Реферат: Mitchell V Wisconsin Essay Research Paper

376). Therefore, a more accurate interpretation of O?Brien, would be

that it actually supports an argument against the Court?s ruling in

WIsconsin, and is not a precedent to support Rehnquist?s decision.

Possibly more important, and certainly more recent, is the precedent

established in R.A.V. v. St. Paul, a 1992 case. This case involved a

juvenille who was convicted under the St. Paul Bias-Motivated Crime

Ordinance for burning a cross in the yard of a black family that lived

across the street from the petitioner. Justice Scalia delivered the

opinion of a unanimous Court, but the Court was divided in its

opinions for overturning the St. Paul statute.

Scalia argued that the city ordinance was overbroad, because it

punished nearly all controversial characterizations likely to arouse

?resentment? among defined protected groups, and under-inclusive,

because the government must not selectively penalize fighting words

directed at some groups while not prosecuting those addressed to

others, which is where the problem lies in the logic of the Mitchell

decision. Though Rehnquist argued that Wisconsin v. Mitchell did not

overturn R.A.V. v. St. Paul, ?If a hate speech law that enumerated

some categories is invalid because, in Justice Antonin Scalia?s

opinion in St. Paul, ?government may not regulate use based on

hostility- or favoritism- toward the underlying message involved,? how

can a hate crime law be upheld that increases the penalty for crimes

motivated by some hates but not those motivated by other hates?? In

other words, if the St. Paul statute is determined to be

under-inclusive, how can we include every conceivable hate within the

context of any statute.

?To be consistent, legislature?s must now include other categories,

including sex, physical characteristics, age, party affiliation,

anti-Americanism or position on abortion.?(Feingeld, 16)