Court Hears Hate Crimes Case, Leaving Jewish Groups Hopeful

Jewish groups expressed guarded optimism this week about the future outcome of a Supreme Court case that could affect the fate of hate crimes statutes around the country.

The court heard oral argument Wednesday in a case called Wisconsin vs. Mitchell that centers on the constitutionality of Wisconsin’s hate crimes statute.

The statute, supported by many Jewish groups, calls for enhancing criminal penalties when perpetrators of crimes intentionally select their targets based on “race, religion, color, disability, sexual orientation, national origin or ancestry.”

The Anti-Defamation League is especially interested in the outcome of the case, to be decided by the end of the Supreme Court term this summer, because the Wisconsin statute is based on model legislation developed by ADL that has been used in more than 20 other states around the country.

Last year, the high court unanimously struck down a St. Paul, Minn ordinance banning cross-burning and other expressions of hate and racism.

In the St. Paul case, all nine justices agreed that the ordinance was unconstitutional, but four of the justices took issue with parts of Justice Antonin Scalia’s opinion and argued that another type of hate crimes law could be constitutional.

Just a few days after that decision, the Wisconsin Supreme Court ruled that the state’s hate crimes law was unconstitutional, saying it violated the First Amendment’s guarantee of free speech.

But Jewish groups, many of which filed briefs in the Wisconsin case, argue that unlike the St. Paul ordinance, the Wisconsin law enhances penalties for crimes already committed and does not penalize free speech.

The Wisconsin case involves a 1989 incident in Kenosha, Wis., in which a young black man, Todd Mitchell, and a group of younger black teen-agers were discussing a scene in the film “Mississippi Burning,” where a white man beats a black child.

When a white teen, Gregory Riddick, walked by, Mitchell urged the others to “go get” the “white boy.” They attacked Riddick and beat him unconscious.

‘THERE IS REASON FOR OPTIMISM’

Mitchell was convicted of aggravated battery, for which he was sentenced to two years in jail. He received another two years for his motive in selecting the victim. He appealed the additional sentence, claiming the hate-crimes law penalized free speech.

After the Supreme Court heard the case Wednesday, Jewish groups expressed satisfaction with the lines of questioning taken by some justices, including Scalia, who had taken a hard line in the St. Paul case.

“It was pleasantly surprising,” said Richard Foltin, legislative director and counsel for the American Jewish Committee, which filed a brief in support of Wisconsin.

“They asked questions that showed they understood the difference between last year’s case and this year,” Foltin said.

“I’m very pleased,” said Steven Freeman, director of ADL’s legal affairs department. “There is reason for optimism.”

Freeman observed that Scalia had compared the Wisconsin law to laws against treason, in a way that indicated the justice saw the statute’s approach as legitimate.

Scalia questioned Mitchell’s attorney, Lynn Adelman, for several minutes, arguing that the motive of perpetrators is relevant in treason cases. “Unless the motive is to help the enemy,” the justice said, “it is not treason.”

Adelman argued throughout his half-hour appearance that the Wisconsin case “punishes thought,” thereby violating the First Amendment.

But Wisconsin Attorney General James Doyle argued that his state was concerned with Mitchell’s motives, not what he actually thought about race relations. “To this day the state does not know” what Mitchell thinks about the subject, Doyle told the justices.

NO ATTEMPT TO ‘CONTROL THOUGHT’

The Wisconsin statute does not punish thought, “it punishes criminal conduct,” Doyle said. There is no “sinister motive to control thought” by the state, he added.

Michael Dreeben, assistant to the U.S. solicitor general, also argued on behalf of Wisconsin, stating that racially motivated crimes intimidate an entire class of people and thus are valid subjects for state legislation.

Foltin of AJCommittee said that Justice Anthony Kennedy, who was one of those taking a harder line in last year’s case, “was very strong today, almost making arguments on behalf” of the Wisconsin law.

Kennedy, in his questioning of Adelman, said that thoughts are protected, but when they veer into actual action, that is a different matter.

“Many thoughts are protected as such,” Kennedy said, “but cannot be put into action.”

Lois Waldman, co-director of the legal department of the American Jewish Congress, said that her organization, which also filed a brief supporting Wisconsin, feels that the Wisconsin law “doesn’t violate the First Amendment and is not prohibited by the court’s opinion” in the St. Paul case.

The Wisconsin law, Waldman said, “is not set in motion by thoughts or speech but is triggered when someone inflicts injury” based on race or other categories defined in the statute.

Among the other groups filing briefs in support of Wisconsin were the National Council of Jewish Women, the National Jewish Community Relations Advisory Council, the Union of American Hebrew Congregations, the Jewish Advocacy Center, People for the American Way and the NAACP Legal Defense and Education Fund.