Cummings v. City of Charleston Brief and Appendix for Appellants

    NO. 92-515

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1992

STATE OF WISCONSIN,
Petitioner,

vs.

TODD MITCHELL,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF WISCONSIN

BRIEF OF THE NATIONAL ASSOCIATION OF 
CRIMINAL DEFENSE LAWYERS, AND THE OHIO, 

FLORIDA, MISSOURI AND NEW YORK STATE 
ASSOCIATIONS OF CRIMINAL DEFENSE LAWYERS AS 

AMICI CURIAE IN SUPPORT OF RESPONDENT

HARRY R. REINHART 
Counsel o f Record 
Ohio Reg. No. 0008294 
536 South High Street 
Columbus, Ohio 43215 
(614) 228-7771
Counsel fo r  Amicus Curiae 
National Association o f 
Criminal Defense Launjers

(Counsel continued on inside cover)

BECKER G A LLA G H ER  LEG AL PUBLISHING, IN C ., C IN C IN N ATI, O H IO  (5 13 ) 621-288 0



and
JOHN PYLE
Gold, Rotatori, Schwartz & 
Gibbons Co., L.P.A.
Ohio Reg. No. 0001129 
1500 Leader Ruilding 
Cleveland, Ohio 44114 
(216) 696-6122 
Counsel fo r  Amicus Curiae 
Ohio Association o f 
Criminal Defense Lawyers

and
ROBERT A. HARPER 
Florida Bar No. 127600 
300 W. Park Ave.
P.O. Box 10132
Tallahassee, Florida 32302-2132 
(904) 224-5900 
Counsel fo r  Amicus Curiae 
Florida Association o f 
Criminal Defense Laivyers

and
SEAN O’BRIEN 
Attorney at Law 
Missouri Reg. No. 30116 
500 E. 52nd St.
P.O. Box 22609
Kansas City, Mo. 64113-2609
(816) 235-2383
Counsel fo r  Amicus Curiae
Missouri Association o f
Criminal Defense Lawyers

and
WILLIAM I. ARONWALD 
ARONWALD & PYKETT 
925 Westchester Avenue 
Suite 311
White Plains, NY 10604 
(914) 946-6565 
Counsel fo r  Amicus Curiae 
NY State Association o f 
Criminal Defense Lawyers



QUESTIONS PRESENTED

I. DOES THE GOVERNMENT HAVE THE POWER TO 
REG U LA TE THE THOUGHT OF THE IN­
DIVIDUAL?

II. IS A SENTENCE ENHANCEMENT STATUTE 
WHICH REQUIRES PROOF OF BOTH AN ILLEGAL 
ACT AND PRIVILEGED THOUGHT OR SPEECH 
UNCONSTITUTIONAL AS A VIOLATION OF THE 
FIRST AMENDMENT AND, THEREFORE, VOID?

i





I l l

TABLE OF CONTENTS

Page

QUESTIONS PR ESEN TED .................................................  i

TABLE OF AUTHORITIES.................................................  iv

INTEREST OF AMICI C U R IA E .........................................  1

SUMMARY OF ARGUMENT...............................................  3

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

THE GOVERNMENT HAS NO POWER TO 
REGULATE THOUGHT. WHERE A SENTENCE 
ENHANCEMENT STATUTE REQUIRES PROOF 
OF BOTH AN ILLEGAL ACT AND PRIVI­
LEGED THOUGHT OR SPEECH IT IS UNCON­
STITUTIONAL AS A VIOLATION OF THE 
FIRST AMENDMENT AND, TH EREFO RE,
VOID......................................................................................  4

CONCLUSION .  ..................................................................... 14



IV

TABLE OF AUTHORITIES

CASES Page

Aptheker v. The Secretary o f State,
378 U.S. 500 (1964)..............................................................  6-7

Brandenburg v, Ohio, 395 U.S. 444 (1969) ........................ 13

Communist Party o f the United States v. Subversive 
Activities Control Board, 367 U.S. 1 (1961)..................  7

Consolidated Edison Co. o f N.Y. v. Public Serv. 
Com m ’n. o f N.Y., 447 U.S. 530 (1980)............................ 10

De Jonge v. Oregon, 299 U.S. 353 (1937)............................ 9

Korematsu v. United States, 323 U.S. 214 (1944 )............. 14

Myer v. Nebraska, 262 U.S. 390 (1923) . ............................  5

Pierce v. Society o f Sisters, 268 U.S. 510 (1925).................  5

Police Dept, o f Chicago v. Mosley,
408 U.S. 92 (1972)................................................................  10

Prince v. Massachusetts, 321 U.S. 158 (1944) ...................  5

R.A.V. v. City o f St. Paul, Minnesota,
____U .S .____ , 112 S.Ct. 2538 (1992)............................ 8, 11

Simon <b Schuster, Inc. v. Members o f N.Y. State
Crime Victims Board, 502 U .S .____(1991) ..................  10

Speiserv. Randall, 357 U.S. 513 (1958)..............................  9

State Board o f Education v. Barnette,
319 U.S. 624 (1943)..............................................................  5

Street v. New York, 394 U.S. 576 (1969) ............................ 10

Stromberg v. California, 283 U.S. 359, 367-68 (1931) . . .  10

Terminiello v. Chicago, 337 U.S. 1 (1949).......................... 5

Texas v. Johnson, 491 U.S. 397 (1989)................................  8, 9



V

Page

Thomas v. Collins, 323 U.S. 516 (1945)..............................  5

United States v. Associated Press,
52 F. Supp. 362 (S.D.N.Y. 1943) ....................................  14

United States v. Bangret, 645 F.2d 1297 (8th Cir. 1981) . 6

United States v. Lem on ,
723 F.2d 922 (D.C. Cir. 1983) ......................................... 6

West Virginia State Board o f Education v. Barnette ,
319 U.S. 624 (1943)............................................................ 13-14

Williams v. North Carolina, 317 U.S. 287 (1942)............. 10

CONSTITUTIONAL PROVISIONS

First Amendment, United States
Constitution........................................................i, 3, 4, 6, 8, 14

Ninth Amendment, United States Constitution.................  7

Tenth Amendment, United States Constitution ............... 7

Fourteenth Amendment, United States Constitution . . . .  6

Article I, Section 1, Wisconsin Constitution .....................  7

STATUTES AND RULES

Wis. Stats. § 939.645 (1989-90).............................................  4, 5

Rule 404(B), Wis. Rules of Evid............................................. 6



NO. 92-515

IN THE

S U PR EM E C O U R T  O F  T H E U N IT E D  STATES
OCTOBER TERM, 1992

STATE OF WISCONSIN,

vs.
TODD MITCHELL,

Petitioner,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF WISCONSIN

BRIEF OF THE NATIONAL ASSOCIATION OF 
CRIMINAL DEFENSE LAWYERS, AND THE OHIO, 

FLORIDA, MISSOURI AND NEW YORK STATE 
ASSOCIATIONS OF CRIMINAL DEFENSE LAWYERS AS 

AM ICI CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICI CURIAE

The National Association of Criminal Defense Lawyers 
(hereinafter NACDL) is a District of Columbia nonprofit cor­
poration whose membership is comprised of more than 5,000 
lawyers and 25,000 affiliate members who are citizens of 
every state. Members serve in positions bringing them into 
daily contact with the criminal justice system as advocates, 
law professors, or judges of the state or federal courts. The 
NACDL is the only national bar organization working on 
behalf of public and private defense lawyers. The American 
Bar Association recognizes the NACDL as an affiliated 
organization and awards it full representation in the ABA 
House of Delegates. The NACDL is dedicated to the preser­
vation and improvement of our adversary system of justice.

1



2

The Ohio, Florida, Missouri and New York State Associa­
tions of Criminal Defense Lawyers are statewide organiza­
tions of attorneys practicing primarily in the field of criminal 
defense law. The organizations are affiliated with the 
NACDL and have been formed for charitable, scientific and 
educational purposes including the proper administration of 
justice and research in the field of criminal defense law. The 
membership of these organizations includes both private 
practitioners and public defenders many of whom have 
served as prosecutors.

Amici believe that the precious constitutional rights of the 
people must be jealously guarded against encroachment by 
the government, for a right once lost is never to be regained. 
The case at bar is an extraordinary one. The state seeks 
dominion over thought itself. The people have not delegated 
this authority to the state. It is simply not part of our social 
compact with government. This remains true even though the 
majority finds the particular thoughts at issue politically in­
correct and unworthy of protection.

The parties have consented to the filing of this brief of 
Amici Curiae by letters filed with the Clerk.



3

SUMMARY OF THE ARGUMENT

The people have not granted government the authority to 
regulate or control thought. Thought, the core value pro­
tected by the First Amendment’s freedom of speech clause, is 
absolutely protected and any attempt to regulate it is void. 
This is true even where the proposed regulation is aimed at 
the thoughts of a criminal.

Wisconsin’s sentence enhancement statute attempts to 
evade this logic by use of the “intentional selection” language. 
The sentence is not enhanced because of the offender’s 
thoughts, so the argument goes, but rather it is enhanced 
because the offender “intentionally selects” the victim 
because of the victim’s race. However, all victims are selected 
intentionally. Criminal law traditionally defines several types 
of mens rea. The prohibited conduct must be purposeful, 
knowing, reckless or criminally negligent in order to con­
stitute a crime. But this is insufficient under the Wisconsin 
statute to trigger sentence enhancement. In addition, the 
state must prove the thought or motive behind the intent. 
Thus, protected thought is singled out for punishment at a 
higher level than the same criminal act and intent without 
proof of thought or motive. This the government may not do.

Although this argument may be framed in traditional First 
Amendment language of overbreadth or infringement upon 
protected speech, it is in its simplest form more fundamental 
than that. The state of Wisconsin has attempted to usurp a 
power not granted it by its social compact with the people. 
To the extent that this fundamental truth manifests itself in 
the federal constitution through the First Amendment, the 
law is void as an abridgement of the freedom of speech.



4

ARGUMENT:

THE GOVERNMENT HAS NO POWER TO 
REGULATE THOUGHT. WHERE A SENTENCE 
ENHANCEMENT STATUTE REQUIRES PROOF 
OF BOTH AN ILLEGAL ACT AND PRIVILEGED 
THOUGHT OR SPEECH IT IS UNCONSTITU­
TIONAL AS A VIOLATION OF THE FIRST 
AMENDMENT AND, THEREFORE, VOID.

“Every opinion may be tolerated w here reason is left 
fr ee  to com bat it. ”

Thomas Jefferson, First Inaugural Address, March 4, 1801.

The substantial constitutional question in this case is 
whether government may regulate thought. The Wisconsin 
penalty enhancement statute (Wis. Stat. § 939.645) makes 
relevant the thoughts of the individual to the extent that they 
occur and are somehow related to the predicate crime. The 
phrase “intentionally selects the person . . . because of the 
race, (etc.) of that person” suggests a cause and effect rela­
tionship between the thought and the predicate offense.

Proof of the defendant’s conduct alone is insufficient to 
trigger the sentence enhancement statute. Therefore, this 
statute makes thought with a particular content an element of 
the criminal offense.1 The conduct associated with the offense 
is already prohibited. This is not contested. The dispute is 
whether it is constitutional to prohibit conduct plus thought. 
It is not.

The State of Wisconsin has a legitimate interest in protect­
ing the health, safety, and welfare of the people, but it has no

1 Of course, all crimes (with the exception of strict liability offenses) con­
tain a mental element. But the traditional mens rea, such as purposeful or 
intentional action, does not require proof of the content of thought. The 
Wisconsin penalty enhancement statute makes the content of the thought an 
element of the statute, thereby discriminating between various motivations.



5

interest in controlling their thoughts. This Court has long 
held that freedom of thought enjoys the same constitutional 
guarantee as freedom of conscience, and that in neither case 
do the States enjoy the power to regulate:

The very purpose of the First Amendment is to 
foreclose public authority from assuming a guardian­
ship of the public mind through regulating the press, 
speech, and religion. In this field every person must be 
his own watchman for truth, because the forefathers 
did not trust in government to separate the true from 
the false for us.

Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., con­
curring). See also, State Board o f Education v. Barnette, 319 
U.S. 624 (1943); Prince v. Massachusetts, 321 U.S. 158 
(1944); Myer v. Nebraska, 262 U.S. 390 (1923); Pierce v. 
Society o f Sisters, 268 U.S. 510 (1925).

The words of Thomas Jefferson give voice to this bedrock 
principle. It is a principle which remains valid even when the 
particular thought is offensive and not “politically correct”. 
See Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949). Common 
beliefs bind the majority of our society together. But our con­
stitutional democracy is designed to protect the rights of a 
minority, indeed even a single individual, against ma- 
joritarian oppression in certain fundamental areas. The most 
fundamental protection is the inherent right of free and 
unfettered thought.

The statute reads in relevant part:

If a person does all of the following, the penalties for 
the underlying crime are increased . . .  (a) commits a 
crime . . . (b) Intentionally selects the person against 
whom the crime under para, (a) is committed . . . 
because of the race, religion, color, disability, sexual 
orientation, national origin or ancestry of that 
person. . . .

Wis. Stat. § 939.645 (1989-90).



6

Wisconsin had already passed laws which govern every 
aspect of the conduct involved in this case. Proof of one of 
these crimes is necessary for, but insufficient to invoke the ad­
ditional penalties, provided by the statute. In addition to the 
conduct, the State of Wisconsin was required to prove that 
respondent held a thought with a particular content in his 
mind when the predicate offense was committed. It is proof 
of this second element which triggers the enhancement 
statute. Penalties for crimes committed while the defendant is 
possessed of an offending thought or belief is double that 
where the proof on this issue fails.2 Where the proof does not 
fail, the statute specifically punishes the thought harbored by 
the defendant at the time of the offense.

A fair reading of this statute is that the selection of the vic­
tim of the offense must be motivated by or “because of” the 
victim’s race, etc. The thoughts of the offender are the cause 
and the underlying crime is the effect. Both cause and effect 
are essential elements of this statute. Any other reading would 
create character evidence problems under Rule 404(B), 
Wisconsin Rules of Evidence.3 However, this offends the First 
and Fourteenth Amendments to the United States Constitu­
tion because it invades the cognate right of the individual to 
think whatever he or she pleases. See Aptheker v. The

2 It has been suggested that because this statute does not create a separate 
offense but simply serves to enhance the punishment of acts which are 
already illegal it does not offend the constitution. This is a matter of con­
stitutional insignificance, however, as the sentence enhancer remains a 
legislative attempt to regulate or control thought. See United States v. 
Lem on, 723 F.2d 922, 938 (D.C. Cir. 1983) (“A sentence based to any 
degree on activity or beliefs protected by the first amendment is constitu­
tionally invalid”). United States v. Bangret, 645 F.2d 1297, 1305 (8th Cir. 
1981) (“Consideration of political beliefs, as distinguished from criminal ac­
tivity, would clearly be impermissible in determining defendant’s sentences, 
because it would impair the rights of the defendants under the First Amend­
ment [. . .].”).

3 Evidence of a defendant’s bigotry, for example, is inadmissible to prove 
bad character and, therefore, action in conformity with bad character.



7

Secretary o f State, 378 U.S. 500, 517 (1964) (Black, J ., con­
curring). See also Communist Party o f the United States v. 
Subversive Activities Control Board, 367 U.S. 1, 137 (1961) 
(Black, J .,  dissenting).

If the state can do this at ail then it can do it at will. If 
bigotry can be singled out for higher punishment, then so can 
political party affiliation, culinary preference, or any other 
aspect of thought or belief. Petitioner and their amici fail to 
explain why these categories could not be appended to the 
“because of” portion of the statute immediately following 
“national origin or ancestry”. Assume, by way of example, 
that the statute included artistic preference immediately after 
ancestry, and that the crime was committed against an im­
pressionist painter. The state, put to its proof, would show 
that the defendant intentionally selected his victim because, 
being a realist he despised the impressionist school of art. Act­
ing on his belief makes him guilty of the assault, but the belief 
itself doubles his punishment. Indeed, under the Wisconsin 
statute, he would be punished at the higher level even if he 
were mistaken about the victim’s artistic preference.

However, the government has only such power as the peo­
ple have conferred upon it. The people of the State of 
Wisconsin have never conferred the power of thought control 
upon the Wisconsin legislature. To the contrary, this right has 
been specifically reserved by the people. See, e.g., Article I, 
Section 1 of the Wisconsin Constitution (“All people are born 
equally free and independent, and have certain inherent 
rights; among these are life, liberty and the pursuit of hap­
piness; to serve these rights, governments are instituted, 
deriving their just powers from the consent of the governed.”) 
See also Amendments IX and X, United States Constituition. 
The state simply may not regulate an area wherein it has no 
interest.4 Thought is not merely a cognate or penumbral right

4 Petitioner has stated that “the State legislature has legitimate reasons for 
believing that many discrimination crimes deserve higher penalties.” Peti­
tioner’s Brief at 9. Petitioner then continues, oxymoronically, “[tjhe law



8

protected by the First Amendment. It is a right even more 
fundamental than speech or association. Although speech and 
association are given constitutional ink, they are merely the 
vehicles through which thought is transmitted.

The Wisconsin legislature has sought to penalize thought 
with a particular content. To this extent the case at bar is 
distinguishable from R.A.V. v. CAtij o f St. Paul, Minnesota,
------U.S. ------- , 112 S.Ct. 2538 (1992). There is no question
that conduct can be and already has been sanctioned. 
However the Constitution requires a cold neutrality from the 
legislature where it seeks to govern expressive conduct. See 
Texas v. Johnson, 491 U.S. 397, 406 (1989); R.A .V ., supra,
------U.S a t ------- , 112 S.Ct. at 2542. Each person and every
group in society is entitled to the equal protection of the laws, 
no more and no less. When the Wisconsin legislature attempts 
to protect one group in society from the thoughts in addition 
to the conduct of another group, it violates this principle of 
neutrality. It does at once too much and too little.

It does too much when a precedent is set allowing criminal 
sanctions against thoughts which are unpopular under con­
temporary values. Values may change, but once the govern­
ment has usurped a power from the people it never gives it 
back.

And it does too little. Criminal laws do not prevent crime. 
Criminal laws punish, but do not change behavior. The sug­
gestion that this law is aimed at preventing or reducing 
racial, religious or ethnic violence is at best disingenuous. It

does not violate the First Amendment because these reasons have nothing to 
do with punishing beliefs.” Id. Amici for respondent respectfully disagree. 
The state has no legitimate reason for believing that discrimination crimes 
deserve higher penalties than the identical crime committed with some 
other motivation. The fact that a majority of the legislature disapprove of 
Mr. Mitchell s anger toward whites does not mean that the government can 
seek to extinguish such thoughts. The Wisconsin Legislature is entitled to ex­
press its outrage at those who commit racially motivated crimes, but not by 
punishing the thought. Simply put, government may not directly regulate 
the thoughts of the people in any manner.



9

will do no such thing. Not a single act of ethnic violence or 
racial intimidation will be thwarted. This law was enacted 
for political reasons. It allows legislators and prosecutors to 
posture before the public. Such laws fool the electorate into 
believing that politicians are addressing themselves to the 
underlying social problems which breed intolerance when, in 
fact, they are doing nothing at all.

Nor does it matter that the “interest” of the state is 
characterized as “compelling”. This Court has struck down 
laws where the government’s interest is arguably at its zenith, 
e.g ., criminal syndication statutes designed to protect the 
government against violent overthrow or revolution. The ra­
tionale of these decisions recommends itself here:

The greater the importance of safeguarding the com­
munity from incitements to the overthrow of our in­
stitutions by force and violence, the more imperative 
is the need to preserve inviolate the constitutional 
rights of free speech, free press, and free assembly in 
order to maintain the opportunity for free political 
discussion of the people and that changes if desired, 
may be obtained by peaceful means. Therein lies the 
security of the Republic, the very foundation of con­
stitutional government.

De Jonge v. Oregon, 299 U.S. 353, 365 (1937).

It has been suggested that the statute does not regulate 
thought or speech in an impermissible fashion5 because the

5 Of course, the power of government to regulate speech is severely 
limited. Speech can be regulated where it is “brigaded with action” such as 
shouting fire in a crowded theater. See Speiser v. Randall, 357 U.S. 513, 
536-37 (1958) (Douglas, J .,  concurring). But a prosecution for inducing a 
panic is based upon the conduct of the defendant and not the content of his 
thought. Applying this analogy to the case sub judice, the prosecution 
would be required to prove that the defendant shouted fire in the crowded 
theater because he hated the patrons of the theater (i.e. intentionally 
selected them because of their race, etc.). This crosses the line. Government 
may not directly regulate the content of an individual’s thoughts even if the 
thought is “brigaded with action”. Texas v. Johnson, supra.



10

sanction operates only in concert with the conduct embodied 
in the predicate offense. However, this argument is flawed. 
Where the criminal sanction is based on a mix, partially for 
what is thought or spoken and partially for what is illegally 
done, the conviction cannot stand. See Stromberg v. Califor­
nia, 283 U.S. 359, 367-68 (1931); Williams v. North Carolina, 
317 U.S. 287, 292 (1942); Street v. New York, 394 U.S. 576, 
586-87 (1969). This Court has often noted that regulations 
based on the content of speech or expressive conduct is 
presumptively invalid. Simon 6- Schuster, Inc. v. Members o f
N.Y. State Crime Victims Board, 502 U.S. ____, ____, 112
S.Ct. 501, 508, 116 L.Ed.2d 4 7 6 ,____(1991); Consolidated
Edison Co. o f N.Y. v. Public Serv. Com m ’n. o f N.Y., 447 
U.S. 530, 536 (1980); Police Dept, o f Chicago v. Mosley, 408 
U.S. 92, 95 (1972).

Street v. New York, supra, is instructive:

[. . .] we conclude that the case is governed by the 
rule of Stromberg, and that appellant’s conviction 
must be set aside if we find that it could have been 
based solely upon his words and that a conviction 
resting on such a basis would be unconstitutional 
[. . .]. Moreover, even assuming that the record 
precludes the inference that appellant’s conviction 
might have been based solely on his words, we are still 
bound to reverse if the conviction could have been 
based upon both  his words and his act.

394 U.S., at 586-87 (emphasis added).

A conviction under the Wisconsin statute requires — by 
definition and design — proof of both an illegal act and 
privileged thought.6 Protected speech is implicated as it will

6 Moreover, the thought must be of a certain and particular content. In­
tentional selection of the victim because of the victim’s race or religion is 
prohibited whereas intentional selection because of the victims politics, 
philosophy or taste in art is not.



11

be the most common form the state’s evidence of the defen­
dant’s bigotry will take. The statute is patently unconstitu­
tional because it attempts to convert otherwise constitutional­
ly protected thought into an element of the enhancement law. 
The statute is overbroad by design.

It takes little imagination to foresee the harm that could 
come from allowing thought control so long as it is allied with 
“criminal conduct”. One of the results of the so called war 
against crime has been the explosive growth in the reach of 
criminal law, particularly in the area of conspiracy. All that 
is required to prove a conspiracy is a criminal agreement to 
which the defendant is a party. One may well be held ac­
countable even where he or she takes no other act in fur­
therance of the conspiracy. In such a case the defendant’s 
“thought” would be “brigaded” only with the action of a co­
conspirator. Furthermore, such an action may have occurred 
before the defendant even became part of the conspiracy. In 
fact, this could have occurred in the case at bar. The defen­
dant clearly formed a conspiracy with the others in his gang 
to assault the victim. If one of the others had actually 
assaulted him a day later, Mr. Mitchell could have been 
charged, tried and convicted as a co-conspirator based upon 
his agreement to join in the criminal conspiracy standing 
alone.

Even if it were conceded that the state has a legitimate and 
compelling interest in controlling thought, a showing would 
be required that the means employed are the narrowest
available. R.A.V., supra, ____ U.S. at ____, 112 S.Ct. at
2549-50. In this case they are not. There is no evidence what­
soever that this statute will reduce ethnic or racial crime. It 
seems clear, though, that the statute can and will be used to 
enforce a conformity of thought. Amici question the wisdom 
of seeking social tranquility through thought control. Even if 
it works the cure may be worse than the affliction.

This is not the first time that state legislatures have at­
tempted to regulate what the people think or believe. But the



12

power to regulate is the power to punish and this knowledge 
can chill the exercise of free speech. Wrote Justice William O. 
Douglas:

One’s beliefs have long been thought to be sanctuaries 
which government could not invade. Barenblatt is one 
example of the ease with which that sanctuary can be 
violated. The line drawn by the Court between the 
criminal act of being an “active Communist” and the 
innocent act of being a nominal or inactive Com­
munist mark the difference only between deep and 
abiding belief and casual or uncertain belief. But I 
think that all matters o f belief are beyond the reach o f 
subpoenas or the probings o f investigators. That is 
why the invasions of privacy made by investigating 
committees were notoriously unconstitutional. That is 
the deep-seated fault in the infamous loyalty-security 
hearings which, since 1947 when President Truman 
launched them, have processed 20,000,000 men and 
women. Those hearings were primarily concerned 
with one’s thoughts, ideas, beliefs, and convictions. 
They were the most blatant violations of the First 
Amendment we have ever known. The line between  
what is permissible and not subject to control and 
what may be made impermissible and subject to 
regulation is the line between ideas and overt acts.
The example usually given by those who would punish 
speech is the case of one who falsely shouts fire in a 
crowded theater. This is, however, a classic case 
where speech is brigaded with action. See Speiser v. 
Randall, 357 U.S. 513, 536-37, 78 S. Ct. 1332, 1346, 2 
L. Ed. 2d 1460 (Douglass, J .,  concurring). They are 
indeed inseparable and a prosecution can be launched 
for the overt acts actually caused. Apart from rare in­
stances of that kind, speech is, I think, immune from 
prosecution. Certainly there is no constitutional line 
between advocacy of abstract ideas as in Yates and ad­
vocacy of political action as in Scales. The quality of



13

advocacy turns on the depth of the conviction; and 
government has no power to invade that sanctuary o f 
belief and conscience.

Brandenburg v. Ohio, 395 U.S. 444, 456-57 (1969) (Douglas, 
J ., concurring) (emphasis added).

CONCLUSION

Judge Learned Hand wrote that the First Amendment, 
“presupposes that right conclusions are more likely to be 
gathered out of a multitude of tongues, than through any 
kind of authoritative selection. To many this is, and will 
always be folly; but we have staked upon it our all.” United 
States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 
1943).

Only those among us of mean spirit will advocate racism 
and bigotry. But our system of government does not allow the 
state to invoke the police power to punish the thoughts and 
beliefs of any citizen, no matter how reprehensible. Nor may 
government single out thought of a particular content for 
punishment even when it is brigaged with criminal action. 
We must place our faith in our ability to grow and mature as 
a society. We must hope that the evolving standards of decen­
cy will, one day, lead to the extinction of abhorrent attitudes 
and undesirable beliefs. But this must be a nautral evolution. 
It can not be achieved through legislative fiat:

Reliance for the most precious interests of civilization, 
therefore, must be found outside of their vindication 
in courts of law. Only a persistent positive translation 
of the faith of a free society into the convictions and 
habits and actions of a community is the ultimate 
reliance against unabated temptations to fetter the 
human spirit.



14

West Virginia State Board o f Education v. Barnette, 319 U.S. 
671 (1943) (Frankfurter, J . , dissenting).

Conduct can be punished. It is. Thought may not. Yet this 
is what Wisconsin would do through § 939.651. In its attempt 
to punish bigoted thought Wisconsin has exceeded the power 
granted it by the people. In its attempt to usurp this power 
the Wisconsin legislature has violated the social compact 
under which the people consent to be governed. Governmen­
tal cries of compelling need and necessity are unmoving. We 
have heard such cries before. They have been evoked, for ex­
ample, to justify internment of Japanese-Americans during 
the second World War — cries that this Court heeded to our 
collective shame as a constitutional democracy. See, e.g., 
Korematsu v. United States, 323 U.S. 214 (1944). The same 
mistake should not be made here where the compelling 
necessity is simply to enforce that which is politically correct 
at the moment. The decision of the Supreme Court of 
Wisconsin should be affirmed.

Respectfully Submitted,

I si __________________________________
HARRY R. REINHART 
Counsel o f Record 
Ohio Reg. No. 0008294 
536 South High Street 
Columbus, Ohio 43215 
(614) 228-7771

Counsel fo r  Amicus Curiae 
National Association o f 
Criminal Defense Lawyers



15

and
JOHN PYLE
Gold, Rotatori, Schwartz & 
Gibbons Co., L.P.A.
Ohio Reg. No. 0001129 
1500 Leader Building 
Cleveland, Ohio 44114 
(216) 696-6122

Counsel fo r  Amicus Curiae 
Ohio Association o f 
Criminal Lawyers

and
ROBERT A. HARPER 
Florida Bar No. 127600 
300 W. Park Ave.
P.O. Box 10132
Tallahassee, Florida 32302-2132 
(904) 224-5900

Counsel fo r  Amicus Curiae 
Florida Association o f 
Criminal Defense Lawyers

and
SEAN O’BRIEN 
Attorney at Law 
Missouri Reg. No. 30116 
500 E. 52nd St.
P.O. Box 22609
Kansas City, Mo. 64113-2609
(816) 235-2383

Counsel fo r  Amicus Curiae 
Missouri Association o f 
Criminal Defense Lawyers

and



1 6

WILLIAM I. ARONWALD 
ARONWALD & PYKETT 
925 Westchester Avenue 
Suite 311
White Plains, NY 10604 
(914) 946-6565

Counsel fo r  Amicus Curiae 
New York State Association o f 
Criminal Defense Lawyers