Punishing the Crime of Hatred



Washington. -- "There goes a white boy,'' cried Todd Mitchell. ''Go get him!''

The incident occurred in October 1989 in Kenosha, Wisconsin. About 10 black youngsters gathered at an apartment complex after going to the movie ''Mississippi Burning.'' They were upset by a scene in which a white man beats a black boy who is praying.

Mitchell was then 19. He put a question to the boys: ''Do you feel all hyped up to move on some white people?'' At that moment, 14-year-old Gregory Riddick, a white youth, approached the complex on the other side of the street. Mitchell said: ''You all want to [mess] somebody up? There goes a white boy. Go get him!'' The black boys raced across the street, beat the 14-year-old into a coma, stole his ''British Knights'' tennis shoes and fled. Young Riddick's brain damage may be permanent.

The record does not show what punishment, if any, the juveniles received. As instigator of the assault, Mitchell was convicted of aggravated battery and given the maximum two-year sentence.

Then Circuit Judge Jerold W. Breitenbach did something else. imposed an additional two years under Wisconsin's ''hate crime'' law. Mitchell challenged the additional sentence as an unconstitutional abridgment of his right of free speech. The Wisconsin Supreme Court agreed. On April 21 the U.S. Supreme Court heard argument in the case.

It is an important case for several reasons. Hate-related crimes are a serious national problem. Nearly 1,700 anti-Semitic incidents were reported to the Anti-Defamation League in 1990. The National Gay and Lesbian Task Force reported 7,000 crimes of violence against homosexuals in 1989. Racially motivated attacks of whites on blacks, or blacks on whites, number in the thousands every year.

Responding to the situation, 46 states have enacted some form of hate-crime laws; 26 states have adopted sentence-enhancement statutes that generally parallel the Wisconsin act. That act applies to any person who ''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.''

Before the U.S. Supreme Court, counsel for Wisconsin submitted that these hate-crime laws are not the only laws jeopardized by Mitchell's appeal. Hundreds of civil-rights statutes might also be endangered.

There is the further consideration that only a year ago, in a a Minnesota cross-burning case, the high court made the murky waters of First Amendment jurisprudence even murkier. Lower courts are sorely in need of clearer guidance.

For my own part, I find it absurd to contend that a right of free speech protects incitement to assault. What did Mitchell say? ''There goes a white boy. Go get him!'' The words may be speech, but the selective incitement is action.

The Mitchell case evokes memories of three cases decided by the Supreme Court in March 1919, involving two socialists, Eugene Debs and Charles Schenck, and a pro-German Missouri publisher, Jacob Frohwerk. All three were charged separately with inciting young men to resist the draft. In a series of opinions by Justice Holmes, the court unanimously affirmed the convictions. It was in the Schenck case that Holmes laid down the famous dictum that ''the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.''

In Frohwerk, Holmes held that the First Amendment ''cannot have been intended to give immunity for every possible use of language.'' No competent person, he said, ''ever supposed that to make criminal the counseling of murder would be an unconstitutional interference with free speech.'' The circulation of Frohwerk's newspaper came in circumstances ''where a little breath would be enough to kindle a flame.''

The Wisconsin court saw things differently. The hate-crime law serves to criminalize ''subjective bigoted thought.'' The ''selection'' of young Riddick was not an act; it was a mental process. Discriminatory acts, such as the assault, may be prohibited, but bigoted thought must be protected.

Wisconsin's Chief Justice Nathan Heffernan said for his colleagues that ''it is with great regret that we hold the hate crimes statute unconstitutional.''

As one observer, I regret it too. Considering the case of Todd Mitchell, I would vote with the reasoning of Oliver Wendell Holmes 74 years ago.

James J. Kilpatrick is a syndicated columnist.

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