SHIRLEY ABRAHAMSON, JUSTICE
(DISSENTING): The Constitution teaches mistrust of any government regulation of speech or expression. Had I been in the legislature, I do not believe I would have supported
this statute because I do not think this statute will accomplish its goal. I would direct the state's efforts to protect people from invidious discrimination and intimidation into other channels. As a judge, however, after much vacillation, I conclude that this law should be construed narrowly and should be held constitutional.
This case presents a very difficult question involving the convergence of three competing societal
values - freedom of speech, equal rights, and protection against crime.
Freedom of speech is the most treasured right in a free, democratic society. Our constitution protects our right to think, speak and write as we wish. This freedom of expression encompasses all speech, pleasant or unpleasant, popular or unpopular. Even expressions of bigotry are protected. Our constitutional history makes clear that expression hostile to the values of our country should be addressed with more speech, not suppressed with police power.
Nevertheless, our law recognizes the harmful effects of invidious classification and discrimination. We acknowledge that when individuals are victimized because of their status, such as race or religion, the resulting harm is greater than the harm that would have been caused by the injurious conduct alone. In addition to the injury inflicted, the victim may suffer feelings of fear, shame, isolation and inability to enjoy the rights and opportunities that should be available to all persons. Furthermore, all members of the group to which the victim belongs may suffer when the individual is victimized. The state has determined that
harms inflicted because of race, color, creed, religion or
sexual orientation are more pressing public concerns than other harms. The state has legitimate, reasonable and neutral justifications for selective protection of certain people. "In light of our Nation's long and painful experience with discrimination this determination is plainly reasonable. Indeed ... it is compelling." The state has a compelling interest in combating invidiously discriminatory conduct, even when the conduct is linked to viewpoints otherwise protected by the First Amendment.
In addition, our government has a compelling interest in preserving the peace, in protecting each person from crime and from the fear of crime.
Section 939.645 addresses only those crimes committed "because of' the victim's "race, religion, color, disability, sexual orientation, national origin or ancestry." It does not punish all crimes committed by persons who have expressed bigoted beliefs. An individual may commit a criminal act. That same individual may possess or express bigoted beliefs. These two facts standing alone, however, do not subject that individual to punishment under sec. 939.645.
In my mind, it is the tight nexus between the selection of the victim and the underlying crime that saves this statute. The state must prove beyond a reasonable doubt both that the defendant committed the underlying crime and that the defendant intentionally selected the victim because of characteristics protected under the statute. To prove intentional selection of the victim, the state cannot use evidence that the defendant has bigoted beliefs or has made bigoted statements unrelated to the particular crime. Evidence of a person's traits or beliefs would not be permissible for the purpose of proving the person acted in conformity therewith on a particular occasion. The statute requires the state to show evidence of bigotry relating directly to the defendant's intentional selection of this particular victim upon whom to commit the charged crime. The state must directly link the defendant's bigotry to the invidiously discriminatory selection of the victim and to the commission of the underlying crime.
Interpreted in this way, I believe the Wisconsin statute ties discriminatory selection of a victim to conduct already punishable by state law in a manner sufficient to prevent erosion of First Amendment protection of bigoted speech and ideas.
Read narrowly as the legislature intended, this statute is a prohibition on conduct, not on belief or expression. The statute does nothing more than assign consequences to invidiously discriminatory acts.
The state's interest in punishing bias related criminal conduct relates only to the protection of equal rights and the prevention of crime, not to the suppression of free expression. The enhanced punishment justly reflects the crime's enhanced negative consequences on society. Thus interpreted the statute prohibits intentional conduct, not belief or expression. The only chilling effect is on lawless conduct.
Bigots are free to think and express themselves as they wish, except that they may not engage in criminal conduct in furtherance of their beliefs. Section 939.645 does not punish abstract beliefs or speech. The defendant's beliefs or speech are only relevant as they relate directly to the commission of a crime.
The decision in R.A.V.
v City of St. Paul (1992) has not persuaded me to the contrary. In R.A.V. the Supreme Court held unconstitutional a St. Paul ordinance prohibiting placing "on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender…” The majority opinion in R.A.V. ruled the ordinance facially unconstitutional because, even assuming that the ordinance only regulated
"fighting words," the ordinance was based on the content of the ideas expressed by a defendant. The four concurring justices found the ordinance unconstitutional on the ground that the statute was an overbroad prohibition of fighting words.
R.A.V. does not control this case. Section 93 9.645 is not similar to the St. Paul ordinance; its validity does not rely on the
words" doctrine. The defendant in R.A.V. was also charged under a state statute much more similar to sec. 939.645 than the St. Paul ordinance, but the defendant did not challenge that charge.
For the reasons set forth, I dissent.