WRIGHT, J., dissenting.

I have always believed that legal scholars and most judges consider freedom of speech provisions a bulwark to be defended. Today, sad to say, we have beaten a hasty retreat from our previous pronouncement in this very case, and Section 11, Article I of the Ohio Constitution is being treated more as an obstacle to be avoided than as an affirmative statement of a fundamental right and a ringing statement of truth.

I recognize the tension between the search for social justice and the long and honorable tradition of defending speech from government intrusion. I also appreciate the political benefits of punishing the distasteful "hate speech" found here. However, I cannot compromise the principles noted above and must respectfully dissent.

I am extremely disappointed that a majority of this court are willing to dispose of a case of significant constitutional import through a brief entry devoid of analysis. I feel certain that the United States Supreme Court, in remanding this case, expected this court to engage in a thorough analysis not only of the application of Wisconsin v. Mitchell (1993), 508 U.S. ___, 113 S.Ct. 2194, 124 L.Ed.2d 436, but also of Section 11, Article I of the Ohio Constitution. Certainly, the citizens of Ohio deserve no less.

If the Ohio statute were identical or nearly identical to the Wisconsin statute, a rubber-stamp entry would be understandable. However, the two statutes are completely different in both wording and scope of application, as are the free speech provisions of the United States Constitution and the Ohio Constitution.

Under the Wisconsin statute, the maximum sentence a judge may impose is increased when the defendant intentionally selects the victim because of his or her protected status. Moreover, the Wisconsin statute applies across the board to all criminal offenses (except those where proof of race, ancestry, etc. is already an element of the crime itself). Former Wis.Stat. Section 939.645(4). In contrast, the Ohio statute creates a new offense, ethnic intimidation (R.C. 2927.12), one element of which is the commission of any of five offenses: aggravated menacing (R.C. 2903.21); menacing (R.C. 2903.22); criminal damaging or endangering (R.C. 2909.06); criminal mischief (R.C. 2909.07); and certain types of telephone harassment (R.C. 2917.21[A][3], [4], or [5]). A defendant can be found guilty under R.C. 2927.12(A) if he or she violates one of the predicate offenses "by reason of the race, color, religion, or national origin of another person or group of persons." Conviction under R.C. 2927.12 is an offense one degree higher than the predicate offense. R.C. 2927.12(B).

Because of these differences between the Wisconsin statute and the Ohio statute, it is not at all apparent that the Supreme Court's ruling in Wisconsin v. Mitchell mandates holding that the Ohio statute is constitutional. In fact, I am persuaded that these critical differences support an opposite conclusion. I find the Wisconsin statute distinguishable from the Ohio statute in ways which render the Ohio statute unconstitutional under both the United States and Ohio Constitutions.

I

Of particular concern is the difference in the scope of application of the statutes. Under the Wisconsin statute, the penalty enhancement for intentional selection of the victim applies to almost all offenses. On the other hand, the predicate offenses upon which the Ohio statute is based are limited to those criminal offenses most closely associated with expressive conduct or unprotected speech. I recognize and agree that the state may punish some speech, such as fighting words. However, the government may not make distinctions based on the viewpoint or content of the speech. This focus on expressive conduct makes the Ohio statute analogous to the statute held unconstitutional by the United States Supreme Court in R.A.V. v. St. Paul (1992), 505 U.S. ___, 112 S.Ct. 2538, 120 L.Ed.2d 305. As the court in Mitchell characterized it, R.A.V. involved a challenge to a municipal ordinance which prohibited the use of "fighting words" that insult or provoke violence "on the basis of race, color, creed, religion or gender * * *." In Mitchell the United States Supreme Court distinguished the Wisconsin statute from the ordinance in R.A.V. "Because the ordinance only proscribed a class of `fighting words' deemed particularly offensive by the city — i.e., those that `contain * * * messages of "biased-motivated" hatred,' 505 U.S. at ___ — ___, 112 S.Ct. [at 2547-2548], 120 L.Ed.2d [at 323] — we held that it violated the rule against content-based discrimination. See, id., at ___ — ___, 112 S.Ct. [at 2547-2548], 120 L.Ed.2d [at 323-324]. But whereas the ordinance struck down in R.A.V. was explicitly directed at expression ( i.e., `speech' or `messages') id. at ___, 112 S.Ct. [at 2547], 120 L.Ed.2d [at 322], the statute in this case is aimed at conduct unprotected by the First Amendment." Mitchell, 508 U.S. at ___ — ___, 113 S.Ct. at 2200-2201, 124 L.Ed.2d at 446-447.

In the present case, the conduct of the defendants which is unprotected by the First Amendment, i.e., the making of menacing threats, is already prosecutable under R.C. 2903.21 and 2903.22. A prosecution under R.C. 2927.12 is aimed at punishing the content of the "fighting words" used. Consistent with the Supreme Court's ruling in R.A.V., the state may not proscribe a class of "fighting words" which it deems to be particularly offensive. Thus, there is nothing in the Mitchell decision to change our previous conclusion that R.C. 2927.12 "constitutes a greater infringement on speech and thought" than the Wisconsin statute because the Ohio statute "singles out racial and religious hatred as a viewpoint to be punished." State v. Wyant (1992), 64 Ohio St.3d 566, 579, 597 N.E.2d 450, 459 (" Wyant I").

A clear example of the difference between the Wisconsin and Ohio statutes can be seen by applying the statutes to Wyant's conduct. Wyant's conduct would not violate the Wisconsin standard. There is no evidence he selected his victims because they are black. Rather, there is evidence he selected his victims because they had a camp site Wyant wanted his relatives to have and because they had complained to a park official about Wyant's playing loud music. Certainly Wyant chose to use certain words because of the race of his victims. But this fact highlights the problem with the Ohio statute. Wyant was convicted of a felony instead of a misdemeanor solely because he made racial references in his menacing threats. Wyant was more severely punished because of his purported racist feelings, not because of his conduct. In effect, Wyant received six months for aggravated menacing and an additional one year for his expressed racist thoughts. As deplorable as Wyant's beliefs may be, his expression of those beliefs is not separately punishable.

This example reflects another difference between the two statutes. Under the Wisconsin statute the defendant's motive in selecting the victim is a factor the judge may consider during sentencing. In Mitchell, the United States Supreme Court emphasized that a defendant's motive has traditionally been a factor considered during the penalty phase of the prosecution. Id., 508 U.S. at ___, 113 S.Ct. at 2199, 124 L.Ed.2d at 445. As discussed at length by Justice Herbert R. Brown in Wyant I, motive is not traditionally a factor in the guilt phase of a prosecution. Id., 64 Ohio St.3d at 571-574, 597 N.E.2d at 453-456. Instead, it is the defendant's intent to commit the act which is traditionally an element of the offense. However, R.C. 2927.12 makes the defendant's motive — his or her thoughts and beliefs — an element of the offense. The Wisconsin statute, on the other hand, focuses on the defendant's intent and conduct. Since the Ohio statute directly penalizes biased motive, rather than the conduct of intentionally selecting a victim because of a biased belief, the Ohio statute violates both Section 11, Article I of the Ohio Constitution and the First Amendment to the United States Constitution

II

Whether or not the Mitchell decision dictates that R.C. 2927.12 be held constitutional under the First Amendment, I believe that it is unconstitutional under Section 11, Article I of the Ohio Constitution. As we said in Wyant I, "the Constitution of Ohio is even more specific [than the First Amendment]; it guarantees to every citizen freedom to `speak, write and publish his sentiments on all subjects.'" (Emphasis added.) Id., 64 Ohio St. 3 d at 577, 597 N.E.2d at 457. Unlike the First Amendment, Section 11, Article I contains not only a negative clause ("no law shall be passed") but also an affirmative clause guaranteeing freedom of speech to all Ohio citizens. It is a basic rule of constitutional construction that "the whole section should be construed together, and effect given to every part and sentence. * * *" Froelich v. Cleveland (1919), 99 Ohio St. 376, 124 N.E. 212, paragraph one of the syllabus. Therefore, we must give effect to the affirmative language in Section 11, Article I which is not included in the First Amendment. This language constitutes a "promise to affirmatively protect the right" of free speech. Ferner v. Toledo-Lucas Cty. Convention Visitors Bur., Inc. (1992), 80 Ohio App.3d 842, 848, 610 N.E.2d 1158, 1162.

The historical context within which the Ohio Constitution was written also supports a reading which is more expansive than the First Amendment. Early state constitutions were often based on constitutions from other states, not on the federal Bill of Rights. For example, the free speech provision of the 1802 Ohio Constitution appears to have been based on the 1790 Pennsylvania Constitution. Reliance on another state's constitutional language reflects the different purposes to be served by the federal Bill of Rights and the state constitutions. To obtain ratification of the United States Constitution, the federal Bill of Rights was added as a curb on the broad powers granted to the national government. The states were seen as protectors of their citizens' individual civil rights — rights contained in the state constitutions. The affirmative clause of Section 11, Article I reflects this role of the state in affirmatively protecting its citizens' right to free speech. Because the Ohio Constitution provides a more expansive protection for freedom of speech than does the United States Constitution, nothing in the Mitchell decision alters our conclusion in Wyant I that R.C. 2927.12 violates the Ohio Constitution.

The majority's disposition of this appeal is also inadequate because reliance on Mitchell addresses only the free speech challenge to the statute. The defendants in this case also raised challenges on the grounds of vagueness, equal protection, due process and overbreadth. In our unanimous opinion in Wyant I we said that "[t]hese arguments may have merit, especially in view of the concurring opinion by Justice White in R.A.V. v. St. Paul, supra, 505 U.S. at ___, 112 S.Ct. at 2550, 120 L.Ed.2d at 327." (Emphasis added.) Wyant I, 64 Ohio St.3d at 579-580, 597 N.E.2d at 459. We merely declined to resolve them because our holding in Wyant I made it unnecessary.

It can, perhaps, be argued that reliance on Mitchell disposes of the overbreadth challenge. In no way, however, can it be argued that Mitchell disposes of the vagueness and equal protection arguments, because the United States Supreme Court specifically declined to address those arguments. Mitchell, supra, 508 U.S. at ___, 113 S.Ct. at 2197, 124 L.Ed.2d at 443, at fn. 2. The majority's reversal of our holding in Wyant I concerning the free speech challenge to R.C. 2927.12 now makes it essential that we address these other constitutional challenges to the statute. This is especially true since the lower court opinions declaring R.C. 2927.12 unconstitutional relied primarily on the vagueness challenge. For example, Judge Kessler, the trial judge in the May case, found that the phrase "`by reason of' as used in Ohio Revised Code § 2927.12 describes no statutorily cognizable mental state, as required by Ohio Revised Code § 2901.21 for an element of the offense, and is, therefore, impermissibly constitutionally vague under Section 16, Article I of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution." He also found the statute vague "because the language of the statute does not sufficiently specify the relationship of the race, et cetera of the other `person or group of persons' to the actor or victim." State v. May (May 15, 1990), Montgomery C.P. No. 89-CR-4687/2, unreported.

If the majority is construing the "by reason of" language of R.C. 2927.12 to mean that the defendant intentionally selected his or her victim because of race, color, religion or national origin, it has an obligation to say so. The majority also has an obligation to inform trial judges that they should formulate jury instructions to explain this meaning to juries in R.C. 2927.12 prosecutions.

At the very least, Wyant is entitled to have his conviction vacated and remanded for a new trial, which would include such jury instructions. The jury received no instructions regarding the meaning of this language in R.C. 2927.12. Otherwise, there is no way to assure that he was convicted based on his conduct, not based on his beliefs.

III

For the above reasons, I would reaffirm our decision in Wyant I, and hold that R.C. 2927.12 violates the First Amendment to the United States Constitution and also violates, independently, Section 11, Article I of the Ohio Constitution.

PFEIFER, J., concurs.

A.W. SWEENEY, J., concurs in Part II of the foregoing dissenting opinion, but does not participate in State v. Van Gundy, case Nos. 91-1211 and 91-1589.