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Report No. 267

(ii) Distinguishing Conduct and Expression:

4.32 There is a distinction between unlawful conduct and mere free expression. In Wisconsin v. Mitchell,80 a statute penalising hate crime was upheld by the court.81 The court distinguished this case from R.A.V.82 by differentiating between expression and conduct. It was held: Nothing in our decision last term in R. A. V. compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of "`fighting words' that insult, or provoke violence, `on the basis of race, color, creed, religion or gender.'

"Because the ordinance only proscribed a class of "fighting words" deemed particularly offensive by the city i.e.., those "that contain messages of `bias-motivated' hatred,"we held that it violated the rule against content-based discrimination. But whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., "speech" or "messages"), the statute in this case is aimed at conduct unprotected by the First Amendment.

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