I wanted to comment briefly on one of the cases recently accepted by the Wisconsin Supreme Court, as reported here by Jessica Slavin.

In State v. Welda, the court will consider the application of the hate crime penalty enhancer set forth in § 939.645(1) providing for increased penalties where the state can prove that a defendant “[i]ntentionally select[ed] the person against whom the crime . . . is committed . . . in whole or in part because of the actor’s belief or perception regarding the race . . . of that person . . . .”

Without getting into the distasteful detail, the defendants were convicted of disorderly conduct arising out of what seems to be an argument with some African-American passers-by who objected to the defendants’ repeated use of the n-word.

There are some not very interesting (and not particularly powerful) arguments that the comments were not directed to the African-American complainants.

But there are three things that I think merit comment.

1. The defendants made a multiplicity argument against the complaint. It is certainly plausible that the entire basis of the disorderly conduct charge here is the use of racist language. Can the same language that constitutes disorderly conduct also support a hate crime enhancer?

I think so. The statute enhances penalties because a victim was selected on the basis of race. It also seems likely that the state proved that the disruptive language would not have been directed against the passers-by were they not black. (It is possible that the passers-by would not have objected to the use of racist language that may originally not have been directed toward them if they were not black, but the incident seems to have escalated beyond an overheard racist conversation. )

2. Here the “selection” issue might be fairly easy, but I have always wondered about the extent to which that element can be inferred from the mere use of racist language. Imagine, for example, a fight in a bar a black and a white patron which arises from a disagreement over the advances thought to be made by one to the date of the other or, perhaps even more provocatively, a disagreement over the relative merits of Brett Favre and Aaron Rodgers. Once the dispute has begun, racial slurs are made. Can we really infer a racial motivation or might it be equally plausible that one person, angry at another for nonracial reasons, has simply reached for the most hurtful thing he can say?

3. But, as I say, this may not be a good case to explore the potential problems presented by that scenario.

But is it possible that this case will become a vehicle for the use of New Federalism, i.e., the idea that a state constitutional provision can be interpreted differently from the United States Supreme Court’s interpretation of a cognate provision in the federal constitution. Wisconsin’s hate crime enhanced was upheld over a First Amendment challenge by a unanimous Supreme Court in Wisconsin v. Mitchell.

In doing so, it overturned a decision by the Wisconsin Supreme Court that struck down the enhancer on First Amendment grounds, because, in the court’s view, it punished what “the legislature has deemed an offensive thought.”

The Wisconsin Supreme Court did not consider state constitutional claims, but what if the constitutionality of the enhancer is revisited under Article I, section 3 of the Wisconsin Constitution?

Only one of the Justices on the the Mitchell court remains, now-Chief Justice Abrahamson, who voted, in dissent, to uphold the enhancer.

But apart from that, I wouldn’t predict such an outcome. But the case illustrates that New Federalism can cut in a number of different ways.