In the early 1990’s at the Supreme Court, the First Amendment, and the tolerance movement collided. In two cases R.A.V. v. St. Paul, Minnesota and Wisconsin v. Mitchell, the Supreme Court tried to carve out a constitutional compromise. Refusing to diminish free speech rights, following in the footsteps of NSPA v. Village of Skokie and Brandenburg v. Ohio, the Court protected speech that most individuals would condemn. In R.A.V., a minor burned a cross on the lawn of an African-American family; he was convicted of a misdemeanor under St. Paul’s Bias-Motivated Crime Ordinance. The Court held that the ordinance was facially invalid because it was content-based and so ran afoul of the right of free speech.
In Wisconsin v. Mitchell, Todd Mitchell was convicted of aggravated battery and additional time was added onto his sentence due to the targeting of the victim based upon race. The justices allowed the sentence enhancement as the state was prohibiting conduct, rather than proscribing what is “orthodox in politics, nationalism, religion…” (West Virginia v. Barnette 1943). The conduct, assault, has no protection under the First Amendment and the state can prohibit or punish “bias inspired conduct” (Wisconsin v. Mitchell 1993). In this set of cases the Court drew a dividing line between “hate speech” and “hate conduct.”
Students often wonder about the dissemination of and response to rulings. This is a clear case where a distinction made by the Supreme Court has resulted in new policies and responses on campuses and in cities. A new lexicon has developed to walk this constitutional divide. Hate incidents are defined as being similar to the action taken in R.A.V. The speech or conduct is seen as expressive and is thus protected by the Constitution. Hate crimes, on the other hand, are conduct that is defined as having little or no expressive content under Mitchell and Black, and do not receive First Amendment protection.
On October 17, 2011, the Technician, North Carolina State University’s student newspaper reported that the GLBT Center on campus was vandalized with anti-gay slurs spray painted across the door and display cases. Unfortunately, similar instances occur at localities and campuses nationwide. For example, on October 15, 2011, a Christian school in Chicago was vandalized for hosting an anti-gay speaker, and in February of 2010, the LGBT center at UC Davis was also vandalized.
Under NC State policy, the spray painting of anti-gay slurs was categorized as a hate incident rather than a hate crime because the speech was not directed at any individual; a campus officer noted that no one was singled out as no names were used. North Carolina State’s response is a clear application of Supreme Court precedents.
However, vandalism, like that against an LGBT center, clearly runs afoul of most university missions that support tolerance and diversity. Universities, and perhaps localities, have to balance their policies so that both the goal of tolerance and the freedoms of the First Amendment are respected. At my university hate crimes can be, if the victim wishes, reported to the police for criminal charges. The crimes can include harassment, cyberbullying, or derogatory statements or conduct directed at an individual. Responses to hate incidents clearly reflect the R.A.V./Mitchell distinction. These incidents can be reported and there are outreach programs in place to counsel victims and start conversations about appropriate conduct and speech on our campus. The response is ‘in-house’ and state sanction is not an option.
 In VA v. Black (2003), the Court allowed Virginia’s cross burning statute and distinguished the narrow criminal statute that banned cross burning with the intent to intimidate from the broader hate crime legislation at issue in R.A.V.
 As your Rights, Liberties, and Justice text notes on page 255, there were other categories such as color, disability and sexual orientation included in the statute as well.