a. The Court’s approach in R.A.V. will probably invalidate those
anti-hate crime statutes that, like St. Paul’s, define certain
activities as a new, separate, crime. These statutes typically turn
on the offender’s motive for the conduct. Thus, an epithet, a
cross-burning, or act of intimidation becomes criminal if it is
committed “on account of” the victim’s race, religion, gender, etc.
Since the legislature has chosen to proscribe expression motivated by
some types of animus (e.g., race) but not other types of animus
(e.g., sexual orientation), these statutes are presumably invalid in
the same way that the St. Paul ordinance was invalid, as being
non-content neutral. Similarly, any public university’s speech code
that prohibits a student from insulting or harassing another based on
race, ethnicity, religion, sexual orientation, or other enumerate
factors, will most likely be found unconstitutional for lack of
b. But R.A.V. does not invalidate statutes that approach the
hate-speech problem in a quite different way: these statutes punish
existing crimes like vandalism and arson more seriously if the
prosecution shows that the crime was motivated in part by one of the
listed types of bias. An example of such a statute would be punishing
D six more years for burning down a house or beating up a person
solely because of that person’s (or homeowner’s) race, gender, etc.
The Court found such a “penalty enhancement” statute to be valid in
Wisconsin v. Mitchell (see below). This unanimous decision seems to
validate all of the dozens of state and local hate-crime laws of the
“penalty enhancement” variety throughout the country.
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