1. Enhanced penalties for ordinary crimes: The most attractive
approach is for government to enact enhanced penalties for
garden-variety crimes where the choice of victim or property is
motivated by racial or other specified bias. This approach was, of
course, explicitly approved by the Supreme Court in Wisconsin.
Assault, battery, murder, and even trespass could have their
penalties enhanced in this way as an anti-bias device. However, where
the defendant’s conduct verges on pure speech (e.g., D shouts racial
epithets at V), the penalty-enhancement strategy will not work
(Vawter is an example of this).
2. Common-law tort of intentional infliction of emotional distress:
Another approach might be to encourage victims of hate speech to
bring civil actions based upon the common-law tort of intentional
infliction of emotional distress. If the speaker’s purpose is to
cause psychic harm to the listener by insulting him on racial or
other bias grounds, the prima facie tort is made out. For example,
the black family in whose yard the cross was burned in R.A.V.
certainly would seem to have a good intentional-infliction-of-emotional-distress claim against the
cross-burners. Collin hinted at this as a possible remedy for really
“offensive” and “outrageous” speech.
3. Content-Neural “Fighting Words” Statute: As Scalia suggested in
his majority opinion to R.A.V., the state could enact an ordinance
prohibiting all fighting words, not merely fighting words motivated
by racial, religious or other specifically-enumerated biases.
We have located some similar legal questions and legal question categories. Check out these challenging questions that askquestions about Supreme Court Cases and are similar to What are some possible approaches towards dealing with Hate Speech in the Wake of R.A.V. and Mitchell?. Also, we have included a list of some of our more popular legal question categories. These categories are based on what everyone is asking and answering.