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| | | | | American Constitutional Law, Volume One
Gregg Ivers, American University
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Case Problems
Chapter Four: Legislative Power
The Brotherhood and Understanding Act of 2000
In October 2000, President Robert Hudson signed into the law the Brotherhood and Understanding Act. The stated purpose of the law was to "deter, through education and more targeted law enforcement, crimes committed against persons based on their race, sex, color, ethnic origin, physical or mental disability or sexual orientation." The statute required federal law enforcement agencies to collect and maintain data on crimes perpetrated against persons described in the above categories. It also offered stiffer criminal penalties for persons convicted of such crimes. A decade before, the Civil Liberties Association of America (CLAA) objected to a state-level version of this law. The CLAA claimed that prosecuting persons for crimes against some persons based on "bias-motivated" conduct violated the First Amendment rights of the perpetrators because it punished them for their racist beliefs. In 1990, the United States Supreme Court rejected that argument in Wisconsin v. Mitchell (1990). In that case, a unanimous Court ruled that a state law enhancing punishment for bias-motivated crime punished conduct, not thoughts. The Court likened the statute’s penalty-enhancement provisions to federal civil rights laws that prohibit discrimination on the basis of race, ethnic origin, sex, religion, color, and disability.
The most controversial provision of the Brotherhood and Understanding Act, one that had held up passage of the law for over three years, involved criminal penalties for persons who engage in "targeted verbal vilification." Specifically, this provision of the law read:
C. Targeted Vilification: A person commits the crime of "targeted vilification" by knowingly engaging in the use of "fighting words," or those words or actions which one knows or has reasonable grounds to know arouse anger, alarm or violence in others based on race, sex, color, ethnic origin, mental or physical disability, or sexual orientation.
1. "Targeted vilification" is defined as the deliberate use of "fighting words" in direct or close proximity to persons defined in Section C."
2. "Target vilification" is limited to person-to-person contact. It does not include the transmission of information through the mass media or other venues in which a speaker is addressing a broader audience.
Less visible to the public, but of great concern to the lawyers and constitutional scholars called upon to assist in the drafting of the legislation was a separate provision on judicial review:
F. Judicial Review: If this act is challenged in an appropriate court of jurisdiction, the court shall be required to use the "reasonable person" standard of judicial review. As "fighting words" receive no constitutional protection under the First Amendment, the court cannot invoke a standard of judicial review that requires the government to demonstrate more than a rational legislative purpose."
Supporters of the Brotherhood and Understanding Act argued that Congress is fully within its power under Section 5 of the Fourteenth Amendment to enact the statute. First, the statute, consistent with South Carolina v. Katzenbach, (1965), Kaztenbach v. Morgan (1966) and Runyon v. McCreary (1976) does not create rights beyond the scope of prior judicial determination. Second, Congress possesses the unique obligation to enforce the Equal Protection Clause of the Fourteenth Amendment through appropriate legislation. Third, Congress is permitted by the Exceptions and Regulations Clause of Article III to determine the appellate jurisdiction of the federal courts.
CLAA contends that the "hate crimes" law, as such laws are often called, violates the First Amendment because it prohibits on the basis of content certain words from public expression. As a matter of legislative power, the CLAA contends that Congress has no power under Section Five of the Fourteenth Amendment to determine standards of judicial review to be used by the federal courts. Such an exercise of power interferes with the essence of the judicial function, one that properly belongs to the judicial, not legislative, branch.
Questions for Review
- Has Congress properly narrowed the definition of "fighting words" to avoid First Amendment problems?
- Is Congress within its Section Five power to enact this statute? Does this law bear any conceptual similarities to the laws at issue in the cases discussed in the Amendment-Enforcement section of this chapter?
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