Can a Fighting Words Charge Lead to a Higher Sentence Because of the Defendant’s Racial Motivation?
“Fighting words”—face-to-face personal insults that are likely to start a fight—are generally constitutionally unprotected, and can be criminally punished (usually under disorderly conduct statutes). But in R.A.V. v. City of St. Paul (1992), the Supreme Court struck down a statute that imposed heightened punishment on those “fighting words” that “arouse[] anger, alarm or resentment in others on the basis of race”: Even when some speech (e.g., fighting words, libel, obscenity, etc.) is constitutionally unprotected, the law can’t selectively impose extra punishment on unprotected speech that, say, expresses racist views.
Yet in Wisconsin v. Mitchell (1993), the Supreme Court unanimously upheld a “hate crime” statute that imposed extra punishment on defendants who chose their targets based on race, religion, or the like. The law, the Court held, punished conduct (there, aggravated battery) coupled with discriminatory victim selection: “whereas the ordinance struck down in R.A.V. was explicitly directed at expression …, the statute in this case [Mitchell] is aimed at conduct unprotected by the First Amendment.”
And “[t]he defendant’s motive for committing the offense is one important factor” in sentencing. “[I]n many States the commission of a murder, or other capital offense, for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute”; likewise, the Court held, the deliberate selection of a victim based on race can be an aggravating circumstance, too, including in noncapital cases.
Now I actually think both R.A.V. and Mitchell are correct, and are consistent with each other. But of course this raises the question: What happens if a hate crime enhancement is imposed on a crime that (unlike aggravated battery) involves speech, e.g., disorderly conduct via fighting words?
In Thursday’s decision in City of Columbus v. Fabich, the Ohio Court of Appeals held that this is fine under Mitchell (in an opinion by Judge Jennifer L. Brunner, joined by Judges Julia L. Dorrian and Laurel Beatty Blunt). First, an excerpt of the facts, which are important because they shed light on the defendant’s motivation:
[Willis] Brown testified that he lived on North Monroe Avenue and was a Near East Area Commissioner for his neighborhood. Fabich, he said, was a long-time neighbor who lived on the same street approximately one block away. Brown recounted that he and another neighbor, Dana Moessner, were admiring landscaping that Moessner had done for Fabich’s next door neighbor when Fabich pulled up in his car. According to Brown, Fabich got out of the car and expressed the opinion that Brown and Moessner (who was also an area commissioner) were not good commissioners….
During Brown’s direct testimony, video of a portion of the altercation was played…. Fabich can be heard to repeatedly say, “Bye Nigger Brown,” “go away, Nigger Brown,” and other similar remarks to someone off screen. The person off screen (whom the parties apparently do not dispute was Willis Brown) can be heard shouting back at intervals urging Fabich to “be respectful” and not to “call people names.” At one point, Fabich tells the person off screen, “Go back to your plantation.” At another point, he appears to say, “If you’re calling me Tarzan, you’re Nigger Brown.” Later he says, “If you’re going to make fun of my whiteness, we’re going to have it out.” Shortly before the end of the recording, Fabich says, “You called me Tarzan. Let’s have some race fun.” …
Fabich testified that he was engaged in unloading … plants from his car in fr
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