- Hate Speech
R.A.V. v. St. Paul: Background
- How is the issue involved in R.A.V. different from the issue raised in Beauharnais?
- When will a statute banning fighting words violate the 1st Amendment according to R.A.V.?
- What are the three exceptions to the R.A.V. exception to the rule that fighting words are unprotected?
- R.A.V. assumed the expression by R.A.V. had been punished under a statute limited to fighting words. Are there reasons to believe the statute is not so limited? What are they?
“Hate speech” raises difficult and contentious issues. The term is not entirely clear. It has been used to include attacks on individuals or groups because of their race, religion, ethnic origin, gender, or sexual orientation. Even most of those who believe in a right to engage in many forms of “hate speech” would not believe it is “right” to do so.
If “hate speech” is banned, the next problem is defining it. The problem involves arriving at an acceptable legal definition, one that targets the evil without unduly suppressing speech that should be protected (overbreadth) and that defines the crime with sufficient specificity so that it is not vague. Should general negative descriptions of groups be protected speech, but face to face verbal attacks be subject to punishment? Should negative descriptions of groups also be included? How should lines be drawn?
Proponents of “hate speech” laws argue that dignity, equality, and equal respect are basic goals of our society, aspirations included in some of our basic Founding documents and protected, to some extent at least, by constitutional guarantees. They say free speech should be tempered by the broad policy underlying the Constitution’s equality guarantees.
Furthermore, they argue that attacks on groups or individuals are a form of assault, psychological to be sure, but nevertheless injurious. They point out that Chaplinsky v. New Hampshire (1942) defined unprotected words as those that by their utterance inflict injury as well as invite violent reaction. They also note that democracy requires a certain level of civility and respect.
Finally they argue that “hate speech” is a form of defamation and should therefore be unprotected. For articles calling for a revised constitutional doctrine to allow broader suppression of “hate speech,” see, e.g. Mari Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320 (1989) and Charles R. Lawrence, III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431.
Arguments against “hate speech” suggest that face to face verbal attacks focused on a particular individual can already be handled under the fighting words exception. Critics claim that proposed broader exceptions threaten freedom of expression. Free speech has been a crucial weapon for groups subject to discrimination and subordination. So doctrines that shrink the scope of freedom of expression are particularly dangerous for suppressed groups. Theories advanced to silence anti-slavery speech — that it was group libel of slaveholders, that it had a bad tendency, that it violated other constitutional commitments — have at least a general resemblance to their more modern counterparts. Similarly, in the civil rights struggle of the 1960s, advocates of integration harshly criticized the Southern establishment which, in turn, sought to suppress critical speech.
Advocates of broad suppression of “hate speech” respond that different rules are appropriate for the oppressor and the oppressed or for dominant and non-dominant groups. MacKinnon, Only Words at 80–86; Matsuda, 87 Mich. L. Rev. at 2358. Critics of “hate speech” laws worry about providing a different measure of free speech for different groups and fear that dominant groups will adapt these concepts to silence their critics.
Critics of broad “hate speech” laws also worry that the laws actually advance prejudice by encouraging bigots to make their messages more subtle and therefore more effective. Mark A. Graber, Old Wine in New Bottles: The Constitutional Status of Unconstitutional Speech, 48 Vand. L. Rev. 349 (1995); John Blim, Undoing Our Selves: The Error of Sacrificing Speech in the Quest for Equality, 56 Ohio St. L.J. 427 (1995). They point out that advances in protection of civil rights occurred when no “hate speech” bans existed. They believe free speech is the best antidote to bigotry and hatred.
Finally, there is a Jungian psychological argument advanced by Professor Calvin Massey. Massey argues that each person has a “shadow,” or an “unconscious collection” of primitive impulses and emotions. We project our shadows on others, so the loathing we have for others is often that which we have for our own shadow side. Massey argues that people who face the evil within themselves have begun the process of transcending it. Banning “hate speech” lets society tell itself that it has no problems, that the only problem is with those espousers of “hate speech” who need to be muzzled. Calvin Massey, Pure Symbols and the 1st Amendment, 17 Hast. Const. L.Q. 369 (1990).
Some skeptics of broad “hate speech” legislation suggest that we look for alternatives to suppression — such as teaching how to communicate non-violently, to avoid name calling, to improve communication skills, to resolve conflict, and to make peace. For sources on these methods, see, e.g., Gray Cox, The Ways of Peace: A Philosophy of Peace in Action (1968); Neil H. Katz and John W. Lawyer, Communication and Conflict Resolution Skills (1985); Marshall B. Rosenberg, A Model for Nonviolent Communication (1983); the Dalai Lama, Healing Anger: the Power of Patience From a Buddhist Perspective (1997); Nat Hentoff, The Boy With a Confederate Flag on His Back, Village Voice, July 5, 1988, at 31.
A number of democratic nations, including Germany and Canada, have upheld bans on “hate speech” in at least some of its incarnations. The German Constitution, “Grundgesetz” or Basic law, was originally promulgated in 1949, after the formation of the Federal Republic of Germany (FRG). It states in Article 2(1) that “[e]veryone has the right to the free development of his personality insofar as he does not violate . . . the constitutional order or morality.” Article 5(1) guarantees, “[t]he right freely to express . . . opinion by speech, writing and pictures and to freely inform himself. . . . Freedom of the press . . . [is] guaranteed. There shall be no censorship.” However, subsection 2 of the same article has been used by the FRG to severely limit any speech or expression furthering the causes of political parties or hate groups deemed to be outside Germany’s recognized constitutional order. Subsection 2 provides: “These rights are limited by the provisions of the general laws, the provisions of law for the protection of youth. . . .” The German Criminal Code (Strafgesetzbuch, StGB) of 1998 includes criminal penalties of fines and imprisonment up to three years for those who publicly disseminate “propaganda” or its “symbols” furthering the aims of former National Socialist organizations or other parties directed against “the free democratic constitutional order” or “the idea of international understanding.” (StGB § 86-86a) These Codes have been upheld by the German Constitutional Court as necessary in the light of German historical experience and as constitutional through Article 5(2).
The German Constitutional Court upheld a city government order prohibiting a conference to be addressed by the Holocaust revisionist historian, David Irving. The Court held there was a high probability based on the invitation to the conference and Irving’s own statements that his talk would deny the Holocaust, in violation of German criminal law. The Court said the denial insulted those who had been persecuted and denied the reality of their suffering, which would inflict psychological harm and invade the Jewish people’s right to their identity. BverfGE 90, 241.
The Canadian approach is somewhat similar. In Regina v. Keegstra (Canada 1990), the Canadian Supreme Court upheld “hate speech” legislation against claims that it violated the free expression guarantees of the Charter of Rights and Freedoms of the Canadian Constitution. James Keegstra, a ninth grade teacher in Alberta, had described Jews as “treacherous,” “money loving” “child killers” who had “created the Holocaust to gain sympathy.” He marked his students down if they did not restate his views on their exams. Keegstra was convicted under § 319(2) of the Canadian Criminal Code, which prohibits communicating statements that willfully promote hatred against any identifiable group distinguished by color, race, religion, or ethnic origin. Although the Canadian Charter protects “freedom of thought, belief, and expression,” § 1 also states that rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Chief Justice Dickson reasoned that this qualification applied to “hate speech”: “Expression intended to promote the hatred of identifiable groups is of limited importance when measured against free expression values” because it contributes little to truth and tends to frustrate the autonomy and political expression of members of the targeted groups. Dickson noted he would be reluctant to overrule Beauharnais v. Illinois (1952) if he were in America. He noted that hate speech has two adverse consequences that justify its prohibition: 1) it humiliates and degrades the individuals that it targets; and 2) it affects society at large by recruiting people to groups that have an anti-social agenda and by implicitly giving credibility to the claims made by such groups.
R.A.V. v. St. Paul
505 U.S. 377 (1992)
[Majority: Scalia, Rehnquist (C.J.), Kennedy, Souter, and Thomas. Concurring: White, Blackmun, O’Connor, and Stevens.]
Justice Scalia delivered the opinion of the Court.
In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. [O]ne of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02, which provides:
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 this count on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content based and therefore facially invalid under the 1st Amendment. The trial court granted this motion, but the Minnesota Supreme Court reversed. That court rejected petitioner’s overbreadth claim because, as construed in prior Minnesota cases the modifying phrase “arouses anger, alarm or resentment in others” limited the reach of the ordinance to conduct that amounts to “fighting words,” i.e., “conduct that itself inflicts injury or tends to incite immediate violence . . . ,”. . . .
[Petitioner has also been charged, in Count I of the delinquency petition, with a violation of Minn. Stat. § 609.2231(4) (racially motivated assaults). Petitioner did not challenge this count.]
- . . . Accordingly, we accept the Minnesota Supreme Court’s authoritative statement that the ordinance reaches only those expressions that constitute “fighting words” within the meaning of Chaplinsky v. New Hampshire (1942). Petitioner and his amici urge us to modify the scope of the Chaplinsky formulation, thereby invalidating the ordinance as “substantially overbroad”. We find it unnecessary to consider this issue. Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the “fighting words” doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.
The 1st Amendment generally prevents government from proscribing speech . . . because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. From 1791 to the present, however, our society, like other free but civilized societies, 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.” Chaplinsky. We have recognized that “the freedom of speech” referred to by the 1st Amendment does not include a freedom to disregard these traditional limitations. See, e.g., Roth v. United States (1957) (obscenity); Beauharnais v. Illinois (1952) (defamation); Chaplinsky v. New Hampshire (“fighting words”). Our decisions since the 1960’s have narrowed the scope of the traditional categorical exceptions for defamation . . . but a limited categorical approach has remained an important part of our 1st Amendment jurisprudence.
We have sometimes said that these categories of expression are “not within the area of constitutionally protected speech,” or that the “protection of the 1st Amendment does not extend” to them. Such statements must be taken in context, however. . . . What they mean is that these areas of speech can, consistently with the 1st 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 unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. . . .
Our cases surely do not establish the proposition that the 1st Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression. . . . That would mean that a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to 1st Amendment protection is at odds with common sense and with our jurisprudence as well. It is not true that “fighting words” have at most a “de minimis” expressive content, or that their content is in all respects “worthless and undeserving of constitutional protection;” sometimes they are quite expressive indeed. We have not said that they constitute “no part of the expression of ideas,” but only that they constitute “no essential part of any exposition of ideas.” Chaplinsky.
The proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace and has found application in many contexts. We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses — so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not. See Texas v. Johnson (1989). Similarly, we have upheld reasonable “time, place, or manner” restrictions, but only if they are “justified without reference to the content of the regulated speech.” And just as the power to proscribe particular speech on the basis of a noncontent element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the basis of other content elements.
In other words, the exclusion of “fighting words” from the scope of the 1st Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a “nonspeech” element of communication. Fighting words are thus analogous to a noisy sound truck: each is a “mode of speech,” . . . but neither has, in and of itself, a claim upon the 1st Amendment. As with the sound truck, however, so also with fighting words: the government may not regulate use based on hostility — or favoritism — towards the underlying message expressed.
The concurrences describe us as setting forth a new 1st Amendment principle that prohibition of constitutionally proscribable speech cannot be “underinclusiv[e],” — a 1st Amendment “absolutism” whereby “[w]ithin a particular ‘proscribable’ category of expression, . . . a government must either proscribe all speech or no speech at all.” That easy target is of the concurrences’ own invention. In our view, the 1st Amendment imposes not an “underinclusiveness” limitation but a “content discrimination” limitation upon a State’s prohibition of proscribable speech. There is no problem whatever, for example, with a State’s prohibiting obscenity (and other forms of proscribable expression) only in certain media or markets, for although that prohibition would be “underinclusive,” it would not discriminate on the basis of content.
Even the prohibition against content discrimination that we assert the 1st Amendment requires is not absolute. It applies differently in the context of proscribable speech than in the area of fully protected speech. The rationale of the general prohibition, after all, is that content discrimination “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” But content discrimination among various instances of a class of proscribable speech often does not pose this threat.
When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from 1st Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: a state might 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, see 18 U.S.C. § 871 — since the reasons why threats of violence are outside the 1st 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. See Watts v. United States (1969) (upholding the facial validity of § 871 because of the “overwhelmin[g] interest in protecting the safety of [the] Chief Executive and in allowing him to perform his duties without interference from threats of physical violence”). But the federal government may not criminalize only those threats against the President that mention his policy on aid to inner cities. And to take a final example (one mentioned by Justice Stevens), a State may choose to regulate price advertising in one industry but not in others, because of the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full 1st Amendment protection. . . .) But a state may not prohibit only that commercial advertising that depicts men in a demeaning fashion.
Another valid basis for according differential treatment to even 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,” Renton v. Playtime Theatres, Inc. (1986). A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.
These bases for distinction refute the proposition that the selectivity of the restriction is “even arguably ‘conditioned upon the sovereign’s agreement with what a speaker may intend to say.'” There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue) it may not even be necessary to identify any particular “neutral” basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (We cannot think of any 1st Amendment interest that would stand in the way of a State’s prohibiting only those obscene motion pictures with blue-eyed actresses.) Save for that limitation, the regulation of “fighting words,” like the regulation of noisy speech, may address some offensive instances and leave other, equally offensive, instances alone.
- Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. 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 1st Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.
In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words — odious racial epithets, for example — would be prohibited to proponents of all views. But “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. One could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.
What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota Supreme Court repeatedly emphasized) messages of “bias-motivated” hatred and in particular, as applied to this case, messages “based on virulent notions of racial supremacy.” One must wholeheartedly agree with the Minnesota Supreme Court that “[i]t is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear,” but the manner of that confrontation cannot consist of selective limitations upon speech. St. Paul’s brief asserts that a general “fighting words” law would not meet the city’s needs because only a content-specific measure can communicate to minority groups that the “group hatred” aspect of such speech “is not condoned by the majority.” The point of the 1st Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content. . . .
What makes the anger, fear, sense of dishonor, etc., produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc., produced by other fighting words is nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message. . . . [T]he symbols which will arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” are those symbols that communicate a message of hostility based on one of these characteristics. St. Paul concedes . . . that the ordinance applies only to “racial, religious, or gender-specific symbols” such as “a burning cross, Nazi swastika or other instrumentality of like import.” . . .
The content-based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the 1st Amendment prohibition we discussed earlier nor a more general exception for content discrimination that does not threaten censorship of ideas. It assuredly does not fall within the exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable. As explained earlier, the reason why fighting words are categorically excluded from the protection of the 1st 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.
St. Paul argues that the ordinance comes within another of the specific exceptions we mentioned, the one that allows content discrimination aimed only at the “secondary effects” of the speech, see Renton v. Playtime Theatres, Inc. According to St. Paul, the ordinance is intended, “not to impact on [sic] the right of free expression of the accused,” but rather to “protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against.” Even assuming that an ordinance that completely proscribes, rather than merely regulates, a specified category of speech can ever be considered to be directed only to the secondary effects of such speech, it is clear that the St. Paul ordinance is not directed to secondary effects within the meaning of Renton. As we said in Boos v. Barry (1988), “Listeners’ reactions to speech are not the type of ‘secondary effects’ we referred to in Renton.” . . .
It hardly needs discussion that the ordinance does not fall within some more general exception permitting all selectivity that for any reason is beyond the suspicion of official suppression of ideas. The statements of St. Paul in this very case afford ample basis for, if not full confirmation of, that suspicion.
Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the ordinance regulates expression based on hostility towards its protected ideological content, this discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests. Specifically, they assert that the ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish. We do not doubt that these interests are compelling, and that the ordinance can be said to promote them. But the “danger of censorship” presented by a facially content-based statute requires that that weapon be employed only where it is “necessary to serve the asserted [compelling] interest.” The existence of adequate content-neutral alternatives thus “undercut[s] significantly” any defense of such a statute. . . . The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul’s compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect. In fact the only interest distinctively served by the content limitation is that of displaying the city council’s special hostility towards the particular biases thus singled out. That is precisely what the 1st Amendment forbids. The politicians of St. Paul are entitled to express that hostility — but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree.
* * *
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 1st Amendment to the fire.
The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.
Justice White, with whom Justice Blackmun and Justice O’Connor join, and with whom Justice Stevens joins except as to Part I-A, concurring in the judgment.
I agree with the majority that the judgment of the Minnesota Supreme Court should be reversed. However, our agreement ends there.
This case could easily be decided within the contours of established 1st Amendment law by holding, as petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the 1st Amendment. Instead, “find[ing] it unnecessary” to consider the questions upon which we granted review, the Court holds the ordinance facially unconstitutional on a ground that was never presented to the Minnesota Supreme Court, a ground that has not been briefed by the parties before this Court, a ground that requires serious departures from the teaching of prior cases and is inconsistent with the plurality opinion in Burson v. Freeman (1992). . . .
I-A. . . . [T]his Court has long held certain discrete categories of expression to be proscribable on the basis of their content. For instance, the Court has held that the individual who falsely shouts “fire” in a crowded theater may not claim the protection of the 1st Amendment. Schenck v. United States (1919). The Court has concluded that neither child pornography nor obscenity is protected by the 1st Amendment. And the Court has observed that, “[l]eaving aside the special considerations when public officials [and public figures] are the target, a libelous publication is not protected by the Constitution.”
All of these categories are content based. But the Court has held that the 1st Amendment does not apply to them because their expressive content is worthless or of de minimis value to society. Chaplinsky v. New Hampshire (1942). We have not departed from this principle, emphasizing repeatedly that, “within the confines of [these] given classification[s], the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.” This categorical approach has provided a principled and narrowly focused means for distinguishing between expression that the government may regulate freely and that which it may regulate on the basis of content only upon a showing of compelling need. . . .
[T]he majority holds that the 1st Amendment protects those narrow categories of expression long held to be undeserving of 1st Amendment protection — at least to the extent that lawmakers may not regulate some fighting words more strictly than others because of their content. The Court announces that such content-based distinctions violate the 1st Amendment because “[t]he government may not regulate use based on hostility — or favoritism — towards the underlying message expressed.” Should the government want to criminalize certain fighting words, the Court now requires it to criminalize all fighting words. . . .
It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil, [New York v.] Ferber (1982); but that the government may not treat a subset of that category differently without violating the 1st Amendment; the content of the subset is by definition worthless and undeserving of constitutional protection. . . .
Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Chaplinsky v. New Hampshire. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. . . .
The overbreadth doctrine has the redeeming virtue of attempting to avoid the chilling of protected expression, but the Court’s new “underbreadth” creation serves no desirable function. Instead, it permits, indeed invites, the continuation of expressive conduct that in this case is evil and worthless in 1st Amendment terms, see Ferber; Chaplinsky, until the city of St. Paul cures the underbreadth by adding to its ordinance a catchall phrase such as “and all other fighting words that may constitutionally be subject to this ordinance.”
Any contribution of this holding to 1st Amendment jurisprudence is surely a negative one, since it necessarily signals that expressions of violence, such as the message of intimidation and racial hatred conveyed by burning a cross on someone’s lawn, are of sufficient value to outweigh the social interest in order and morality that has traditionally placed such fighting words outside the 1st Amendment. Indeed, by characterizing fighting words as a form of “debate,” the majority legitimates hate speech as a form of public discussion.
Furthermore, the Court obscures the line between speech that could be regulated freely on the basis of content (i.e., the narrow categories of expression falling outside the 1st Amendment) and that which could be regulated on the basis of content only upon a showing of a compelling state interest (i.e., all remaining expression). By placing fighting words, which the Court has long held to be valueless, on at least equal constitutional footing with political discourse and other forms of speech that we have deemed to have the greatest social value, the majority devalues the latter category.
I-B. In a second break with precedent, the Court refuses to sustain the ordinance even though it would survive under the strict scrutiny applicable to other protected expression. Assuming, arguendo, that the St. Paul ordinance is a content-based regulation of protected expression, it nevertheless would pass 1st Amendment review under settled law upon a showing that the regulation “‘is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.'” . . . [T]he [majority opinion] treats strict scrutiny analysis as irrelevant to the constitutionality of the legislation:
The dispositive question . . . is whether content discrimination is reasonably necessary to achieve St. Paul’s compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect.
Under the majority’s view, a narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech. This appears to be a general renunciation of strict scrutiny review, a fundamental tool of 1st Amendment analysis. . . .
The majority appears to believe that its doctrinal revisionism is necessary to prevent our elected lawmakers from prohibiting libel against members of one political party but not another and from enacting similarly preposterous laws. The majority is misguided.
Although the 1st Amendment does not apply to categories of unprotected speech, such as fighting words, the Equal Protection Clause requires that the regulation of unprotected speech be rationally related to a legitimate government interest. A defamation statute that drew distinctions on the basis of political affiliation or “an ordinance prohibiting only those legally obscene works that contain criticism of the city government”, would unquestionably fail rational-basis review. . . .
[T]he St. Paul ordinance . . . would pass equal protection review. The ordinance proscribes a subset of “fighting words,” those that injure “on the basis of race, color, creed, religion or gender.” This selective regulation reflects the city’s judgment that harms based on race, color, creed, religion, or gender are more pressing public concerns than the harms caused by other fighting words. In light of our Nation’s long and painful experience with discrimination, this determination is plainly reasonable. . . .
I-C. The Court has patched up its argument with an apparently nonexhaustive list of ad hoc exceptions. . . .
To save the statute, the majority has engrafted the following exception onto its newly announced 1st Amendment rule: Content-based distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is “the very reason the entire class of speech at issue is proscribable.” . . .
The exception swallows the majority’s rule. Certainly, it should apply to the St. Paul ordinance, since “the reasons why [fighting words] are outside the 1st Amendment . . . have special force when applied to [groups that have historically been subjected to discrimination].”
To avoid the result of its own analysis, the Court suggests that fighting words are simply a mode of communication, rather than a content-based category, and that the St. Paul ordinance has not singled out a particularly objectionable mode of communication. Again, the majority confuses the issue. A prohibition on fighting words is not a time, place, or manner restriction; it is a ban on a class of speech that conveys an overriding message of personal injury and imminent violence, a message that is at its ugliest when directed against groups that have long been the targets of discrimination. Accordingly, the ordinance falls within the first exception to the majority’s theory.
As its second exception, the Court posits that certain content-based regulations will survive under the new regime if the regulated subclass “happens to be associated with particular ‘secondary effects’ of the speech . . . ,” which the majority treats as encompassing instances in which “words can . . . violate laws directed not against speech but against conduct. . . .” Again, there is a simple explanation for the Court’s eagerness to craft an exception to its new 1st Amendment rule: Under the general rule the Court applies in this case, Title VII hostile work environment claims would suddenly be unconstitutional.
Title VII . . . makes it unlawful to discriminate “because of [an] individual’s race, color, religion, sex, or national origin”, and the regulations covering hostile workplace claims forbid “sexual harassment,” which includes “[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that create “an intimidating, hostile, or offensive working environment.” The regulation does not prohibit workplace harassment generally; it focuses on what the majority would characterize as the “disfavored topi[c]” of sexual harassment. In this way, Title VII is similar to the St. Paul ordinance that the majority condemns because it “impose[s] special prohibitions on those speakers who express views on disfavored subjects.” Under the broad principle the Court uses to decide the present case, hostile work environment claims based on sexual harassment should fail 1st Amendment review; because a general ban on harassment in the workplace would cover the problem of sexual harassment, any attempt to proscribe the subcategory of sexually harassing expression would violate the 1st Amendment.
Hence, the majority’s second exception, which the Court indicates would insulate a Title VII hostile work environment claim from an underinclusiveness challenge because “sexually derogatory ‘fighting words’. . . may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices.” But application of this exception to a hostile work environment claim does not hold up under close examination.
First, the hostile work environment regulation is not keyed to the presence or absence of an economic quid pro quo, but to the impact of the speech on the victimized worker. Consequently, the regulation would no more fall within a secondary effects exception than does the St. Paul ordinance. Second, the majority’s focus on the statute’s general prohibition on discrimination glosses over the language of the specific regulation governing hostile working environment, which reaches beyond any “incidental” effect on speech. . . . [A]ll St. Paul need do to bring its ordinance within this exception is to add some prefatory language concerning discrimination generally.
As to the third exception to the Court’s theory for deciding this case, the majority concocts a catchall exclusion to protect against unforeseen problems, a concern that is heightened here given the lack of briefing on the majority’s decisional theory. This final exception would apply in cases in which “there is no realistic possibility that official suppression of ideas is afoot.” As I have demonstrated, this case does not concern the official suppression of ideas. . . .
- Although I disagree with the Court’s analysis, I do agree with its conclusion: The St. Paul ordinance is unconstitutional. However, I would decide the case on overbreadth grounds. . . .
I agree with petitioner that the ordinance is invalid on its face. Although the ordinance as construed reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that — however repugnant — is shielded by the 1st Amendment. . . .
The Minnesota Supreme Court erred in its application of the Chaplinsky fighting words test and consequently interpreted the St. Paul ordinance in a fashion that rendered the ordinance facially overbroad.
In construing the St. Paul ordinance, the Minnesota Supreme Court drew upon the definition of fighting words that appears in Chaplinsky — words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” . . . I [understand that the Minnesota Supreme Court] ruled that St. Paul may constitutionally prohibit expression that “by its very utterance” causes “anger, alarm or resentment.”
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. . . .
Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the 1st Amendment. The ordinance is therefore fatally overbroad and invalid on its face. . . .
Justice Blackmun, concurring in the judgment.
. . . I see no 1st Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns, but I see great harm in preventing the people of Saint Paul from specifically punishing the race-based fighting words that so prejudice their community.
I concur in the judgment, however, because I agree with Justice White that this particular ordinance reaches beyond fighting words to speech protected by the 1st Amendment.
Justice Stevens, with whom Justice White and Justice Blackmun join as to Part I, concurring in the judgment.
Conduct that creates special risks or causes special harms may be prohibited by special rules. Lighting a fire near an ammunition dump or a gasoline storage tank is especially dangerous; such behavior may be punished more severely than burning trash in a vacant lot. Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public official may cause substantial social disruption; such threats may be punished more severely than threats against someone based on, say, his support of a particular athletic team. There are legitimate, reasonable, and neutral justifications for such special rules.
This case involves the constitutionality of one such ordinance. Because the regulated conduct has some communicative content — a message of racial, religious, or gender hostility — the ordinance raises two quite different 1st Amendment questions. Is the ordinance “overbroad” because it prohibits too much speech? If not, is it “underbroad” because it does not prohibit enough speech? . . .
III. . . . The St. Paul ordinance is evenhanded. In a battle between advocates of tolerance and advocates of intolerance, the ordinance does not prevent either side from hurling fighting words at the other on the basis of their conflicting ideas, but it does bar both sides from hurling such words on the basis of the target’s “race, color, creed, religion or gender.” . . .
Finally, it is noteworthy that the St. Paul ordinance is, as construed by the Court today, quite narrow. The St. Paul ordinance does not ban all “hate speech,” nor does it ban, say, all cross burnings or all swastika displays. Rather it only bans a subcategory of the already narrow category of fighting words. Such a limited ordinance leaves open and protected a vast range of expression on the subjects of racial, religious, and gender equality. . . .
In sum, the St. Paul ordinance (as construed by the Court) regulates expressive activity that is wholly proscribable and does so not on the basis of viewpoint, but rather in recognition of the different harms caused by such activity. Taken together, these several considerations persuade me that the St. Paul ordinance is not an unconstitutional content-based regulation of speech. Thus, were the ordinance not overbroad, I would vote to uphold it.
Note: Wisconsin v. Mitchell
In Wisconsin v. Mitchell (1993), the Court considered a Wisconsin statute that provided for enhanced penalties for certain racially motivated crimes. Mitchell’s sentence for aggravated battery was enhanced because he intentionally selected his victim because of race. He claimed the enhanced punishment violated the rule of R.A.V. v. St. Paul (1992), and won on that basis in the State Supreme Court. A unanimous United States Supreme Court held Mitchell’s 1st Amendment rights were not violated by the application of the penalty-enhancement provision in sentencing him.
The Court noted that sentencing judges have traditionally considered a wide variety of factors, such as a defendant’s motive for committing the offense, in addition to evidence bearing on guilt. It recognized that a sentencing judge may not consider a defendant’s abstract beliefs, however obnoxious. But it held the Constitution does not erect a per se barrier to the admission of evidence concerning beliefs and associations at sentencing simply because the beliefs are protected by the 1st Amendment. The Court distinguished R.A.V. v. St. Paul, saying that the ordinance in R.A.V. was explicitly directed at speech, while the Wisconsin statute was aimed at conduct unprotected by the 1st Amendment. It further held that a state’s desire to redress what it considers the greater individual and societal harm inflicted by bias-inspired conduct provides an adequate explanation for the provision over and above mere disagreement with offenders’ beliefs.
Finally, the Court announced that the statute had no “chilling effect” on free speech, and therefore was not unconstitutionally overbroad. It dismissed the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of those beliefs would be introduced against him at trial if he committed a serious offense against person or property as too speculative a hypothesis.