Monday Morning Message 8.12.19 Hate Speech and the First Amendment

Posted 2019-08-12 11:05am


“The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another….. We want order and security, and we want liberty…..” - Former U.S. Supreme Court Justice David Souter

Nineteen minutes before the first 911 call alerted the authorities to a mass shooting at a Walmart in El Paso, a hate-filled, anti-immigrant manifesto appeared online by the same man who killed 20 innocent people.

Can the penalty for his horrific crime be increased because he wrote those hateful words? As repugnant as his words were, is such a penalty enhancement a violation of free speech under the First Amendment?

At Cleveland-Marshall, we teach that the answers to these and many other similar legal questions are rarely clear and simple. Rather than default to our ideological autopilots, they require a carefulbalance between conflicting and competing rights, interests, and values.

33 years ago, as Ohio state senators, Senator Mike White (later Cleveland’s Mayor) and I co-authored Ohio’s Hate Crime Law (also known as the Ethnic Intimidation Law), one of the first hate crime laws in the country.  See History of Ohio's Hate Crime Law

Six years later, as Ohio Attorney General, I had the unique opportunity to defend the constitutionality of Ohio’s Hate Crime Law before the Ohio Supreme Court. Then Chief Justice Thomas Moyer noted that I was the first Attorney General of Ohio to personally argue a case before the state’s highest court.

Cleveland-Marshall Professor Kevin O’Neill, then the Ohio Legal Director of the ACLU, skillfully argued that the Ohio Hate Crime Law created a thought crime, and that it was a misguided effort by the state government to punish someone for having the wrong views, in violation of the First Amendment right of free speech.

I argued that the Ohio Hate Crime Law did not punish speech or thought; rather, it punished criminal actions motivated by hate. I noted that the law I had written 6 years earlier as a State Senator enhanced the penalty for a crime if the criminal chose their victim on the basis of the victim's race, color, religion, or national origin.  

27 years ago, almost to the day, I lost the argument. The Ohio Supreme Court, in State v. Wyant, 64 Ohio St. 3d 566 (1992), ruled that the Ohio Hate Crime Law punished hate thought in violation of the First Amendment.

However, in our legal system, because of the right to appeal, it’s not over until it’s over. We appealed to the U.S. Supreme Court. That same summer, the Wisconsin Supreme Court ruled that its Hate Crime Law was unconstitutional, and the Wisconsin Attorney General, Jim Doyle, also appealed. Attorney General Doyle and I had a friendly competition over which of our appeals, if any, would be granted certiorari by the U.S. Supreme Court, thus giving one of us the opportunity of a lifetime to argue the case before the U.S. Supreme Court. As they say, timing is everything. The Wisconsin case was granted certiorari, and we filed an amicus curiae (“friend of the court”) brief in support of the State of Wisconsin’s position.

The U.S. Supreme Court, in the landmark case of Wisconsin v. Mitchell , 508 U.S. 476 (1993), unanimously held that the Wisconsin Hate Crime Law (virtually identical to Ohio’s law), that enhanced penalties for racially motivated crime, was constitutional and did not violate the First Amendment because it punished conduct, not speech or thought.

As a result, on remand from the U.S. Supreme Court, the Ohio Supreme Court vacated its earlier opinion and upheld the constitutionality of Ohio’s Hate Crime Law.

In the coming weeks and months, state legislatures, including the Ohio legislature, and the U.S. Congress will consider passing Red Flag laws, also called extreme risk protection orders, which allow courts to issue orders allowing law enforcement to temporarily seize firearms from people who’ve committed no crime but are believed to be a danger to themselves or others. See my interview about red flag laws on WKYC-TV

Do such laws violate the due process of the person whose guns have been seized?

Balancing individual rights against community interests is a constant facet of life in a free society. Once again, legislators, and eventually the courts, will have to balance conflicting and competing rights, interests, and values.

*This Week’s Monday Moment:  Hate Speech and the First Amendment

 Have a great day. Have a great week.

 For copies of past messages, please go to this link: Monday Morning Messages

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My views in all my Monday Morning Messages are my personal views alone and do not reflect the views of our law school or our university.

My best,


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