Category Archives: Attorneys, Trials, and Punishments

Rights ch 12, Short Course ch 18

Science and the 6th Amendment

As reported by the Ottawa Citizen, a trial judge, applying a Canadian Supreme Court ruling, ordered a devout Muslim woman to testify in court without her niqab.[1]  She is testifying against men she accuses of sexual abuse while she was a minor.  Her religion dictates that she wears her niqab when facing men who are not relatives.  Below is a graphic from the BBC illustrating two types of Muslim face coverings.[2]


 niqab Conservative choice

The niqab is a veil for the face that leaves the area around the eyes clear. However, it may be worn with a separate eye veil. It is worn with an accompanying headscarf.

The burka is the most concealing of all Islamic veils. It covers the entire face and body, leaving just a mesh screen to see through.

There have been attempts to ban both the niqab and burka in some European countries.



This trial clearly pits the right to confront witnesses and the right to a fair trial against the free exercise of religion.  In Canada, the Supreme Court determined that this issue must be addressed on a case-by-case basis:


“A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained.  Always permitting a witness to wear the niqab would offer no protection for the accused’s fair trial interest and the state’s interest in maintaining public confidence in the administration of justice.  However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable.  The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.”[3]


Essentially, the Canadian Supreme Court set out a four-prong test for lower court judges to use when determining if the niqab interferes with the trial.  As summarized by the CBC, the prongs are:

  • Does she have a sincere belief in her religion?
  • Does wearing a veil create a serious risk to trial fairness?
  • Is there any other way to accommodate her?
  • If no, does what the court called the “salutary” effects of ordering her to remove her niqab outweigh the “deleterious” effects of doing that?[4]

The trial judge applied the test in the remanded case and found in favor of the rights of the accused.  Normally, in Canada or the U.S. this would be the end of the issue and either N.S. would testify without her niqab or the trial would not move forward.  But her lawyer is trying another tactic and using recent scientific evidence calling into question the ability of individuals to discern anything reliably from facial expressions.  This argument is similar to the argument regarding eyewitness testimony and line-ups.[5]  Simply put, humans are not good at remembering facts and faces, we are influenced by context, and we are poor judges of truth despite what we see on “The Mentalist”.[6]

Does this evidence tip the balance?  Would jurors be better judges of truth without seeing facial expressions or posture during testimony?  Are these scientific findings enough to say that due process if fulfilled even if a witness wears a niqab or burka?  And how does this balance with the right to confront accusers? In 1985, the U.S. Supreme Court said:

This Court’s Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination…

The second category of cases is exemplified by Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), in which, although some cross-examination of a prosecution witness was allowed, the trial court did not permit defense counsel to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” As the Court stated in Davis, supra, at 315, 94 S.Ct., at 1110, “confrontation means more than being allowed to confront the witness physically.” Consequently, in Davis, as in other cases involving trial court restrictions on the scope of cross-examination, the Court has recognized that Confrontation Clause questions will arise because such restrictions may “effectively . . . emasculate the right of cross-examination itself.” Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).[7]

Yet, this opinion does not address N.S.’s new argument.  What if the fallibility or emasculation lies with the jurors?  If jurors gain nothing from observing the witness or, perhaps worse make erroneous or unreliable conclusions based upon observing the witness, where does that leave the right to confront?  If evidence continues to mount—creating a nearly irrefutable Brandeis brief—free exercise would likely trump the right to confront.  But in the end, this same analysis would call into question the rationale for including that latter right in the Bill of Rights.

We have seen the Court reinterpret or alter the interpretation of these amendments over the course of our history, but we have not yet dealt with the increase of knowledge undermining the very rationale for an amendment.  In such a situation, what should the Court do?  Stick to avowed legal approaches and continue to interpret this clause fairly literally?  Or can they use founders intent and suggest that the amendment does not do what the founders intended—indeed it may undermine that intent—so we move away from a strict reading of the clause?  Its an interesting conundrum, especially for justices like Scalia who aver originalism.


[1] We wrote about the oral argument in this case back in 2011 (  Here we discussed if the Supreme Court, when it faces this issues because its bound to come up in the U.S., would use the Sherbert or the Employment Division v. Smith test.

[7] Delaware v. Fensterer (474 US 15).


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Tort reform and the right to trial

In Missouri a political battle continues over tort reform.  With a GOP supermajority, the Republicans are examining options after the Missouri Supreme Court declared a tort reform law unconstitutional.  The state law placed a cap on non-economic damages in medical malpractice cases.  The court ruled, in a split ruling, that the right to trial by jury, as codified in the MO constitution, prevents the legislative reform effort.  As reported by the AP[1], the MO court using founders intent noted that there was a right to seek such damages when the state constitution was adopted, therefore, the legislature can’t restrict the fact-finding role of the jury.

The Missouri Supreme Court’s reasoning is applicable to the 6th Amendment right to trial by jury.  The same argument was used by the Court to strike federal mandatory sentencing guidelines and similar guidelines in the state of Washington.  As Justice Scalia wrote in Blakely v. Washington (542 US 296 2004)[2]:

“… [T]he State tries to distinguish Apprendi and Ring by pointing out that the enumerated grounds for departure in its regime are illustrative rather than exhaustive. This distinction is immaterial. Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi ), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.

Because the State’s sentencing procedure did not comply with the Sixth Amendment, petitioner’s sentence is invalid.”

The next term the Court applied the same logic to the federal sentencing guidelines (543 US 220 2005).

For the issue of tort reform, it is more important to determine if the Missouri Supreme Court’s reasoning also applies to the right trial by jury in civil cases in the Missouri Constitution and by extension the the 7th Amendment.[3]  It stands to reason that facts determined by the judge (ground for departure) or by the legislature (an arbitrary cap on damages regardless of the facts of the case) are equivalent.  In neither case does “the jury’s verdict alone” determine the final outcome.  Therefore, whether the case is criminal or civil is irrelevant to the legal analysis.

However, it is also possible that the Court would distinguish tort reform from mandatory sentencing guidelines as the latter are dealing with the infringement of liberty (6th Amendment) rather than the ability to provide additional compensatory damages (i.e. pain and suffering) (7th Amendment).  Is this a legitimate distinction?  The founders did place the two ‘right to trials’ in two different amendments suggesting that they are not necessarily equivalent.  The doctrine of non-superfluous clauses could rear its head once again[4]; if the framers meant the right to trial for criminal cases and civil cases to be equivalent, then they would not have placed them in separate amendments. If the current Court is unwilling to make this distinction, then the hoopla and extensive lobbying efforts on both sides of this issue may be a large waste of time, effort, and money.  The 7th Amendment may make tort reform a moot issue for politicians and interest groups.

[3] The 7th Amendment issue is somewhat hypothetical.  The Court has not incorporated this amendment, and it would have to do so for the tort reform movement to be mooted in all states.  The argument still holds for federal tort reform.

[4] see Hurtado v. CA (page 70 of CLCA: Rights, Liberties, and Justice 8th edition).


Filed under Attorneys, Trials, and Punishments, The Legislature

It is not unusual to see an innovative statute or policy spread throughout the states.  A current obvious example would be gay marriage.  Bans on gay marriage made the ballots in waves beginning late in the 20th Century.  Hawaii and Alaska were early adopters in 1998, then Nevada in 2002.  Eleven states in 2004 adopted a ban.  Connecticut and Texas followed in 2005, and Alabama, Colorado, and Tennessee in 2006.  Florida joined this group in 2008 and North Carolina did so in the most recent election.  Now we see some diffusion of the acceptance of the right to marry as well.  Right to work laws are another example.  Political scientists often document this type of policy diffusion.

Does diffusion also work among courts?  Most certainly yes, and we have an important example that greatly affects the definition of due process and, perhaps, sharpens the right to confront witnesses.  In 2011, New Jersey recognized decades of work by psychologists and criminologists that show that eyewitness testimony can be terribly unreliable.  In State v. Henderson 208 NJ 208 (2011), we see a story of police intervention.  A witness views a photo line-up and cannot identify the perpetrator once it was narrowed down to two.  The police officers suggested that one of the two was the perpetrator then the witness identified the defendant.  The justices of the New Jersey Supreme Court first heard the case and appointed a Special Master to “evaluate scientific and other evidence about eyewitness identifications.” (page 2)  After receiving an extensive report, the justices decided that:

“We are convinced from the scientific evidence in the record that memory is malleable, and that an array of variables can affect and dilute memory and lead to misidentifications. Those factors include system variables like lineup procedures, which are within the control of the criminal justice system, and estimator variables like lighting conditions or the presence of a weapon, over which the legal system has no control. To its credit, the Attorney General’s Office incorporated scientific research on system variables into the guidelines it issued in 2001 to improve eyewitness identification procedures…

In the end, we conclude that the current standard for assessing eyewitness identification evidence does not fully meet its goals. It does not offer an adequate measure for reliability or sufficiently deter inappropriate police conduct. It also overstates the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.”

The justices of the New Jersey court determined that a defendant may raise the issue of “suggestiveness” at the pre-trial stage.  “Suggestiveness” indicates that the testimony was subject to suggestion by investigators and is unreliable.   Additionally, the judicial system must create new language for jury charges when dealing with eyewitness testimony.  The justices were very direct in their charge to the Criminal Practice Committee and the Committee on Model Criminal Jury Chargers.  The court instructed the two committees “to consider all of the system[1] and estimator[2] variables in section VI for which we have found scientific support that is generally accepted by experts…”  The justices did not require the committees to adopt the language from the Innocence Project, they did ask the committees to examine their recommendations in the course of their work.

At the end of November 2012, the Oregon Supreme Court explicitly followed New Jersey’s lead and went a bit farther.  In Oregon, the state now bears the burden of proving that the eyewitness testimony should be admissible, rather than having the defendant have to prove that the testimony is questionable.  Even if the state meets the burden, the defendant can still argue that the evidence is prejudicial and the judge can exclude it.

The Oregon case was really two similar cases placed together; at issue in both was the use of eyewitness testimony from witnesses that “had been subject to an unduly suggestive police procedure…” (page 1 of opinion).  In State v. Lawson, a husband and wife were shot while camping in a national forest.  The wife, Mrs. Hilde, spoke to medical personnel at the scene and to the police several times while receiving treatments and after being discharged from the hospital.  In each interview, Mrs. Hilde could not identify the perpetrator until the final interview.  This interview took place more than a month after the incident. In the fourth interview, “one of the detectives and Mrs. Hilde reviewed her answer to the leading questions that she had been asked at the first interview.” (page 4)  Afterwards, she picked out the squatter as the shooter.  In the intervening years before trial, the police showed Mrs. Hilde the defendant’s picture several more times.

In the second case, State v. James, a local grocery store was robbed and a store employee provided descriptions of the suspects and details of the theft as soon as peace officers arrived.  Later that day, the officer saw two men that fit the descriptions, found them in possession of alcohol similar to that taken, and asked the suspects to accompany him to the grocery store.  The suspects agreed and they were identified as the perpetrators.  (page 9)

Will this new trend diffuse to other states?  It’s quite likely.  The American Judges Association’s journal, Court Review, just came out.  The American Judges Association boasts 3,000 current and former judges as its members.  It is a special issue focusing solely on eyewitness evidence, and includes articles from some of the top researchers in the field.

While the Innocence Project and others have researched, published, and debated the efficacy of eyewitness testimony, judges and/or legislators must accept these results for change to occur.  Now the results of the scientific work are being codified in state law.  The New Jersey Supreme Court’s opinion in Henderson reads, in many places, like a research article.  Here we see the clear use of a great deal of scientific evidence to enhance the underlying purpose of the criminal justice system—the state must prove guilt beyond a reasonable doubt.  The use of faulty or unreliable testimony to incarcerate individuals works against that very purpose.  If the testimony is, by definition, doubtful, then more caution should be shown before accepting the statements of eyewitnesses.



[1] System variables are those within a state’s control. The system variables are: blind administration; pre-identification instructions; lineup construction; avoiding feedback and recording confidence; multiple viewings; simultaneous v. sequential lineups; composites; show-ups.

[2] Estimator variables are those beyond the state’s control.  The estimator variables are: stress; weapon focus; duration; distance and lighting; witness characteristics; characteristics of perpetrator; memory decay; race-bias; private actors; speed of identification.

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The Effect of the USSC Decisions on State Criminal Justice Systems

Its not often that we know what the fall-out is after a Supreme Court decisions tells the states that some of its criminal justice practices are no longer permissible.  Yet, the Tampa Tribune did exactly that on September 2, 2012.[1]  In Courts grappling with juveniles’ life sentences[2], we hear from county prosecutors and public defenders on the fall out from both Miller v. Alabama No. 10-9646 (2012) and Graham v. Florida No. 08-7412 (2010).  Both of these cases dealt with juvenile sentencing and the eighth amendment.  First, in Graham, the Court invalidated sentencing juveniles to life without parole for any crime less than homicide as violating the Eighth Amendment.  Then in Miller, the Court went a step further and struck down sentencing schemes that required life without parole for juveniles convicted of homicide.  Taken together, the cases disallow the sentencing of juveniles to life.

The Court clearly seems to be on track to forcing state criminal justice systems to be more lenient toward anyone convicted before majority. [3]  And, as is usual the Court in these cases did not answer any questions that are not asked.  In each one (Roper, Graham and Miller) the Court took the most severe juvenile sentence off the menu leaving the states to grapple with the question of what is next?  What types of sentences will be judged constitutional?

According to the Tampa Tribune, judges and prosecutors are working like actuarial accountants—investigating the life expectancy and working backwards to create sentences that would be in the ‘safe zone’.  Yet, there is no consistency and sentencing is now variable and individual; “Part depends on who the judge is, who the prosecutor is, how the person has done since incarcerated…” said a Miami Dade public defender.

And the article also points out the loophole left to prosecutors—the Court disallowed automatic sentencing of life without parole.  Life without parole may still be constitutional as may long sentences of seventy-five plus years since the word ‘life’ is not mentioned.  Or, is the invalidation of life sentences for juveniles the next step for the Court and should states get ahead of the curve and simply adjust now?

The decisions of the Supreme Court do not necessarily make life easier on those that must apply them, and clearly in this case, the decisions do not help the lower courts that must now determine what sentences are still viable under the new rulings.  This article is a great resource for showing students the trickle down effects of a decision and the open-ended nature of all the questions we investigate when we study constitutional law.

[1] A hat tip goes to the Sentencing Law and Policy Blog for pointing out the article.

[3] Recall in Roper v. Simmons 543 US 551 (2005) the Court ruled that capital punishment for juveniles is unconstitutional under the Eighth Amendment.

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Jury Tampering or Free Speech?

In the Southern District of New York, there is a battle brewing between the first amendment and the sixth amendment.  Federal prosecutors have charged Julian P. Heicklen with jury tampering.  How did the 79-year-old retired professor tamper with the jury?  He stood outside the federal courthouse and handed out information about jury nullification.

Jury nullification is defined as juries voting based upon their moral compass rather than the facts of the case or the law.  If jurors believe punishments are too harsh or the law criminalizes acceptable behavior, they refuse to convict thus negating or nullifying the law.  Jury nullification is about as old as juries, dating back to the 1400’s.  Jury nullification forced reforms of the British penal code in the 1800’s; by refusing to apply the death penalty for less serious offenses about 100 crimes were delisted as punishable by death.  Julian Heicklen is trying to create the same type of grassroots movement to alter the laws criminalizing gambling and drug possession/use—crimes that are often categorized as victimless crimes.

Based upon a conversation with an uncover agent, federal prosecutors allege that Heicklen was specifically targeting jurors rather than exercising his right to free speech; attempting to sway jurors to make a decision unrelated to the facts of the case is one of the definitions of jury tampering.  However, standing outside of a courthouse, behind a sign reading “Juror Information”, handing out informational pamphlets about jury nullification does not guarantee that the intended audience will be reached.  Anyone could receive a pamphlet.  So, is this interference with our criminal justice system, free speech, or both?

Perhaps the real question is by what standard will the application of the jury tampering statute to this instance of speech be judged?  There are several possibilities.  First, is a courthouse an appropriate venue for speech?  Is it a public forum?  Lawyers often discuss cases with reporters in front of courthouses.  Heinklen’s position was not blocking proper operation of the courthouse (Adderly v. FL)[1]. Courthouses are generally open to the public, and in Cohen v. CA, the Court allowed Cohen’s political jacket inside the courthouse.  It seems the Court has recognized the courthouse as a viable platform for speech.  But Cohen’s jacket was not directly influencing or trying to influence the outcome of any criminal or civil proceeding.

Second, does the subject matter of the speech change the ability of state to restrict the speech?  Normally, a law targeting speech would be subject to strict scrutiny.  Here the government’s interest is protecting the criminal justice system—likely a compelling interest in the eyes of the justices.  Writing for[2], two New York lawyers suggest it is and offer us a third standard.  They invoke the clear and present danger test for justifying restricting Heicklen’s speech.[3]  To make their point, they present a hypothetical situation from the civil side of the system.  What if you are defending a corporate entity in a liability suit where ‘liability is very thin.’  What would happen if protestors outside the courthouse during the lunch break hand out information to deliberating jurors (among others) that suggest voting for the ‘little guy’ regardless of the facts presented during trial?  Trying to sway jurors based upon emotions or sense of moral outrage, suggest the lawyers, prohibits due process and creates a clear and present danger.

Connecticut Fathers for Justice would disagree that such speech interferes with due process.  This group staged a protest in front of the Danbury Courthouse trying to raise awareness of the bias in custody battles against fathers; the prejudice against fathers in custody suits, according to the group, is a violation of due process.  Using their right of free speech, these men are protesting what they perceive as systemic unfairness.  Is this also tampering with the system?  Are they targeting judges and trying to influence the decisions in custody battles, as well as raise awareness?  Yes.  Should this speech be prosecuted as well?

Fourth, even if we grant that the speech may impact due process does it rise to the level of a clear and present danger?  In Schenck, the leaflets were mailed directly to men heading off to military service after being drafted.  Here, Heicklen provides information to those that entering a courthouse.  His aim is similar to Schenck’s—disrupt the normal operations of the government.  However, no one must take his pamphlet or speak with him.  So is his action more akin to Cohen’s jacket where you can simply ignore the message or Schenck’s targeting of draftees?

The prosecution of Heicklen presents an interesting mix of criminal due process and free speech that is not easy to disentangle.  Was it a clear and present danger or even clear and probable danger?  Or was it simply that free speech informing citizens of their discretion as jurors that was detrimental to the government’s goals?

[3] In the blog piece, some of the material Heicklen passed out is quoted.  “The judge will instruct the jury that it must uphold the law as he gives it. He will be lying. The jury must judge the law as well as the facts. Juries were instituted to protect citizens from the tyranny of the government. It is not the duty of the jury to uphold the law. It is the jury’s duty to see that justice is done.”  Another publication contained this question and answer: “Once on a jury, must I use the law as given by the judge, even if I think it’s a bad law, or wrongly applied?The answer is ‘No. You are free to vote on the verdict according to your conscience.’”


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Battle of the Amendments: Sixth versus First

Last week the Canadian Supreme Court heard a case that pits two rights against one another—the right to confront witnesses and the freedom of religion.  The circumstances are just as likely to appear in a U.S. courtroom as a Canadian one.   And the issue may trouble the justices here as much as it does in Canada.  How do you balance the right to a fair trial (specifically the right to confront a witness) with a religious proscription that requires the covering of one’s face?  In the instant case, the witness wears a niqab, or mask, that covers the face.  The defense counsel is arguing that the wearing of the religious garment is preventing a fair trial for his client.

In the United States, the Supreme Court has been fairly strict on the interpretation of the confrontation clause as it relates to a fair trial.  In Coy v. Iowa 486 U.S. 1012 (1988)[1], the Court determined that a witness cannot be placed behind a screen to avoid the emotional stress of testifying.  In Coy, the state was protecting a child from undue or additional emotional stress; the defendant was charged with two counts of lascivious acts with a child.  Using a literal approach, Justice Scalia along with Brennan, Marshall, O’Connor, Stevens, and White, found that despite the state’s interest of the ‘presumption of trauma’[2], the defendant has a right to a face-to-face confrontation and the screen impeded that right.

Two years later, the Court seemed to soften its view on this issue, again dealing with a state’s attempt to protect a witness in a child abuse and sex case.  In Maryland v. Craig 497 US 836 (1990), a bare majority of justices allowed Maryland to substitute a closed circuit TV transmission for face-to-face testimony.  The jury, the judge, and the defendant would all see the transmission together and the defense would have the ability to cross-examie.  For Justices O’Connor, Blackmun, Kennedy, Rehnquist, and White, this modification was sufficient to provide for the right and in her opinion, Justice O’Connor broadened the definition of “confront” from simple face-to-face accusation to include oaths, cross-examinations, and observation of the demeanor of the witness. Thus the Court allowed Maryland this deviation because “[w]e find it significant, however, that Maryland’s procedure preserves all of the other elements of the confrontation right.”[3]

In the case before the Canadian Supreme Court, closed circuit viewing of testimony is not an option.  The witness’s face will be covered by her niqab on video or in person.  There is no way, save forcing her to remove her veil, to provide the defendant and the jury with the ability to see her face and her expression while she provides testimony.  In the prior cases, the Supreme Court was balancing a state’s interest in protecting child witnesses against a fundamental right.  Clearly, the Court found the state’s interest to be important; however, the states were not given a lot of discretion in creating alternatives to the right to confront.  The right to free exercise of religion is also a fundamental right—one that the Court has held up against strong state interests in cases like Sherbert v. Verner 374 US 398 (1963)[4] and Thomas v. Review Board of Indiana Employment Security Division 450 US 707 (1981).[5]  However, the guarantee of a fair trial is certainly more compelling than a desire to stop fraudulent unemployment claims.

Two questions arise from considering this situation in the US context.  First, would the Court use the Sherbert line of cases to find that this right to exercise is a fundamental right and employ strict scrutiny or would this case be more similar to Employment Division v. Smith  494 US 872 (1990)[6] with the Court applying the belief versus action doctrine?  And, even if strict scrutiny is employed, which right wins this balancing contest?

[2] Scalia, penultimate paragraph of the Epstein and Walker excerpt.  See note 1

[4] Page 106 of the Civil Liberties text.

[6] Recall that in Church of the Lukumi Babalu Aye v. City of Hialeah 508 US 520 (1993) the Court found that if a law targets a religion, then strict scrutiny will still be employed.

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Policy Impact of a Supreme Court Decision

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.[1]

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.[2]  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.

[1] 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.

[2] 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.

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