— Andrew Anglin founder and editor of the neo-Nazi Daily Stormer website: “Get Em Outta Here: Glorious Leader Calls for Kike Lena Dunham to Leave America,” April 26, 2016
“Fear. Now is the time for it … We want these people to feel unwanted. We want them to feel that everything around them is against them. And we want them to be afraid.”
— Andrew Anglin “Female Hajis Fear to Wear the Headtowel in Public After Trump Win—You Should Yell at Them”
Perhaps the most important thing to clarify about “hate speech” prosecution is that “hate” nor “speech” by themselves are illegal or unconstitutional. Rather, the context of both the hate and the speech combined must be examined. The FBI has defined a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”
On October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law, as Division E of the National Defense Authorization Act for Fiscal Year 2010 (P.L. 111-84; H.R. 2647). This law broadens federal jurisdiction over hate crimes by authorizing the Attorney General to provide assistance, when requested by a state, local, or tribal official, for crimes that (1) would constitute a violent crime under federal law or a felony under state or tribal law, and (2) are motivated by the victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. In other words, hate crimes are traditional crimes during which the offender is motivated by one or more biases considered to be particularly reprehensible and damaging to society as a whole. Prior to enactment, however, hate crimes were not separate and distinct offenses under federal law. Furthermore, federal jurisdiction over hate crime was limited to certain civil rights offenses. The birth of this form of legislation can be traced to 1981 when the Anti-Defamation League of B’nai B’rith (ADL) had developed proposed model hate crime legislation, and advocates for tougher laws targeting “hate crime” began lobbying state and federal legislators. Valerie Jenness and Kendal Broad, Hate Crimes: New Social Movements and the Politics of Violence (New York: Aldine De Gruyter, 1997) p. 32.
Likewise, Wisconsin defines hate crime as committing a crime against certain people or property by selecting them in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct. Wis. Stat. 935.645. See WI JI Crim 996. The statute was created by 1987 Wisconsin Act 348, effective date: May 3, 1988. It was amended by 1991 Wisconsin Act 291. In Wisconsin, crimes that may qualify as hate crimes are: Murder, Forcible Rape, Robbery, Aggravated Assault, Burglary, Larceny/Theft, Motor Vehicle Theft, Arson, Simple Assault, Intimidation, and Destruction/Damage/Vandalism. However, crimes such as vandalism and simple assault were more frequently reported than more violent crimes such as murder and robbery.
It is critical to understand that a Wisconsin prosecution for a hate crime requires a prosecutor to convince a jury beyond a reasonable doubt that a defendant had an impermissible motive in selecting the victim. The Southern Poverty Law Center, an Alabama-based nonprofit that tracks hate crimes and hate groups nationwide, said it has seen a rise in the number of hate groups operating in the country for the second consecutive year, up from 892 in 2015 to 917 in 2016. Nine of them operate in Wisconsin.
The importance of the increase in hate crimes is important. The sponsor, State Representative David E Clarenbach, stated, "[T]here has been an alarming increase in crimes that seem to have been motivated by bigotry."' Shirley S. Abrahamson, Susan Craighead, and Daniel N. Abrahamson, Words and Sentences: Penalty Enhancement for Hate Crimes, 16 U. Ark. Little Rock L. Rev. 515, 520 n. 19 (1994). It should be noted the Wisconsin Supreme Court struck down the hate crime enhancer but Justice Shirley S. Abrahamson dissented from that opinion despite her personal belief the statute was unwise. The Wisconsin decision was reversed by the US Supreme Court.
The 2016 increase in hate crimes is a reaction to Trump’s presidential victory. As pointed out by the SPLC in 2016, In the immediate aftermath of Election Day, a wave of hate crimes and lesser hate incidents swept the country — 1,094 bias incidents in the first 34 days, according to a count by the Southern Poverty Law Center (SPLC). The hate was clearly tied directly to Trump’s victory. The highest count came on the first day after the election, with the numbers diminishing steadily after that. And more than a third of the incidents directly referenced either Trump, his “Make America Great Again” slogan, or his infamous remarks about grabbing women by the genitals. In fact, “2016 was an unprecedented year for hate,” said Mark Potok, senior fellow and editor of the Intelligence Report. “The country saw a resurgence of white nationalism that imperils the racial progress we’ve made, along with the rise of a president whose policies reflect the values of white nationalists.” Just as Trump’s promises to build a wall on the U.S.-Mexico border, block Muslim immigration, and restore “law and order” have emboldened nativists and racists, so has his history of casual misogyny and alleged sexual assault (“grab them by the pussy”) energized an explicitly sexist element within the noxious “Alt-Right” movement.
“Our Glorious Leader has ascended to God Emperor,” wrote Andrew Anglin, who runs the neo-Nazi Daily Stormer website. “Make no mistake about it: we did this. If it were not for us, it wouldn’t have been possible.” Jared Taylor, white nationalist founder of the New Century Foundation former editor of the racist journal, American Renaissance said that “overwhelmingly white Americans” had shown they were not “obedient zombies” by choosing to vote “for America as a distinct nation with a distinct people who deserve a government devoted to that people.” In 2005 he said, “Blacks and whites are different. When blacks are left entirely to their own devices, Western civilization — any kind of civilization — disappears.”
Despite these problems, hate crime prosecutions cause concern that a criminal prosecution is being sought for what someone thinks. Indeed, Democratic Senator Lynn Adelman opposed the bill for Wis. Stat. 935.645, asserting that it came perilously close to penalizing thought. Senator Adelman, a practicing attorney, filed an amicus brief in Wisconsin v. Mitchell, 508 U.S. 476 (1993) case in the Wisconsin Supreme Court and appeared before the United States Supreme Court arguing that the law was unconstitutional. See also, e.g., Susan Gellman, Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV. 333 (1991); James Weinstein, Hate Crime and Punishment: A Comment on Wisconsin v. Mitchell, 73 OR. L. REV. 345 (1994); Thomas D. Brooks, First Amendment Penalty Enhancements for Hate Crimes: Content Regulation, Questionable State Interests and Non-Traditional Sentencing, 84 J. CRIM. L. & CRIMINOLOGY 703 (1994); William J. Burnett, Wisconsin v. Mitchell: First Amendment Fast-Food Style, 4 TEMP. POL. & CIV. RTS. L. REV. 385 (1995); Gregory R. Nearpass, Comment, The Overlooked Constitutional Objection and Practical Concerns to Penalty-Enhancement Provisions of Hate Crime Legislation, 66 ALB. L. REV. 547 (2003).
The American Civil Liberties Union has explained that hate crime prosecution raises a number of concerns. First, they argued that penalty enhancement laws created unconstitutional ‘‘thought crimes’’ in violation of the First Amendment—that is, that the laws violated a defendant’s right to freedom of expression by punishing racist speech, mental processes, or opinions based upon the state’s disagreement with their ideological content. Critics also argued that the laws would have a ‘‘chilling effect’’ on free speech, because people would be fearful of exercising the right to attend racist talks or read racist literature because their activities might be brought into trial as evidence against them should they one day be charged with committing a hate crime. Challenges to the legitimacy and wisdom of the laws included the arguments that penalty enhancement is not warranted because bias crimes are no different from any other criminal act committed for an unpopular reason or that hate crimes are viewed as different only if one attributes some heightened sensitivity or weakness to the victims, who in most cases are members of minority social groups. Based on the latter argument, bias crime laws were sometimes characterized as stigmatizing or insulting to minority groups. Conversely, they also were viewed as insulting to other crime victims, because they were said to send the message that these individuals’ lives and well-being are not ‘‘worth’’ as much as the lives and well-being of minorities. Critics also contended that hate crime laws would exacerbate rather than reduce tensions between groups, because they draw attention to the perpetrator’s group-based animus. These arguments seemed valid in light of R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) in which the Supreme Court unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager for burning a cross on the lawn of an African-American family for violating the First Amendment's protections for freedom of speech.
In Wisconsin v. Mitchell, 508 U.S. 476 (1993) (unanimous opinion) reversed 169 Wis.2d 153, 485 N.W.2d 807 (Wis. 1992). A synopsis of the facts show that Mitchell and others, all African-Americans, were discussing a scene from the movie Mississippi Burning, in which an African-American child is beaten by a white man. Apparently inspired, Mitchell asked the group, "Do you all feel hyped up to move on some white people?" and directed the group to attack a young white boy who happened to pass on the other side of the street. Id. at 158-59, 485 N.W.2d at 809. The Wisconsin Supreme Court held that "[t]he statute is directed solely at the subjective motivation of the actor-his or her prejudice. Punishment of one's thought, however repugnant the thought, is unconstitutional." Id. at 170, 485 N.W.2d at 814.
In reversing, the US Supreme Court held that since such statutes remain tied to prohibited conduct, they do not chill free speech and are thus constitutional:
The sort of chill envisioned here is far more attenuated and unlikely than that
contemplated in traditional "over-breadth" cases. We must conjure up a vision of
a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he
later commits an offense covered by the statute, these opinions will be offered at
trial to establish that he selected his victim on account of the victim's protected
status, thus qualifying him for penalty enhancement. Id at 488-89
The Court found a state has a legitimate reason for singling out bias-inspired conduct for enhanced sentencing: “bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims and incite community unrest.” Id. Moreover, the First Amendment “does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Id at 489.
The United States Supreme Court’s opinon is an adoption of Justice Shirley S. Abrahamson’s dissent in the lower state decision where she explained the statute that "[t]he statute does nothing more than assign consequences to invidiously discriminatory acts." and I that "[t]he only chilling effect" [of the statute] is not on speech but on "lawless conduct." Mitchell, 485 N.W.2d at 819. Following Mitchell, states have defended the constitutionality of bias crime laws by arguing that their statutes do not interfere with the expression of prejudicial ideas, and are addressed solely to the implementation of those views in conduct. States have asserted their ability to differentiate speech from conduct, and to protect the former while punishing the latter.
As noted by the ACLU, in addition to the constitutional issues, hate crime laws raise important policy questions. Chief among these has been the question of which categories of social group membership to include among the punishable biases. The categories that have inspired the greatest controversy have been gender and sexual orientation. As a result, many states do not yet include gender or sexual orientation in their penalty enhancement statutes.