The American Heritage Dictionary defines hate as intense dislike or animosity. However, defining hate as the basis for a crime is not as easy without possibly jeopardizing constitutional rights in the process. Hate crime laws generally add enhanced punishments to existing statues. A hate crime law seeks to treat a crime, if it can be demonstrated that the offense was a hate crime differently from the way it would be treated under ordinary criminal law.
Since the 1980s, the problem of hate crimes has attracted increasing research attention, especially from criminologists and law enforcement personnel who have focused primarily on documenting the prevalence of the problem and formulation criminal justice responses to it. Lawmakers have passed legislation to encourage data collection and attach enhanced penalties to hate crimes at both state and federal levels.
When Americans are assaulted merely because of their real or perceived sexual orientation, gender, or disability, the law should be as tough on their assailants as it currently is tough on criminals who attack based on racial, religious, or ethnic bias. Yet only in rare circumstances can the federal government investigate and prosecute hate violence against gays, lesbians, or bisexuals.
Attempts have been made to reach a definition of hate crime, including that it is a crime, most commonly violence, motivated by prejudice, bias or hatred towards a particular group of which the victim is rarely significant to the offender and is most commonly a stranger to him or her. The current law (18 U. S. C. 245) permits federal prosecution of a hate crime only if the crime was motivated by bias based on race, religion, national origin, or color, and the assailant intended to prevent the victim from exercising a “federally protected right” (e. . voting, attending school, etc. )
This dual requirement substantially limits the potential for federal assistance in investigating or prosecuting hate crimes, even when the crime is particularly heinous. Hate crimes demand a priority response because of their special emotional and psychological impact on the victim and the victims community. The damage done by hate crimes cannot be measured solely in terms of physical injury or dollars and cents.
Hate crimes may effectively intimidate other members of the victims community, leaving them feeling isolated, vulnerable and unprotected by the law. By making members of minority communities fearful, angry and suspicious of other groups and the power structure that is supposed to protect them. These incidents can damage the fabric of our society and fragment communities.
Hate Crimes are becoming more and more common in the United States. In a report released February 13, 2001, the FBI said 7,876 hate crimes were reported in the United State in 1999. The latest figures represent an increase over the 7,755 hate crimes reported in 1998, but the difference may not be significant because more agencies were reporting such crimes to the FBI in 1999. The figures are in the FBIs Hate Crime Statistics, an annual publication. Seventeen people were murdered in incidents classified as hate crimes, compared to 13 in 1998.
Of the total the 7,876 incidents, racial bias was associated with 54. 5 percent of the cases, followed by religious bias at 17. 9 percent, sexual bias at 16. 7, percent ethnic bias at 10. 5 percent and bias against the disabled at . 24 percent. Intimidation was the most frequently reported hate crime, accounting for 35. 1 percent of the total. Vandalism accounted for 28. 5 percent of the total. Assault and aggravated assault comprised 19 percent and 12 percent, respectively, of all reported hate crimes.
The report said that 12,122 law enforcement agencies in 48 states and the District of Columbia reported hate crimes. Texas had no hate crimes law on the books when James Byrd Jr. was dragged to his death behind a pickup truck. Nor did Wyoming when Matthew Shepard was tied to a fence and beaten to death. And that, Bill Clinton and Ted Kennedy and others claim, is why a federal hate crime law should be enacted. Crimes that are motivated by hate really are fundamentally different, Clinton said after meeting with Byrds sister and nephew, and I believe should be treated differently under the law.
Some examples of crimes that were outside federal jurisdiction but could have been prosecuted under the proposed hate crime legislation: In December 1995, self-identified neo-Nazi skinheads murdered two African American residents of Fayetteville, N. C. The victims were selected solely because of their skin color. In April 1994, two African-American men murdered a white father of three in Lubbock, Texas; the killers later stated that they set out to find a white victim. In January 1996, two men in Houston stabbed a gay man 35 times, killing him.
Evidence showed that the assailant s bragged about hating homosexuals and had traveled to Houston in part to commit violence against gay people. Everybody agrees it was a horrible way to treat a human being and openly gay man beaten senseless on the Wyoming prairie and left alone to die in the frigid night tethered to a fence. But Matthew Shepard death, as disturbing as it is, has only re-ignited a set of questions that have slowed efforts to expand federal hate crimes laws: Just what is a hate crime?
Should a crime against gays and lesbians be punished differently from one against other Americans? If hate crimes are punished separately, would it deter such violence or encourage it. Shepard death has given new energy to gay or lesbian activists who say existing laws fail to protect them from random violence. It was clear to most Americans that this was a hate crime. This was a crime committed to send a message. The Supreme Court has already concluded otherwise.
On June 11, 1993, the United State Supreme Court upheld Wisconsin’s penalty enhancement law, which imposes harsher sentences on criminals who “intentionally select the person against whom the crime… is committed because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person. ” Chief Justice Rehnquist delivered the opinion of the unanimous Court. This paper argues against the decision, and will attempt to prove the unconstitutionality of such penalty enhancement laws.
On the evening of October 7, 1989, Mitchell and a group of young black men attacked and severely beat a lone white boy. The group had just finished watching the film “Mississippi Burning”, in which a young black boy was, while praying, beaten by a white man. After the film, the group moved outside and Mitchell asked if they felt “hyped up to move on some white people”. When the white boy approached Mitchell said, “You all want to fuck somebody up? There goes a white boy, Go get him.
The boy was left unconscious, and remained in a coma for four days. Mitchell was convicted of aggravated battery, which carries a two year maximum sentence. The Wisconsin jury, however, found that because Mitchell selected his victim based on race, the penalty enhancement law allowed Mitchell to be sentenced to up to seven years. The jury sentenced Mitchell to four years, twice the maximum for the crime he committed without the penalty enhancement law. The U. S. Supreme Court’s ruling was faulty, and defied a number of precedents.
The Wisconsin law is unconstitutional, and is essentially unenforceable. This paper primarily focuses on the constitutional arguments against Chief Justice Rehnquist’s decision and the statute itself, but will also consider the practical implications of the Wisconsin law, as well as a similar law passed under the new federal crime bill (Cacas, 32). The Wisconsin law and the new federal law are based on a model created by the Anti-Defamation League in response to a rising tide of hate-related violent crimes (Cacas, 33).
Figures released by the Federal Bureau of Investigation show that 7,684 hate crimes motivated by race, religion, ethnicity, and sexual orientation were reported in 1993, up from 6,623 the previous year. Of those crimes in 1993, 62 percent were racially motivated (Cacas, 32). Certainly, this is a problem the nation must address. Unfortunately, the Supreme Court of the United States and both the Wisconsin and federal governments have chosen to address this problem in a way that is grossly unconstitutional.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the government for a redress of grievances. ” The most obvious arguments against the Mitchell decision are those dealing with the First Amendment. In fact, the Wisconsin Supreme Court ruled that the state statute was unconstitutional in their decision, which the U. S. Supreme Court overruled.
The Wisconsin Supreme Court argued that the Wisconsin penalty enhancement statute “violates the First Amendment directly by punishing what the legislature has deemed offensive thought. ” The Wisconsin Court also rejected the state’s argument “that the statute punishes only the conduct’ of intentional selection of a victim”. The Court’s contention was that “the statute punishes because of’ the aspect of the defendant’s selection, the reason the defendant selected the victim, the motive behind the selection.
The law is in fact a direct violation of the First Amendment, according to the Wisconsin Supreme Court, which said, “the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees. ” “If there is a bedrock principal underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”. The Supreme Court was heard to utter such noble phrases as recently as 1989, in Texas v. Johnson.
Unfortunately these idealistic principles seem to have been abandoned during Wisconsin v. Mitchell. Clearly, Mitchell’s act of assaulting another human is a punishable crime, and no one could logically argue that the First Amendment protects this clearly criminal action. However, the state’s power to punish the action does not remove the constitutional barrier to punishing the criminal’s thoughts (Cacas, 337). The First Amendment has generally been interpreted to protect the thoughts, as well as the speech, of an individual (Cacas, 338).
According to the Court’s majority opinion in Wooley v. Maynard, a 1977 case, “At the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and his conscience rather than coerced by the state. ” Another component of Mitchell’s First Amendment argument against the penalty enhancement law was that the statute was overbroad, and might have a “chilling effect” on free speech.
Mitchell contended that with such a penalty enhancement law, many citizens would be hesitant to express their unpopular opinions, for fear that those opinions would be used against them in the future. In Abrams v. United States, Justice Holmes, in his dissent, argued that “laws which limit or chill thought and expression detract from the goal of insuring the viability of the broadest possible range of ideas and expression in the marketplace of ideas”.
Chief Justice Rehnquist, however, rejects the notion that the Wisconsin statute could have a chilling effect on speech. “We must conjure up a vision of a Wisconsin citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered by the statute, these opinions will be offered at trial to establish that he selected his victim on account of the victim’s protected status, thus qualifying him for penalty enhancement… This is too speculative a hypothesis to support Mitchell’s over breadth claim.
However, a legitimate argument certainly exists that the logical next step would be to examine the conversations, correspondence, and other expressions of the accused person to determine whether a hate motive prompted the crime, if a criminal’s sentence is being considered for penalty enhancement (Feingod, 16). How can Rehnquist argue that this will not cause a chilling effect? Rehnquist denies this chilling effect exists under penalty enhancement laws such as Wisconsin’s, but one must consider how Rehnquist would rule if the penalty enhancement did not cover something, such as racism, that he finds personally repugnant.
The recent attempt at “political correctness” differs only slightly from the Red Scare of the 1950’s. The anti-communists claimed and the politically correct ideologists claim to have good intentions (The Road to Hell… ). Unfortunately, these two groups infringed upon the rights of the minority in their quest to mold the thoughts of others into ideas similar to their own. How would Rehnquist rule if the statute called for enhanced penalties for persons convicted of crimes while expressing Communist ideas?
Or what if the criminal was Mormon, and the majority found those religious views morally repugnant? Could Rehnquist also justify suppressing the religious freedoms found in the First Amendment, as well as its free speech clause, if they were found to be as reprehensible as racism by the general public? The United States Supreme Court is granting selective protection of First Amendment rights, in Mitchell v. Wisconsin, and is yielding to political pressure to suppress bigoted views. Mitchell’s second constitutional argument is that the statute violates the Fourteenth Amendment as well as the First.
The Fourteenth Amendment contains the “equal protection clause”, which states that no state shall “deny to any person within its jurisdiction the equal protection of the laws”. The Wisconsin statute punishes offenders more seriously because of the views they express, and punishes more leniently those whose motives are of an “acceptable” nature (Gellman, 379). This seems to be a clear violation of the Fourteenth Amendment, but again, Rehnquist (and the entire Supreme Court), sees things quite differently.
Rehnquist argues that, “The First Amendment… does not prohibit the evidentiary use of speech to establish the elements of a crime and to prove motive or intent”. Motive, however, is used to establish guilt or innocence, and is not in itself a crime. Undeniably, however, those that express bigoted views are punished more severely than those who do not. Rehnquist, however, never specifically mentions the Fourteenth Amendment because they were not developed by Mitchell and fell outside of the question on which the Court granted certiorari.
Rehnquist also argues that “Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentences to impose on a convicted defendant… The defendant’s motive for committing the offense is one important factor. ” This is a compelling argument, but I would argue this practice is itself of questionable constitutionality, in that it allows the sentencing judge to exercise excessive discretionary judgment based on his view as to what constitutes acceptable and unacceptable motives.
However, even if this practice is held to be constitutional, surpassing the existing maximum penalty with an additional statute that specifically lists bigotry as an unacceptable motive, certainly qualifies as being the same as imposing an additional penalty for unpopular beliefs. To illustrate the dangers inherent in laws such as Wisconsin’s penalty enhancement statute, I need only examine Texas v. Johnson, a 1989 Supreme Court case. The state’s flag desecration statute was ruled unconstitutional by the Court.
However, using Rehnquists logic in Mitchell, the state of Texas could have easily achieved their goal by prohibiting public burning, a legitimate exercise of their police power, and enhancing the penalty for those convicted of violating the statute if they did so in opposition to the government (Gellman, 380). Therefore, penalty enhancement laws such as Wisconsin’s give the government too much power to excessively punish what it deems unacceptable. Clearly, when the legislature enacts penalty enhancement laws with the intent of suppressing unpopular ideas, the state violates both the First and the Fourteenth Amendments.
The state interferes with an individual’s right to free speech by suppressing ideas not supported by the government, and fails to provide equal protection to all its citizens when it punishes an act more severely when committed by an individual whose opinions are not shared by the state. Mitchell v. Wisconsin is a clear example of majority will infringing upon minority rights, and proves that the Bill of Rights works well, except in the instances when it is most needed.
There are probably more Supreme Court cases that favor Wisconsin’s position than there are that support Mitchell’s argument. However, many of these rulings are of questionable constitutionality themselves. Two cases arguably support Rehnquist’s position, but the Supreme Court has traditionally ignored the first of rulings, and the second has been misinterpreted. In Chaplinsky v. New Hampshire, Justice Murphy wrote what has become known as the “fighting words doctrine”. Chaplinsky was a Jehovahs Witness in a predominantly Catholic town.
He distributed leaflets to a hostile crowd, and was refused protection by the town’s marshal. Chaplinsky then referred to the marshal as a “god damn racketeer and a damn fascist”, for which he was convicted of breaching the peace. Justice Murphy’s opinion argued that certain speech, including that which is lewd, obscene, profane, or insulting, is not covered by the First Amendment. According to Murphy, “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the libelous, and the insulting or fighting’ words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. ” Under Chaplinky, bigoted remarks would probably qualify as fighting’ words. However, the courts have generally been reluctant to uphold the fighting’ words doctrine, and the Supreme Court has never done so (Gellman, 369,370). Even if today’s Court were to consider Chaplinsky valid, Mitchell’s comments, though racial in nature, would be difficult to classify as bigoted.
In fact, Constitutional considerations aside, the biggest problem with penalty enhancement laws such as Wisconsin’s, is classifying and prosecuting an incident as hate-motivated (Cacas, 33). At what point can we be certain the victim was selected based on race, religion, or sexual orientation? Another more pressing problem is police unwillingness to investigate a crime as hate-motivated (Cacas, 33). Certainly, the difficulty in determining whether a crime is hate-motivated is one of the reasons police are hesitant to pursue crimes as hate-motivated, and illustrates yet another reason why such statutes should not exist.
Another case that is sometimes cited as a precedent to support rulings such as Wisconsin v. Mitchell is U. S. v. O’Brien. O’Brien had burnt his draft card to protest the draft and the Vietnam War, despite a law specifically forbidding the burning of draft cards. The Supreme Court ruled that the statute did not differentiate between public and private draft card burnings, and was therefore not a government attempt to regulate symbolic speech, but a constitutionality legitimate police power.
The Court ruled that there is no absolutist protection for symbolic speech. Under O’Brien, the government may regulate conduct which incidentally infringes upon First Amendment rights, as long as the government interest is “unrelated to the suppression” of belief or expression. However, when states enact laws such as the Wisconsin statute, the state is not regulating conduct despite its expressive elements, but is penalizing conduct because of its expressive elements (Gellman, 376).
Therefore, a more accurate interpretation of OBrien would be that it actually supports an argument against the Court’s ruling in Wisconsin, and is not a precedent to support Rehnquist’s decision. Possibly more important, and certainly more recent, is the precedent established in R. A. V. v. St. Paul, a 1992 case. This case involved a juvenile who was convicted under the St. Paul Bias-Motivated Crime Ordinance for burning a cross in the yard of a black family that lived across the street from the petitioner.
Justice Scalia delivered the opinion of a unanimous Court, but the Court was divided in its opinions for overturning the St. Paul statute. Scalia argued that the city ordinance was overbroad, because it punished nearly all controversial characterizations likely to arouse “resentment” among defined protected groups, and under-inclusive, because the government must not selectively penalize fighting words directed at some groups while not prosecuting those addressed to others, which is where the problem lies in the logic of the Mitchell decision. Though Rehnquist argued that Wisconsin v.
Mitchell did not overturn R. A. V. v. St. Paul, “If a hate speech law that enumerated some categories is invalid because, in Justice Scalia’s opinion in St. Paul, government may not regulate use based on hostility- or favoritism- toward the underlying message involved, how can a hate crime law be upheld that increases the penalty for crimes motivated by some hates but not those motivated by other hates? ” In other words, if the St. Paul statute is determined to be under-inclusive, how can we include every conceivable hate within the context of any statute.
To be consistent, legislature’s must now include other categories, including sex, physical characteristics, age, party affiliation, anti-Americanism or position on abortion. “(Feingeld, 16) More interesting (and Constitutional) than the majority opinion in R. A. V. v. St. Paul, is the concurring opinion written by Justice White, with whom Justice Blackmun and Justice O’Connor join. White writes, “Although the ordinance as construed reaches egories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that- however repugnant- is shielded by the First Amendment…
Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected… The ordinance is therefore fatally overbroad and invalid on its face… ” Rehnquist argues that whereas the “ordinance struck down in R. A. V was explicitly directed at expression, the statute in this case is aimed at conduct unprotected by the First Amendment”.
Nevertheless, had Mitchell not stated, “There goes a white boy; go get him”, his sentence would not have been enhanced, he would have instead received the maximum sentence of two years in jail for his crime, instead of four. Therefore, the Wisconsin statute does not only punish conduct, as Justice Rehnquist suggests, but speech as well. The Wisconsin v. Mitchell decision cannot simply be viewed as one that does harm to racists and homophobics. There are much broader costs to society than the quieted opinions of an ignorant few.
First, laws that chill thought or limit expression “detract from the goal of insuring the availability of the broadest possible range of ideas and expressions in the marketplace of ideas. ” Second, the Mitchell ruling not only affects everyones free speech rights with a general constriction of the interpretation of the First Amendment, but the ruling makes way for further constrictions. Third, penalty enhancement laws place the legislature in the position of judging and determining the quality of ideas, and assumes that the government has the capacity to make such judgments.
Fourth, without the expression of opinions generally deemed unacceptable by Society, society tends to forget why those opinions were deemed unacceptable in the first place. (More specifically, nothing makes a skinhead seem more stupid than allowing him to voice his opinion under the scrutiny of a national television audience. ) Finally, when society allows the free expression of all ideas, regardless of its disdain for those ideas, it is a sign of strength. So when a society uses all its power to suppress ideas, it is certainly a sign of that society’s weakness (Gellman, (381-385).
The United States Supreme Court’s unanimous decision in Wisconsin v. Mitchell is incorrect for a number of reasons. Constitutionally, the decision fails to comply with the freedom of speech guaranteed in the First Amendment, and the guarantee to all citizens of equal protection under the laws, listed in the Fourteenth Amendment. The decision also arguably overturns R. A. V. v. St. Paul, and suggests that the Court may be leaning towards a new fighting words doctrine’, where unpopular speech equals unprotected speech.
The decision also damages society as a whole in ways that are simply immeasurable in their size, such as those listed in the preceding paragraph. Wisconsin v. Mitchell is a terribly flawed Supreme Court decision, which one can only hope will be overturned in the very near future. Roughly 40 states today have hate crimes laws on the books, many of which are enhancement statutes. Some are quite broad. New York, for example, covers hate crimes on the basis of race, religion, gender, sexual preference and age.
The ostensible motive of New York and other states is to send a message to the racists and bigots of the world that they wont tolerate racism and bigotry. On January 26, 1999, State Senator Rodney Ellis and Representative Senfronia Thompson filed Senate Bill 275 and House Bill 938 that offer comprehensive approach to addressing the hate crime in Texas. The legislation was named for James Byrd, Jr. , an African American who was brutally murdered during a hate crime in Jasper, in June 1998.
Why should Texas have a Hate Crimes Act? We need to create strong, clear and enforceable hate crime laws that will increase penalties for crimes motivated by prejudice or bias based on race, ethnicity, religion, disability and sexual orientation. Hate crimes deserve stiffer penalties because the crimes are designed to terrorize and intimidate whole groups of people simply because of who they are. Hate Crimes go beyond a crime against an individual, to strike terror into every individual who is a member of the targeted group. Example: If a synagogue is vandalized with swastikas and burned, every Jewish person is terrorized by this crime.
Hate crimes affect all people. This act will protect people of all races, all ethnicity, all religions, and all sexual orientations. Hate crime laws are not special rights but rather have universal application. We need to treat hate crimes differently. Texas for example increased penalties for all sorts of crimes; crimes against the police, children, the elderly, the disabled, state and federal employees, prison wardens, and a proposed tough penalty law on crimes against pregnant women. There is even a law increasing the penalty for vandalism against oil wells.
Opposition only arises when we discuss imposing stiffer penalties for hate crimes and it is time for that to stop. California already has a hate crimes law, but that didnt stop Furrow from opening fire on a group of Jewish children in a Los Angeles community center, then killing a Filipino-American letter carrier. Illinois hate crime law didnt deter Benjamin Smith from a shooting spree that left nine people wounded and two dead – all Jewish, black, or Asian. Of the three men who so savagely killed Byrd, two have been sentenced to death and one is to spend the rest of his life behind bars.
Both of Shepards killers have also been sentenced to life. One of them, Aaron McKinney, was facing a death sentence when Shepards parents proposed a deal- two life sentences in exchange for a permanent gag order that prevents McKinney or his lawyers from ever appealing the verdict or discussing the case in public. In the Budford case, meanwhile, federal prosecutors in California are seeking the death penalty. There is no way around it: a law that cracks down harder on criminals who harm members of certain groups by definition goes easier on those who target victims from other group.
If a gang of skinheads decides to crack some black or Jewish skulls, the bill would empower federal prosecutors to go after them. Equal protection of the law must apply to all Americans. The Clinton-Gore Administration and congressional Democrats publicly pushed for the House to pass the hate crimes bill that the Senate adopted. It would expand the current federal statute which provides harsher penalties for various crimes if motivated by race, religion, or national origin to cover a longer list of crimes, including those motivated by sexual orientation, gender, or disability.
The Hate Crimes Prevention Act would expand federal jurisdiction to reach serious, violent hate crimes. Under the bill, hate crimes that cause death or bodily injury or which are perpetrated with a firearm or explosive device can be investigated federally, regardless of whether the victim was exercising a federally protected right. The bill describes a “hate crime” as a violent act causing death or bodily injury “because of the actual or perceived race, color, religion, national origin, sexual orientation, gender, or disability” of the victim.
These are the same protected categories that are already in federal hate crimes law. (Existing law provides enhanced penalties for hate crimes that are committed on federal property, such as Indian reservations or national parks. ) One might even ask, if hate crimes laws are unnecessary. What harm can they do? By blending punishment for constitutionally protected (if bigoted) thoughts and speech together with punishment for violent criminal acts, hate crimes statutes smuggle into the law an unwholesome dose of thought control, which puts defendants on trial for their opinions along with their actions.
Hate crime laws divert trials from the straightforward task of determining who did it into an elusive quest to identify the defendants inner thoughts a quest complicated by the realities that motives are often mixed and bias is rarely the main one. The federal hate crimes statue undermines constitutional protections against double jeopardy by forcing defendants who have already been prosecuted in state court to face successive prosecution in federal court for the same acts. Moreover, political pressure and victim-group lobbying sometimes spur federal authorities to bring unwarranted prosecutions.
The federal statue also intrudes into local matters unrelated either to interstate commerce or to official unrelated either to interstate commerce or to official discrimination. For this reason, both the current statute and the pending bill may be unconstitutional (in whole or in part) under the logic of the Supreme Courts decision striking down a key provision of the Violence Against Women Act. Now federal hate crimes legislation may be politically unstoppable in the long run. If so, the best course would be to expand the laws coverage enough to reflect the fact that all violent crimes are in a sense hate crimes.
That would make every crime victim special. And when every victim is special, no victim group is specially privileged. “The freedom to differ is not limited to things that do not matter much. That would be a mere shadow of a freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion… Justice Jackson in W. V. Board of Education. v. Barnette.