112 S. Ct. 2538; 120 L. Ed. 2d 305; 1992 U.S. LEXIS 3863; 60 U.S.L.W. 4667; 92 Cal. Daily Op. Service 5299; 92 Daily Journal DAR 8395; 6 Fla. L. Weekly Fed. S 479
Statute upheld as constitutional and charges reinstated, 464 N.W.2d 507 (Minn. 1991)
Holding
The St. Paul Bias-Motivated Crime Ordinance was struck down because the regulation was "content-based," proscribing only activities which conveyed messages concerning particular topics. Judgment of the Supreme Court of Minnesota reversed.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), is a case of the United States Supreme Court that unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African-American family since the ordinance was held to violate the First Amendment's protection of freedom of speech.[1] The Court reasoned that an ordinance like this constitutes "viewpoint discrimination" which may have the effect of driving certain ideas from the marketplace of ideas.[2]
In the early morning hours of June 21, 1990, the petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs.[1] The cross was erected and burned in the front yard of an African American family that lived across the street from the house where the petitioner was staying.[1] Petitioner, who was a juvenile at the time, was charged with two counts, one of which a violation of the St. Paul Bias-Motivated Crime Ordinance.[1] The Ordinance provided the following:
Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
Petitioner moved to dismiss the count under the Bias-Motivated Crime Ordinance on the ground that it was substantially overbroad and impermissibly content based, and therefore facially invalid under the First Amendment.[3] The trial court granted the motion, but the Minnesota Supreme Court reversed, rejecting petitioner's overbreadth claim because, as the Minnesota Court had construed the Ordinance in prior cases, the phrase "arouses anger, alarm or resentment in others" limited the reach of the ordinance to conduct that amounted to fighting words under the Chaplinsky v. New Hampshire decision.[4] The Minnesota Court also concluded that the ordinance was not impermissibly content based, because "the ordinance is a narrowly tailored means towards accomplishing the compelling governmental interest in protecting the community against bias-motivated threats to public safety and order."[5] Petitioner appealed, and the United States Supreme Court granted certiorari.[6]
Justice Scalia, who wrote the majority opinion in R.A.V.
The majority decision
The Court began with a recitation of the relevant factual and procedural background, noting several times that the conduct at issue could have been prosecuted under different Minnesota statutes.[7] In construing the ordinance, the Court recognized that it was bound by the construction given by the Minnesota Supreme Court.[8] Therefore, the Court accepted the Minnesota court's conclusion that the ordinance reached only those expressions that constitute "fighting words" within the meaning of Chaplinsky.
Petitioner argued that the Chaplinsky formulation should be narrowed, such that the ordinance would be invalidated as "substantially overbroad,"[8] but the Court declined to consider this argument, concluding that even if all of the expression reached by the ordinance was proscribable as "fighting words," the ordinance was facially unconstitutional in that it prohibited otherwise permitted speech solely on the basis of the subjects the speech addressed.[8]
The Court began its substantive analysis with a review of the principles of free speech clause jurisprudence, beginning with the general rule that the First Amendment prevents the government from proscribing speech,[9] or even expressive conduct,[10] because of disapproval of the ideas expressed.[11] The Court noted that while content-based regulations are presumptively invalid, society has permitted restrictions upon the content of speech in a few limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[12]
The Court then clarified language from previous free speech clause cases, including Roth v. United States, Beauharnais v. Illinois, and Chaplinsky that suggested that certain categories of expression are "not within the area of constitutionally protected speech," and "must be taken in context."[13] The Court's clarification stated that this meant that certain areas of speech "can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination."[14] Thus, as one of the first of a number of illustrations that Justice Scalia would use throughout the opinion, the government may "proscribe libel, but it may not make the further content discrimination of proscribing only libel critical of the government."[15]
The Court recognized that while a particular utterance of speech can be proscribed on the basis of one feature, the Constitution may prohibit proscribing it on the basis of another feature.[16] Thus, while burning a flag in violation of an ordinance against outdoor fires could be punishable, burning a flag in violation of an ordinance against dishonoring the flag is not.[16] In addition, other reasonable "time, place, or manner" restrictions were upheld, but only if they were "justified without reference to the content of the regulated speech."[17][18]
The Court recognized two final principles of free speech jurisprudence. One of these described that when "the entire basis for the content discrimination consists entirely of the very reason the entire class of speech is proscribable, no significant danger of idea or viewpoint discrimination exists." As examples, Justice Scalia wrote,
A State may choose to prohibit only that obscenity which is the most patently offensive in its prurience — i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. And the Federal Government can criminalize only those threats of violence that are directed against the President, since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President.[19]
The other principle of free speech jurisprudence was recognized when the Court wrote that a valid basis for according different treatment to a content-defined subclass of proscribable speech is that the subclass "happens to be associated with particular 'secondary effects' of the speech, so that 'the regulation is justified without reference to the content of the ... speech'"[20] As an example, the Court wrote that a State could permit all obscene live performances except those involving minors.[21]
Applying these principles to the St. Paul Bias-Motivated Crime Ordinance, the Court concluded that the ordinance was facially unconstitutional. Justice Scalia explained the rationale, writing,
Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.[22]
The Court went on to explain that, in addition to being an impermissible restriction based on content, the Ordinance was also viewpoint- based discrimination, writing,[22]
As explained earlier, see supra, at 386, the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression—it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul's comments and concessions in this case elevate the possibility to a certainty.
Displays containing some words, such as racial slurs, would be prohibited to proponents of all views, whereas fighting words that "do not themselves invoke race, color, creed, religion, or gender—aspersions upon a person's mother, for example—would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents."[22] The Court concluded that "St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquess of Queensberry rules."[22]
The Court concluded, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."[23]
Limitation
In Virginia v. Black (2003), the United States Supreme Court deemed constitutional part of a Virginia statute outlawing the public burning of a cross if done with an intent to intimidate, noting that such expression "has a long and pernicious history as a signal of impending violence."[24]
Fighting words are spoken words directed to the person of the hearer which would have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed. The term fighting words describes words that when uttered inflict injury or tend to incite an immediate breach of the peace.
Romer v. Evans, 517 U.S. 620 (1996), is a landmark United States Supreme Court case dealing with sexual orientation and state laws. It was the first Supreme Court case to address gay rights since Bowers v. Hardwick (1986), when the Court had held that laws criminalizing sodomy were constitutional.
Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927) was explicitly overruled, and Schenck v. United States (1919), Abrams v. United States (1919), Gitlow v. New York (1925), and Dennis v. United States (1951) were overturned.
Cohen v. California, 403 U.S. 15 (1971), was a landmark decision of the US Supreme Court holding that the First Amendment prevented the conviction of Paul Robert Cohen for the crime of disturbing the peace by wearing a jacket displaying "Fuck the Draft" in the public corridors of a California courthouse.
Symbolic speech is a legal term in United States law used to describe actions that purposefully and discernibly convey a particular message or statement to those viewing it. Symbolic speech is recognized as being protected under the First Amendment as a form of speech, but this is not expressly written as such in the document. One possible explanation as to why the Framers did not address this issue in the Bill of Rights is because the primary forms for both political debate and protest in their time were verbal expression and published word, and they may have been unaware of the possibility of future people using non-verbal expression. Symbolic speech is distinguished from pure speech, which is the communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), was a landmark decision of the US Supreme Court in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.
Forsyth County, Georgia v. The Nationalist Movement, 505 U.S. 123 (1992), was a case in which the United States Supreme Court limited the ability of local governments to charge fees for the use of public places for private activities. By a 5–4 vote, the court ruled that an ordinance allowing the local government to set varying fees for different events violated the First Amendment due to the lack of "narrowly drawn, reasonable, and definite standards" governing the amount of the fee.
United States v. Playboy Entertainment Group, 529 U.S. 803 (2000), is a United States Supreme Court case in which the Court struck down Section 505 of the Telecommunications Act of 1996, which required that cable television operators completely scramble or block channels that are "primarily dedicated to sexually-oriented programming" or limit their transmission to the hours of 10 pm to 6 am.
Virginia v. Black, 538 U.S. 343 (2003), was a landmark decision of the Supreme Court of the United States in which the Court held, 5–4, that any state statute banning cross burning on the basis that it constitutes prima facie evidence of intent to intimidate is a violation of the First Amendment to the Constitution. Such a provision, the Court argued, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology". In the case, three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. However, cross-burning can be a criminal offense if the intent to intimidate is proven. It was argued by former Solicitor General of Virginia, William Hurd and Rodney A. Smolla.
Beauharnais v. Illinois, 343 U.S. 250 (1952), was a case that came before the United States Supreme Court in 1952. It upheld an Illinois law making it illegal to publish or exhibit any writing or picture portraying the "depravity, criminality, unchastity, or lack of virtue of a class of citizens of any race, color, creed or religion". It is most known for giving a legal basis to some degree that forms of hate speech that may be deemed to breach US libel law are not protected by the First Amendment.
Good News Club v. Milford Central School, 533 U.S. 98 (2001), was a decision of the U.S. Supreme Court that held that, when a government operates a "limited public forum", it may not discriminate against speech that takes place within that forum on the basis of the viewpoint which it expresses—in this case, against religious speech engaged in by an evangelical Christian club for children.
Terminiello v. City of Chicago, 337 U.S. 1 (1949), was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago that banned speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First and Fourteenth Amendments to the United States Constitution.
Kunz v. New York, 340 U.S. 290 (1951), was a United States Supreme Court case finding a requirement mandating a permit to speak on religious issues in public was unconstitutional. It was argued October 17, 1950, and decided January 15, 1951, 8–1. Chief Justice Vinson delivered the opinion for the Court. Justice Black and Justice Frankfurter concurred in the result only. Justice Jackson dissented.
Erie v. Pap's A. M., 529 U.S. 277 (2000), was a landmark decision by the Supreme Court of the United States regarding nude dancing as free speech. The court held that an ordinance banning public nudity did not violate the operator of a totally nude entertainment establishment's constitutional right to free speech.
Snyder v. Phelps, 562 U.S. 443 (2011), is a landmark decision by the Supreme Court of the United States in which the Court held that speech made in a public place on a matter of public concern cannot be the basis of liability for a tort of emotional distress, even if the speech is viewed as offensive or outrageous.
Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), was a United States Supreme Court decision that held that the First Amendment forbids a government entity from basing its decision to promote, transfer, recall, or hire low-level public employees based upon their party affiliation.
Reed v. Town of Gilbert, 576 U.S. 155 (2015), is a case in which the United States Supreme Court clarified when municipalities may impose content-based restrictions on signage. The case also clarified the level of constitutional scrutiny that should be applied to content-based restrictions on speech. In 2005, Gilbert, Arizona adopted a municipal sign ordinance that regulated the manner in which signs could be displayed in public areas. The ordinance imposed stricter limitations on signs advertising religious services than signs that displayed "political" or "ideological" messages. When the town's Sign Code compliance manager cited a local church for violating the ordinance, the church filed a lawsuit in which they argued the town's sign regulations violated its First Amendment right to the freedom of speech.
Times Film Corporation v. City of Chicago, or Times v. City of Chicago is the name of two cases decided by the U.S. Supreme Court in 1957 and 1961. Both involved the issue of limits on freedom of expression in connection with motion pictures. In both cases the court affirmed the right of local governments to engage in some form of censorship.
Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.
Chicago Police Dept. v. Mosley, 408 U.S. 92 (1972), was a United States Supreme Court case which concerned freedom of speech under the First Amendment. Oral argument for this case was consolidated with Grayned v. City of Rockford, but separate opinions were issued for each. Earl Mosley had protested employment discrimination by carrying a sign on the sidewalk in front of a Chicago high school, until the city of Chicago made it illegal to do so. Although Chicago believed that its ordinance was a time, place, or manner restriction, and therefore was a constitutional law, the Supreme Court ruled that it was a content-based restriction, because it treated labor-related protests differently from other protests. Since the ordinance did not meet the higher standards for content-based restrictions, it was ruled unconstitutional.
Kagan, Elena (1992). "The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion". The Supreme Court Review. 1992 (1992): 29–77. doi:10.1086/scr.1992.3109667. JSTOR3109667. S2CID140422540.
Levin, Brian (2002). "From Slavery to Hate Crime Laws: The Emergence of Race and Status-Based Protection in American Criminal Law". Journal of Social Issues. 58 (2): 227–45. doi:10.1111/1540-4560.00258.
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