12
Both are directed at nonverbal, proscribed conduct—for example, assault—
motivated by bias. Both proscribe such conduct in other criminal statutes.
Both increase punishment for the proscribed conduct. In the case of section
729.5(3), the enhancement is from a misdemeanor to an aggravated
misdemeanor; in the case of the Wisconsin statute, the penalties are simply
increased. In each instance, the legislatures had good reason for the
enhancement provisions. Because of these similarities, Mitchell II controls
our decision. Like the Wisconsin statute, section 729.5(3) is, we hold, aimed
at conduct unprotected by the First Amendment. We therefore conclude
section 729.5(3) does not violate McKnight’s First Amendment right of free
speech.
Id.
Appellant argues that this case, similar to Mitchell, is distinguishable from his case
because they involved a physical assault on a person, which did not occur here. Other
courts, however, have made clear that the analysis of Mitchell is not limited to bias-
motivated assaults. In Rokicki, 718 N.E.2d at 336, the defendant was convicted of a hate
crime based on the predicate offense of disorderly conduct at a restaurant, where he
directed epithets at the victim based on sexual orientation. Illinois’ hate crime statute read
as follows:
A person commits hate crime when, by reason of the actual or perceived race,
color, creed, religion, ancestry, gender, sexual orientation, physical or mental
disability, or national origin of another individual or group of individuals,
[she or] he commits assault, battery, aggravated assault, misdemeanor theft,
criminal trespass to residence, misdemeanor criminal damage to property,
criminal trespass to vehicle, criminal trespass to real property, mob action or
disorderly conduct. . . . 720 ILCS 5/12–7.1(a) (West 1994).
Id. at 336.
Rokicki argued that the statue was unconstitutional because it violated his free
speech rights. Id. After a thorough review of R.A.V. and Mitchell, the court determined
that the “statute requires conduct beyond mere expression.” Id. at 337–39. It explained: