCLUSION 23



-  V -

TABLE OF AUTHORITIES
_________________________________________________Page(s)

Cases

Abrams v. United States,
250 U.S. 616 (1919)___ . . . . . . . ------- . . . . . . .  23

Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963)................................................ .. ■ 9

Barclay v. Florida,
463 U.S. 939 (1983) ............................... ................  19

Barnes v. Glen Theatre, Inc.,
_  U.S. 111 S. Ct. 2456 (1991) . . . . . . . -----  19

Boos v. Barry,
485 U.S. 312 (1988) ........................... .. ....................  11

Bray v. Alexandria Women's Health Clinic,
___U .S .___ , 61 U.S.L.W. 4080 (1993) . . . . ___  9

CISPES (Committee in Solidarity with the 
People o f El Salvador) v. Federal Bureau of 
Investigation,

770 F.2d 468 (5th Cir. 1985) . . . . . . . . . . . . . . .  11

Coker v. Georgia,
433 U.S. 584 (1977)___ _____ . . . 21



- vi  -

TABLE OF AUTHORITIES
(Continued)

Dawson v. Delaware,
_  U.S. 112 S. Ct. 1093 (1992) ........................  19

Ex Parte Virginia,
100 U.S. 339 (1880)...................... ............................  10

Griffin v. Breckenridge,
403 U.S. 88 (1971)...................................................... 7

Hishon v. King & S-palding,
467 U.S. 69 (1984) . ...................................................  5

Jacobson v. Massachusetts,
197 U.S. 11 (1905) .................... .................................  18

Jurek v. Texas,
428 U.S. 262 (1976) .................... ............................ .. 14

Mistretta v. United States,
488 U.S. 361 (1989) .................................................... 14

N.A.A.C.P. v. Alabama,
357 U.S. 449 (1958)....................................... ...........  6

New York Times Co. v. Sullivan,
376 U.S. 254 (1964)..................................................  9

Norwood v. Harrison,
413 U.S. 455 (1973)................................. ................  6

___ _____________________________________________ Page(s)



- vii -

TABLE OF AUTHORITIES
(Continued)

Page(s)

Paris Adult Theatre I v. Slaton,
413 U.S. 49 (1973).......................... .. 19

Pell v. Procunier,
417 U.S. 817 (1974) . . . . . . . . . . . . ___ _ _____  22

Personnel Administrator of Massachusetts v.
Feeney,

442 U.S. 256 (1979) . . . . ....... .................................  9

RA.V. v. City of St. Paul, Minnesota,
_  U.S. 112 S. Ct. 2538 (1992) ................. .. 16, 21

Roberts v. United States Jaycees,
468 U.S. 609 (1984) ...................................................  7

Runyon v. McCrary,
427 U.S. 160 (1976) ........................... 6 ,7

South Carolina v. Katzenbach,
383 U.S. 301 (1966) .................................. .. ............. 10

State v. Beebe,
680 P.2d 11 (Or. App. 1 9 8 4 )___ . . . . . . . . . . .  21

State v. Mitchell,
485 N.W.2d 807 (Wis. 1 9 9 2 ) ..................................  4, 9



-  V l l l  -

TABLE OF AUTHORITIES
(Continued)

Page(s)

United Brotherhood o f Carpenters & Joiners 
v. Scott,

463 U.S. 825 (1983)............ ...................................... 9

United States v. Erves,
880 F.2d 376, cert, denied, 493 U.S. 968
(11th Cir. 1989) ........................................................ 14

United States v. Griffin,
585 F. Supp. 1439 (M.D.N.C. 1983)...................... 13

United States v. Guest,
383 U.S. 745 (1966)...................... ............................  11

United States v. O'Brien,
391 U.S. 367 (1968)...................................................  3, 17

United States v. Wayne,
903 F.2d 1188 (8th Cir. 1990) ...............................  14

Statutes

U.S. Constitution
Amendment I ........................................................... passim
Amendment VIII .....................................................  14
Amendment XIII . . . . ............................................  10
Amendment XIV .....................................................  10, 14
Amendment X V ........................................................  10



-  ix -

TABLE OF AUTHORITIES
(Continued)

Page(s)

18 U.S.C.
Appendix 4, § 3A1.2 ............................................... 3, 14
§ 112 ........................... ........... . . . . . . . . . . . ____  11
§ 241 . . . . . . . . . . . . . . . . . . . . . ___ . . . . . . .  10, 11
§ 245 ...................................... .................................... 11, 12

42 U.S.C.
§ 1981 .................... .......................... .......................... 6
§ 1985(3) ................................................. ..................  7, 8, 9,

10
§ 2000e-2(a)(l) ..........................................................  5

Ala. Code § 13A-5-40(a)(5) (1992) ................. .. 13

Alaska Stat. § 12.55.125(1) (1992) .............................. 14

Ariz. Rev. Stat. Ann. § 13-703(10)
(The Michie Co. 1992) ................................ 14

Ark. Code Ann. § 5-10-101(a)(3) (1992) .................  14

Cal. Penal Code § 190.2(a)(7)
(Deering's 1992) ..................................... 14

Colo. Rev. Stat. § 18-3-107 (1992)___ . . . . . . . . .  14

Ha. Stat. Ann. § 921.141(5)(k) (1991) . . . . . . . . . .  13



TABLE OF AUTHORITIES
(Continued)

_________________________________________________ Fage(s)

Haw. Rev. Stat. § 706-660.2 
(The Michie Co. 1992) ............................................ 14

111. Rev. Stat. Ch. 38 para. 9-l(b)(l)
(Smith-Hurd 1979 & Supp. 1990) ........................  14

Iowa Code § 707.2 (1991)............................. .. 14

Kan. Stat. Arm. §§ 21-3409 & 21-3411 (1991) ___  14

Mass. Ann. Laws Ch. 279 § 69(a)(1)
(Lawyers Cooperative Publishing 1 9 9 3 ).............  14

Mich. Comp. Laws § 28.747(1)(3) (1989) ..............  14

N.Y. Penal Law § 125.27(l)(a)
(Lawyers Cooperative 1992) ......................... 14

Nev. Rev. Stat. § 200.033(7)
(The Michie Co. 1991) ............................................ 14

Ohio Rev. Code Ann. § 2929.04(a)(6)
(Baldwin's 1992)........................................................  14

Or. Rev. Stat. § 163.095(2)(a) (1991) ......................... 14

42 Pa. Cons. Stat. § 9711(d)(1) (1991).......... ...........  14

Term. Code Arm. § 39-13-204(9) (1992) . . . . ___  14

-  X -



-  XI -

TABLE OF AUTHORITIES
(Continued)

Page(s)

Tex. Penal Code Arm. § 19.03(a)(1) (1 9 9 3 )............  14

Utah Code Ann. § 76-5-202(k)
(The Michie Co. 1992) ............................................  14

Va. Code Ann. § 18.2-31(6)
(The Michie Co. 1992) . ...................... ..................  14

Wash. Rev. Code § 10.95.020(1) (1991) ....................  14

Wis. Stat. § 939.645 (1992 Supp.) . . ......................... passim

Other Authorities

B. Levin, Bias Crimes: A Theoretical & Practical 
Overview, 4 Stan. L. & Pol'y Rev. 165, 166-168 
(forthcoming 1993) ................................................... 18

National Institute Against Prejudice & Violence,
The Ethnoviolence Project, Institute
Report No. 2, 5 (1986) ................. .................. . . . .  21

J. Weinstein, First Amendment Challenges to 
Hate Crime Legislation: Where's the Speech?,
11 Criminal Justice Ethics 3, (forthcoming
1992) ...................... ................................... ........... .. . 20



-  xii -

TABLE OF AUTHORITIES
(Continued)

Page(s)

C. Wexler and G. Marx, When Law And 
Order Works, 32 Crime & Delinquency 
205 (1986) ..................................................................... 22



IN THE

Supreme Court of the United States
O c t o b er  T e r m , 1992

No. 92-515

S t a t e  o f  W is c o n s in ,
Petitioner,

v.
T o d d  M it c h e l l ,

Respondent.

On Writ of Certiorari to the 
Wisconsin Supreme Court

BRIEF FOR THE LAWYERS' COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AS AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

The Lawyers' Committee for Civil Rights under Law 
("the Lawyers' Committee") submits this brief as amicus curiae 
in support of Petitioner, the State of Wisconsin.

The Lawyers' Committee is a nationwide civil rights 
organization that was formed in 1963 by leaders of the 
American Bar, at the request of President Kennedy, to provide 
legal representation to Blacks who were being deprived of their 
civil rights. The national office of the Lawyers' Committee and 
its local affiliates have represented the interests of Blacks, 
Hispanics and women in hundreds of class actions relating to 
employment discrimination, voting rights, equalization of



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municipal services and school desegregation. Over one 
thousand members of the private bar, including former 
Attorneys General, former presidents of the American Bar 
Association and other leading lawyers, have assisted the 
Lawyers' Committee in such efforts.

This case raises issues of great importance to the clients 
served by this amicus curiae. The Lawyers' Committee views 
section 939.645 as an anti-discrimination statute, which, if 
upheld, will help to protect individual rights. Anti- 
discrimination criminal laws are a vital link in the chain of 
legislative and law enforcement efforts to safeguard the civil 
rights of individuals. The Wisconsin legislature, in enacting 
section 939.645, has adopted this approach to combat the 
increasing incidence of discriminatory criminal behavior. The 
legislature did so while taking great care not to infringe upon 
guaranteed First Amendment rights. The statute involved in 
the present case is substantially similar to several existing civil 
rights and criminal statutes which are consistent with the First 
Amendment. Section 939.645 should therefore be upheld on 
analogous grounds.

SUMMARY OF ARGUMENT

The Wisconsin Penalty Enhancement Statute which 
comes before the Court today, section 939.645(l)(b), Stats. 1989- 
90, increases the applicable maximum sentence in cases where 
the defendant selected a victim based on the victim's race or 
other protected status. No First Amendment rights are 
implicated by this statute because it is aimed at discriminatory 
conduct, not speech. The operation of the statute is directly 
analogous to the operation of civil rights laws which penalize 
discrimination in employment, education, and public 
accommodations. Furthermore, enhancing a penalty based



- 3 -

upon the defendant's selection of a particular victim is 
consistent both with general principles of criminal law and 
existing criminal statutes. The Federal Sentencing Guidelines, 
for example, provide for an increased penalty for crimes 
intentionally directed at a government officer or employee. 
18 U.S.C. Appendix 4, § 3A1.2. Section 939.645 should be 
upheld on precisely the same grounds as the numerous anti- 
discrimination and criminal statutes which define an offense or 
punishment in relation to a victim's status. The Court should 
reaffirm its long-standing teaching that neither discriminatory 
intent nor discriminatory selection raises any First Amendment 
issues.

Even if the Court were to conclude that the 
discriminatory selection of a victim on the basis of the victim's 
protected status involves expression, the Wisconsin statute 
should, nonetheless, be upheld. Under United States v. O'Brien, 
391 U.S. 367 (1968), the state's interest in regulating expressive 
conduct must be balanced against the individual's right to 
freedom of expression. Here the state unquestionably has 
police power to regulate public safety. The Wisconsin 
legislature could reasonably have concluded that status- 
dependent crimes, which the statute seeks to regulate, are 
especially reprehensible, that they produce a greater and more 
disruptive injury, and that they are particularly difficult to 
deter; consequently, there can be no question that the 
legislature was acting within its purview when it enacted this 
statute. Furthermore, the law is narrowly tailored to address 
victim selection; any effect that it might have on expressive 
conduct is incidental at best. Thus, even under the O'Brien 
test, the decision of the Wisconsin Supreme Court should be 
reversed and the constitutionality of the statute upheld.



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ARGUMENT

I. ENHANCING THE PUNISHMENT FOR A CRIME 
COMMITTED BECAUSE OF THE VICTIM'S RACE OR 
STATUS DOES NOT HAVE EVEN AN INCIDENTAL 
EFFECT ON SPEECH.

Section 939.645(l)(b), Stats. 1989-90, subjects a criminal 
defendant to an enhanced penalty if the defendant 
"intentionally 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 . . . "  It is the commission of a crime against a person 
selected because of her status that section 939.645 punishes.1 
The statute punishes only conduct.

To come within its reach, section 939.645 plainly requires 
only (1) that the defendant commit a crime against a victim, 
and (2) that the defendant have intentionally selected that 
victim because of that victim's protected status. The statute is 
not concerned with the actor's speech, or with her views about 
the victim or the group to which the victim belongs. Like all 
other anti-discrimination laws, it is concerned only with 
whether the actor targeted the victim because of the victim's 
race or other status.

1 See State v. Mitchell, 485 N.W.2d 807, 820 (Wis. 1992) (Bablitch, ]., 
dissenting).



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A. Government Regulation of Discriminatory Conduct
Does Not Implicate Freedom of Speech.

Section 939.645 closely parallels civil rights laws which 
impose penalties for discrimination in employment, education, 
and public accommodations. Civil rights laws penalize 
otherwise permissible conduct (e.g., refusing to employ or rent 
an apartment to a person) when targeted against individuals 
who are selected because of their race or other protected status. 
By the same token, section 939.645 entrances the penalty for 
engaging in impermissible conduct when targeted against 
individuals who are selected because of their race or other 
protected status. Title VII of the Civil Rights Act of 1964, for 
example, bars discrimination "with respect to [the] 
compensation, terms, conditions, or privileges of employment, 
because of [an] individual's race, color, religion, sex, or national 
origin." 42 U.S.C. § 2000e-2(a)(l) (emphasis added). Similarly, 
the Wisconsin statute imposes more severe sentences where a 
criminal offender selects his victim "because of" the victim's 
race or other protected status.

This Court has rejected the argument that Title VII 
impinges on First Amendment guarantees of free speech. In 
Hishon v. King & Spalding, 467 U.S. 69 (1984), the Court held 
that a female associate in a law firm could state a claim against 
the firm under Title VII by alleging she was denied equal 
consideration for partnership, because such consideration was 
one of her "terms, conditions, or privileges of employment." 
The Court dismissed the law firm's contention that such a 
holding would "infringe constitutional rights of expression or 
association," because the law firm could not show how its right 
to free speech "would be inhibited by a requirement that it 
consider petitioner for partnership on her merits." 467 U.S. at 
78.



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The Court reached a similar conclusion in Runyon v. 
McCrary, 427 U.S. 160 (1976). Runyon rejected a First 
Amendment challenge to 42 U.S.C. section 1981, which 
guarantees, inter alia, that persons of all races in the United 
States shall have equal rights to make and enforce contracts. 
Runyon held that section 1981 bars a private, non-sectarian 
school from selecting students on the basis of race and that, as 
so applied, the statute does not impinge upon First 
Amendment rights to freedom of association. The Runyon 
Court recognized that the First Amendment provides a right 
"'to engage in association for the advancement of beliefs and 
ideas, . and that a right of association "is protected because 
it promotes and may well be essential to the '[effective 
advocacy of both public and private points of view, 
particularly controversial ones' that the First Amendment is 
designed to foster." Id. at 175, quoting N.A.A.C.P. v. Alabama, 
357 U.S. 449, 460 (1958). While private schools may advocate 
a belief in school segregation,

it does not follow that the practice of excluding 
racial minorities from such institutions is also 
protected by the same principle. As the Court 
stated in Norwood v. Harrison, 413 U.S. 455 (1973),
"the Constitution . . . places no value on 
discrimination," id., at 469, and while "[ilnvidious 
private discrimination may be characterized as a 
form of exercising freedom of association 
protected by the First Amendment. . .  it has 
never been accorded affirmative constitutional 
protections. . . ." Id., at 470. In any event, as the 
Court of Appeals [in Runyon] noted, "there is no 
showing that discontinuance o f [the] discriminatory 
admission practices would inhibit in any way the 
teaching in these schools of any ideas or dogma.”



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Runyon at 176 (emphasis added).

Likewise, Respondent cannot show that the additional 
penalty imposed on him because of his race-based choice of a 
victim in any way inhibits his freedom of speech. Respondent 
was at liberty, under section 939.645, to hurl even the most 
offensive racial invectives at his victim. Respondent's 
enhanced penalty, however, stems from his hurling punches 
rather than words. "[VJiolence or other types of potentially 
expressive activities that produce special harms distinct from 
their communicative impact. . .  are entitled to no 
constitutional protection." Roberts v. United States Jaycees, 468 
U.S. 609, 628 (1984), citing Runyon, supra, 427 U.S. at 175-176 
(Minnesota statute requiring Jaycees to accept women as full 
members did not abridge the male members' freedom of 
expressive association).

Respondent essentially claims that the government may 
not impose a penalty on him simply because of his 
discriminatory intent. This contention is not only at odds with 
the cases cited above, but also with the Court's interpretation 
of 42 U.S.C. section 1985(3), an interpretation which was 
adopted over twenty years ago and reaffirmed earlier this year. 
In Griffin v. Breckenridge, 403 U.S. 88 (1971), the Court clarified 
the scope of section 1985(3), which provides a civil remedy for 
conspiracy to deprive any person of the equal protection of the 
laws.2 The broad sweep of the initial draft of this

2 42 U.S.C. § 1985(3) provides:

If two or more persons in any State or Territory 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

(continued...)



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Reconstruction era statute was narrowed by a subsequent 
amendment, which "centered entirely on the animus or 
motivation that would be required." Id. at 100. Thus:

The constitutional shoals that would He in the 
path of interpreting § 1985(3) as a general federal 
tort law can be avoided by giving full effect to 
the congressional purpose—by requiring, as an 
element of the cause of action, the kind of 
invidiously discriminatory motivation stressed by 
the sponsors of the limiting amendment. . . .  The 
language requiring intent to deprive of equal 
protection, or equal privileges and immunities, 
means that there must be some racial, or perhaps 
otherwise class-based, invidiously discriminatory 
animus behind the conspirators' action.

Id. at 102 (emphasis in original).

Discriminatory animus, therefore, is both an essential 
and a constitutionally permissible element of section 1985(3). 
The Court reaffirmed this principle earlier this year when it 
held that an action to enjoin protestors from obstructing access

2(...continued)
privileges and immunities under the laws . . . [and] in any case of 
conspiracy set forth in this section, if one or more persons engaged 
therein do, or cause to be done, any act in furtherance of the object 
of such conspiracy, whereby another is injured in his person or 
property, or deprived of having and exercising any right or 
privilege of a citizen of the United States, the party so injured or 
deprived may have an action for the recovery of damages, 
occasioned by such injury or deprivation, against any one or more 
of the conspirators.



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to abortion clinics fell outside the scope of section 1985(3). The 
Court found that the alleged conspirators lacked the 
discriminatory motivation required by section 1985(3):

"Discriminatory purpose . . . implies more than 
intent as volition or intent as awareness of 
consequences. It implies that the decisionmaker 
. . . selected or reaffirmed a particular course of 
action at least in part because of/ not merely 'in 
spite of/ its adverse effects upon an identifiable 
group."

Bray v. Alexandria Women's Health Clinic, _ _  U.S. ___,
61 U.S.L.W. 4080,4082 (1993) quoting Personnel Administrator of 
Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). See also United 
Brotherhood o f Carpenters & Joiners v. Scott, 463 U.S. 825, 838 
(1983) (holding that section 1985(3) does not reach conspiracies 
"motivated by commercial or economic animus").3

While the preceding discussion has focused on federal 
civil rights legislation, the same principles apply to state fair 
employment, fair housing, and similar laws. Many states have

3 The Wisconsin Supreme Court distinguished civil rights laws from 
section 939.645 in part on the grounds that section 939.645 provides 
for criminal penalties, as opposed to civil sanctions. State v. Mitchell, 
485 N.W.2d 807, 817 (Wis. 1992). The Wisconsin Supreme Court cited 
no authority for this distinction, and this Court has never endorsed it. 
Indeed, because the standard of proof for conviction under criminal 
laws is higher than that for judgments under civil laws, and because 
the fines available under civil laws may be much greater than under 
criminal laws, a civil statute affecting free speech may be "'a form of 
regulation that creates hazards to protected freedoms markedly 
greater than those that attend reliance upon criminal law.'" New York 
Times Co. v. Sullivan, 376 U.S. 254, 277-278 (1964) quoting Bantam Books, 
Inc. v. Sullivan, 372 U.S. 58, 70 (1963).



- 10-

had such laws on the books for several decades, and it would 
be surprising, to say the least, if they were to be held invalid 
under the First Amendment as applied to the states through 
the Fourteenth Amendment.4

B. Weighing a Defendant's Selection of the Victim in 
Ascertaining a Criminal Sentence Is Consistent with 
Other Criminal Statutes.

Section 939.645 is consistent with criminal statutes as 
well. For example, 18 U.S.C. section 241, a criminal 
counterpart to 42 U.S.C. section 1985(3), makes it a crime to 
conspire to intimidate a person from exercising her 
constitutional rights.5 As this Court has held, to fall under

4 Of course, federal anti-discrimination laws enjoy a special status 
under the Constitution. See Ex Parte Virginia, 100 U.S. 339, 345 (1880) 
(holding that the Thirteenth and Fourteenth Amendments, "were 
intended to be, what they really are, . . . enlargements of the power of 
Congress"); South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966) 
(applying a similar interpretation to legislation enacted under the 
Fifteenth Amendment). Hence, even if this Court were to hold that 
section 939.645 conflicted with the First Amendment, it would not be a 
determination that federal anti-discrimination laws authorized by the 
Thirteenth, Fourteenth, and Fifteenth Amendments were similarly 
unconstitutional.

5 That section provides, in the relevant part:

If two or more persons conspire to injure, oppress, 
threaten, or intimidate any citizen in the free exercise or 
enjoyment of any right or privilege secured to him by the 
Constitution or laws of the United States, or because of his 
having so exercised the same;

(continued...)



-11  -

section 241, a defendant "must act with a specific intent to 
interfere with the federal rights in question." United States v. Guest, 
383 U.S. 745, 753-54 (1966). For example:

[A] conspiracy to rob an interstate traveler would 
not, of itself, violate § 241. But if the predominant 
purpose of the conspiracy is to impede or prevent 
the exercise of the right of interstate travel, or to 
oppress a person because of his exercise of that 
right, then . . . the conspiracy becomes a proper 
object of the federal law under which the 
indictment in this case was brought.

Id. at 760 (emphasis added).

While the statute makes it a crime to conspire 
specifically to intimidate a victim from exercising her rights, it 
does not follow that any particular message is being 
proscribed. See CISPES (Committee in Solidarity with the People 
of El Salvador) v. Federal Bureau o f Investigation, 770 F.2d 468,474 
(5th Cir. 1985) (holding that 18 U.S.C. § 112(b)(l-2), which, like 
section 241, proscribes intimidating persons in certain status- 
based categories, does not condemn a particular message, but 
prohibits threatening or intimidating conduct); see also Boos v. 
Barry, 485 U.S. 312, 323-26 (1988) (stating that 18 U.S.C. § 112 
is content neutral and narrowly tailored to meet the 
government's "vital interest in complying with international 
law").

5(...continued)
They shall be fined not more than $10,000 or imprisoned 

not more than ten years, or both.



- 12-

Title 18 U.S.C. section 245 is yet another example of a 
criminal statute which proscribes the deliberate targeting of 
protected groups as one of its elements.6 Among its other

6 That statute states, in part:

Whoever, whether or not acting under color of law, by 
force or threat of force willfully injures, intimidates or 
interferes with, or attempts to injure, intimidate or 
interfere with—

*  * *  *

(2) any person because of his race, color, religion or
national origin and because he is or has been—

(A) enrolling in or attending any public school 
or public college;

(B) participating in or enjoying any benefit, 
service . . .  or activity provided or administered 
by any State or subdivision thereof;

(C) applying for or enjoying employment, or any 
perquisite thereof, by any private employer or any 
agency of any State or subdivision thereof . . .;

(D) serving or attending upon any court of any 
State in connection with possible service, as 
a grand or petit juror,

(E) traveling in or using any facility of interstate 
commerce, or using any vehicle, terminal or facility of 
any common carrier by motor, rail, water or air;

(F) enjoying the goods, services, facilities, privileges, 
advantages, or accommodations of any inn, hotel. . . .

* * *
shall be fined not more than $1,000 or imprisoned not 
more than one year or both . . . .

18 U.S.C.A. § 245(2).



- 13-

provisiorts, it seeks to protect a potential victim who is selected 
for intimidation, threats, injury, or interference because of her 
race, color, religion or national origin and because she is 
engaging in any of various enumerated acts (such as attending 
a public school, engaging in interstate commerce, or staying at 
a hotel). At least one lower court decision, United States v. 
Griffin, 585 F. Supp. 1439 (M.D.N.C. 1983), has specifically 
focused on the scienter requirement of this statute. Far from 
holding that the specific intent required by the statute violates 
the constitution, the court concluded that the required specific 
intent to interfere with federal rights7 saves the statute from 
a constitutional attack based on vagueness. Id. at 1444.

Moreover, imposing a different punishment on the 
defendant in this case because he deliberately selected a victim 
of a particular race is entirely consistent with basic American 
criminal law principles. Courts routinely consider the intended 
choice of or effect on a victim both in categorizing particular 
crimes and in determining appropriate sentences.

Section 939.645 applies where the victim is selected 
because she is a member of a class specified by the statute. 
Other criminal statutes similarly enhance the penalty of a 
criminal offender based on the victim's membership in a 
specified class.8 State capital crime statutes typically list

7 Specifying that a defendant must have the specific intent to 
interfere with federal rights provided Congress with the authority to 
enact this legislation. Of course, states acting pursuant to their police 
powers have much broader authority to regulate criminal conduct.

8 It is commonplace for criminal statutes to take into account a 
victim's status when defining or punishing a crime. See e.g., Ala.
Code § 13A-5-40(a)(5) (1992); Ha. Stat. Ann. § 921.141(5)(k) (1991);

(continued...)



- 14 -

selection of a police officer as a victim as an aggravating factor 
which may justify the imposition of the death penalty/ and the 
Court has endorsed this criterion. See e.g., Jurek v. Texas, 428 
U.S. 262, 276 (1976) (upholding Texas' capital sentencing 
procedures under Eighth and Fourteenth Amendments). 
Similarly, the Federal Sentencing Guidelines provide for an 
enhanced penalty for offenses committed against a government 
officer or employee when the offense "was motivated by such 
status." 18 U.S.C. Appendix 4, § 3A1.2 (emphasis added).9

8(...continued)
Mass. Ann. Laws Ch. 279 § 69(a)(1) (Lawyers Cooperative Publishing 
1993); Or. Rev. Stat. § 163.095(2)(a) (1991); 42 Pa. Cons. Stat.
§ 9711(d)(1) (1991). Moreover, many such laws which include victim 
status as an element also include criminal intent to select a victim 
based on her status as a necessary element. See e.g., Alaska Stat.
§ 12.55.125(1) (1992); Ariz. Rev. Stat. Ann. § 13-703(10) (The Michie Co. 
1992); Ark. Code Ann. § 5-10-101 (a)(3) (1992); Cal. Penal Code 
§ 190.2(a)(7) (Deering's 1992); Colo. Rev. Stat. § 18-3-107 (1992); Haw. 
Rev. Stat. § 706-660.2 (The Michie Co. 1992); 111. Rev. Stat. Ch. 38 
para. 9-l(b)(l) (Smith-Hurd 1979 & Supp. 1990); Iowa Code § 707.2 
(1991); Kan. Stat. Ann. §§ 21-3409 & 21-3411 (1991); Mich. Comp. Laws 
§ 28.747(1)(3) (1989); Nev. Rev. Stat. § 200.033(7) (The Michie Co.
1991); N.Y. Penal Law § 125.27(l)(a) (Lawyers Cooperative 1992); Ohio 
Rev. Code Ann. § 2929.04(a)(6) (Baldwin's 1992); Term. Code Ann.
§ 39-13-204(9) (1992); Tex. Penal Code Ann. § 19.03(a)(1) (1993); Utah 
Code Ann. § 76-5-202(k) (The Michie Co. 1992); Va. Code Ann. § 18.2- 
31(6) (The Michie Co. 1992); Wash. Rev. Code § 10.95.020(1) (1991).

9 The Federal Sentencing Guidelines have withstood numerous 
attacks on their constitutionality. In Mistretta v. United States, 488 U.S, 
361, (1989), this Court affirmed that the guidelines neither violate the 
separation of powers doctrine nor constitute an excessive delegation of 
legislative power. Other courts have likewise upheld the Guidelines 
against various constitutionally based attacks. See e.g., United States v. 
Ewes, 880 F.2d 376, cert, denied, 493 U.S. 968 (11th Cir. 1989) (proce­
dural and substantive due process); United States v. Wayne, 903 F.2d 
1188 (8th Cir. 1990) (constitutionally mandated standard of proof). To

(continued...)



- 15 -

Respondent contends that a statute which penalizes the 
selection of a victim based on that victim's membership in a 
particular class must violate the First Amendment. Under this 
view, the choice of a victim because she is a police officer, for 
example, would also constitute expression protected by the 
First Amendment. Unless Respondent can provide a 
principled distinction between these statutes and 
section 939.645, every state or federal statute which provides 
stiffer penalties for crimes committed with the intent to injure 
individuals who are members of particular classes must violate 
the right to free expression. Respondent, however, cannot 
provide any support for this position.

In summary, the language of section 939.645 is clearly 
directed at discriminatory conduct. To run afoul of the statute, 
one need only be guilty of discriminatory conduct—the statute 
is not concerned with the motivations or beliefs which led to 
the discriminatory choice of victim. For example, a rapist who 
victimizes southeast Asian women might do so because he 
believes that they are less likely to report his crimes to the 
police. Or, a mugger who only attacks Jews might do so 
because he thinks that they have more money than others. 
These criminals, if convicted of their crimes, can have their 
penalties enhanced under section 939.645. Both criminals 
"intentionally select" their victims "because of" their protected 
status—the first to avoid detection and the second to increase 
his plunder. On the other hand, a bigot who shouts a string 
of racial epithets at an African-American is outside of the

9(...continued)
our knowledge, no case has challenged the constitutionality of the 
Federal Sentencing Guidelines on First Amendment grounds.



- 1 6 -

statute's reach; her expression is completely unaffected by the 
Wisconsin statute.10

The First Amendment prevents the government from 
driving "'certain ideas or viewpoints from the marketplace.'" 
R.A.V. v. City o f St. Paul, Minnesota, supra, at 2545 n.9 (citations 
omitted). Section 939.645 does not drive any ideas from the 
marketplace nor does it strive to; it only seeks to drive status- 
based crimes from Wisconsin's streets. The marketplace of 
ideas still remains open to KECK meetings and Nazi rallies.

II. EVEN IF THE COURT WERE TO DETERMINE THAT 
SECTION 939.645 INCIDENTALLY AFFECTS EXPRES­
SION, IT DOES NOT VIOLATE THE FIRST AMEND­
MENT.

Even if this Court were to determine that respondent's 
violent assault on Matthew Riddick contained a sufficient 
communicative element to bring it within the scope of the First

10 In R.A.V. v. City o f St. Paul, Minnesota,__U .S.__ , 112 S. Ct. 2538
(1992), this Court found a St. Paul ordinance which prohibited 
"fighting words" that contain "messages of 'bias-motivated' hatred" 
facially unconstitutional because it prohibited otherwise permissible 
speech solely on the basis of the subjects that the speech addressed.
Id. at 2548. R.A.V. is distinguishable from the instant case on at least 
two grounds.

First, the Wisconsin statute is aimed at discriminatory conduct, 
not expression. The St. Paul ordinance directly targeted "fighting 
words", which, although outside the normal ambit of First 
Amendment protection, still constitute a form of expression. See id. at 
2543-44. Second, unlike the St. Paul ordinance, the Wisconsin statute 
evinces no hostility or favoritism to any particular viewpoint. Rather, 
the statute targets discriminatory conduct, without regard to the 
viewpoint that inspired it.



- 17-

Amendment, section 939.645 is unrelated to the suppression of 
expression and readily meets the test enunciated in United 
States v. O'Brien, 391 U.S. 367 (1968).

A. Statutes That Regulate Conduct Rather Than Speech
Are Analyzed Under a Four-Prong Test.

Under well-settled law, the government has a freer hand 
in restricting conduct combining "speech" and "nonspeech" 
elements than it has in restricting pure speech. O'Brien, 
391 U.S. at 376. Where speech and conduct are combined in 
one course of action, the state's interests in regulating the 
conduct in question must be balanced against First 
Amendment rights. In such cases, the statute does not violate 
the First Amendment if: (1) the regulation falls within the 
constitutional power of the government; (2) the regulation 
furthers "an important or substantial governmental interest;" (3) 
the regulation 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 the 
furtherance of that interest.” Id. at 376-377.

B. Section 939.645 Fully Meets the Four-Prong Test.

Because section 939.645 is narrowly tailored to serve 
several legitimate and compelling governmental interests 
which are not aimed at suppressing speech, it does not violate 
the First Amendment.



- 18 -

1. The State of Wisconsin Clearly Has the Power to 
Enact Laws Criminalizing Discrimination.

The power of the State of Wisconsin to punish criminal 
conduct is well established. The legislature clearly has the 
power to enact laws that are necessary to promote the public 
health, safety and morals. See Jacobson v. Massachusetts, 
197 U.S. 11, 25 (1905). Here, in view of the increasing 
incidence of reported crimes where victims are targeted based 
on their status11 and the particular danger of widespread civil 
unrest resulting from such acts, the Wisconsin state legislature 
was well within its power to enact section 939.645.

2. Section 939.645 Furthers Several Important Govern­
mental Interests.

The governmental interests served by section 939.645 are 
compelling. The State of Wisconsin has a substantial interest 
in penalizing crimes targeted at members of certain groups 
more than other crimes because, as elaborated below, the 
legislature could find that they are more reprehensible and 
socially disruptive, that they have the effect of terrorizing a 
community, and that they are harder to deter.

11 B. Levin, Bias Crimes: A Theoretical & Practical Overview, 4 Stan. 
L. & PoTy Rev. 165, 166-168 (forthcoming 1993).



- 19 -

a. Section 939.645 Legitimately Protects the 
Community's Sense That Status-Dependent 
Crimes Are Inherently More Reprehensible 
Because of Their Motivation.

The Wisconsin legislature could reasonably have 
concluded that status-dependent crimes are inherently more 
reprehensible due to the status-dependent motivation. That 
the State of Wisconsin has a legitimate interest in enforcing the 
community's sense of morality is indisputable. This Court has 
repeatedly upheld the state's power to do so. For example, 
just two years ago, this Court upheld a public indecency 
statute under the O'Brien test because it furthered "a 
substantial government interest in protecting order and
morality." Barnes v. Glen Theatre, In c .,__U.S. ___, 111 S. Ct.
2456, 2462 (1991). See also Paris Adult Theatre I v. Slaton, 413 
U.S. 49 (1973).

Moreover, considering the relative evil of an act in 
determining the degree of punishment has long been viewed 
as an appropriate method of determining punishment. In 
Barclay v. Florida, 463 U.S. 939, 949 (1983), for example, the 
Court held that the defendant's desire to start a race war when 
he indiscriminately murdered a white hitchhiker was relevant 
to showing aggravating circumstances. As recently as last
year, in Dawson v. Delaware, _  U .S .__, 112 S. Ct. 1093, 1097
(1992), the Court reaffirmed its holding in Barclay that in 
capital sentencing the judge may consider "evidence of [the 
defendant's] racial intolerance and subversive advocacy where 
such evidence was related to the issues involved." In other 
words, where a criminal act has been committed, an inquiry 
into the malevolence of defendant's motivations, including 
discriminatory animus, is appropriate so that a fitting sentence 
can be set.



- 2 0 -

In the instant case, of course, a criminal assault was 
committed. Absent that assault, defendant's apparent belief 
that whites are appropriate targets for racial violence would be 
completely protected. Given that assault, however, a trial 
court would be fully justified in taking into account that the 
victim was selected because of his race. A legislature can 
certainly do the same in enacting penalty enhancement 
provisions.

b. Status-Dependent Violence Has an In Terrorem 
Effect on Members of the Victim's Community 
and Is More Socially Disruptive.

The extra punishment given to perpetrators of status- 
dependent crimes is justified by the extra harm that status- 
dependent crimes cause. Status-dependent violence transforms 
the injury into a different type of harm which is more 
damaging to the victim than the same violent act lacking 
status-dependent motivation. In addition to the injury inflicted 
on the victim, these crimes have an in terrorem effect on 
members of the victim's community. As one commentator 
observed, "The effect of Kristallnacht on German Jews was 
greater than the sum of the damage of buildings and assaults 
on individual victims." J. Weinstein, First Amendment 
Challenges to Hate Crime Legislation: Where's the Speech?,
11 Criminal Justice Ethics 3 (forthcoming 1992).

Not only are status-based offenses more damaging than 
the same offense lacking such motivation because they 
terrorize the victim and the community, they are also more 
damaging because they are more socially disruptive. Take, for 
example, the disturbance caused by the racially charged 
Rodney King beating. Alternatively, consider the disruption 
that occurred when a Korean grocer shot and killed a black girl



- 21 -

in Los Angeles. As one court observed: "Such confrontations 
. . . readily—and commonly do—escalate from individual 
conflicts to mass disturbances. That is a far more serious 
potential consequence than that associated with the usual run 
of assault cases." State v. Beebe, 680 P.2d 11,13 (Or. App. 1984).

Calculating the magnitude of a criminal penalty based 
on the terroristic or disruptive effect the crime has on the 
victim or community is in accordance with well-established 
principles. In Coker v. Georgia, 433 U.S. 584, 598 (1977), for 
example, this Court explained that rape is a crime deserving 
serious punishment because, among other harmful 
consequences, rape can "inflict mental and psychological 
damage" on the victim and, in addition, "undermine[] the 
community's sense of security." Similarly, in R.A.V. v. City of 
St. Paul, Justice Stevens noted that "[threatening someone 
because of her race or religious beliefs may cause particularly 
severe trauma . . . ; such threats may be punished more 
severely than threats against someone based on, say, his 
support of a particular athletic team." 112 S. Ct. at 2561 
(Stevens, J. concurring).

c. Crimes Motivated by the Status of the Victim 
May Be More Difficult to Deter Than Other 
Crimes.

The Wisconsin statute enhances penalties because status- 
based crimes need to be deterred even more than non-status- 
based crimes. The State of Wisconsin could reasonably 
conclude that conventional criminal statues are not effective in 
deterring status-dependent crimes. Victims of status- 
dependent crimes are often exposed to a series of attacks and 
their assaulters are more likely to repeat their attacks than non­
status-based assaulters. National Institute Against Prejudice &



- 22 -

Violence, The Ethnoviolence Project, Institute Report No. 1, 5 
(1986); C. Wexler and G. Marx, When Law And Order Works, 32 
Crime & Delinquency 205 (1986). Deterrence is clearly a 
legitimate justification for determining the degree of 
punishment. See Pell v. Procunier, 417 U.S. 817, 822 (1974).

Racial, ethnic and religious-based criminal acts have 
divided our society throughout history. Such conduct is not 
merely a relic of the past. In addition to the recent ethnic and 
racial disruption in our own nation, every day the newspapers 
report ethnic violence throughout the world—Protestants and 
Catholics in Northern Ireland; Serbs, Croats, and Bosnians in 
former Yugoslavia; Kurds and Sunni Muslims in Northern 
Iraq. Surely, it is within the power of the states to deter such 
divisive violence in our own nation.

3. Section 939.645 Is Unrelated to the Suppression of 
Speech.

As the above justifications for the statute illustrate, the 
State of Wisconsin's interest in punishing crimes motivated by 
the victim's status are unrelated to the suppression of speech. 
Quite to the contrary, the state's aim in enacting section 
939.645 is solely to combat the devastating effects of violent 
status-dependent crimes. Protecting society from crimes 
targeted at individuals because of their membership in 
identifiable groups is a separate and distinct goal, unrelated to 
free speech rights.



- 23 -

4. The Incidental Restriction on Speech, if Any, 
Caused by the Wisconsin Statute Is No Greater 
Than Necessary to Further the Governmental 
Interests Served by Section 939.645.

The Wisconsin legislature has narrowly tailored 
section 939.645 so that the statute only addresses criminal acts 
directed at individuals because of their race or other status. 
The statute does not, for example, create a new crime for those 
who engage in bigoted speech but do not commit crimes. An 
individual remains free to express his or her discriminatory 
views by any means other than committing already proscribed 
crimes. Further, the statute imposes no penalties on bigots 
who commit crimes which are not in themselves 
discriminatory. The statute only provides extra penalties for 
those who commit crimes against the property or persons of 
protected groups because the victims belong to those groups. 
In doing so, the statute merely codifies the type of judicial 
consideration long given to status-dependent conduct, which 
this court has already deemed constitutionally permissible.

CONCLUSION

While this Court "should be eternally vigilant against 
attempts to check the expression of opinions we loathe,” 
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., 
dissenting), the Wisconsin statute at issue here poses no such 
risk. It is an exaggeration to say that imposing an additional 
penalty for the senseless beating of a fourteen year old boy, 
because the victim was selected on the basis of his race, even



- 2 4 -

incidentally affects the "free trade in ideas." Id. For these 
reasons, section 939.645 does not abridge freedom of speech in 
violation of the First Amendment.

Dated: January 28, 1993.

Respectfully submitted,

Paul Brest*
814 Tolman Drive 
Stanford, California 94305 
(415) 723-4455

Alan Cope Johnston
Yonkel Goldstein
Kenneth A. Kuwayti
Douglas W. Phillips
Anna Erickson White
Marc J. Pemick
M orrison  &  F oerster

755 Page Mill Road
Palo Alto, California 94304-1018
(415) 813-5600

Herbert M. Wachtell 
Co-Chair

William H. Brown, III 
Co-Chair 

Norman Redlich 
Trustee

Barbara R. Arnwine 
Thomas J. Henderson 
Sharon R. Vinick 
L aw yers ' C ommittee F or  

C ivil R igh ts U nder  L aw  
1400 Eye Street, N.W. 
Washington, D.C. 20005 
(202) 371-1212

Denotes Counsel o f Record