Arguing Hate Crime Laws and Free Speech Before the Supreme Court

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Arguing Hate Crime Laws and Free Speech Before the Supreme Court

Peter Irons

Early twentieth-century Supreme Court decisions on the First Amendment focused on state and federal laws aimed at Communists, anarchists, and other radicals. In the 1992 case of RAV v. St. Paul, the Supreme Court for the first time addressed the constitutionality of hate crime laws. Such laws, which were passed by many states and cities in the 1980s and 1990s, sought to punish expressions of animosity toward certain groups, typically by allowing extra punishment for acts committed against a person or person's property because of that person's race, gender, religion, nationality, sexual orientation, or other group characteristic. In 1990 a white teenager was convicted under a St. Paul, Minnesota, ordinance after he burned a cross on a black family's lawn. He challenged his conviction on free speech grounds. In 1992 the Supreme Court ruled in the case of RAV v. Minnesota that the city ordinance against "bias-motivated crime" violated the First Amendment. Many civil libertarians celebrated the decision as a victory for free speech. For example, the liberal New Republic magazine argued that the Supreme Court "has not only reaffirmed but dramatically extended the principle that government may not silence speech on the basis of its content, and that no insults, no matter how sharply they sting, may be singled out for punishment."


Peter Irons, ed., May It Please the Court: The First Amendment. New York: New Press, 1997.

The following selection consists of excerpts from the oral arguments made before the Supreme Court on December 4, 1991, for the case of RAV v. Minnesota. It includes the presentations by the participating counsels—Ramsey county attorney Tom Foley and defense lawyer Edward J. Cleary—as well as their responses to questions from Supreme Court members. The transcript of the arguments was edited by political science professor Peter Irons, who also wrote the "Narrator" sections setting the scene for the arguments.

Primary Source Text

Counsel for petitioner: Edward J. Cleary, St. Paul, Minnesota

Counsel for respondent: Tom Foley, Ramsey County Attorney, St. Paul, Minnesota

Chief Justice Rehnquist: We'll hear argument now in 90-7675, R.A.V. v. St. Paul, Minnesota.

Narrator: It's December 4, 1991. We're in the chamber of the United States Supreme Court in Washington, D.C. Chief Justice William Rehnquist has called for argument a case that tests the outer limits of the First Amendment.

This case began at 290 Earl Street in St. Paul, Minnesota. Early in 1990, Russell and Laura Jones and their five children moved into the working-class neighborhood of Dayton's Bluff. The Jones' were black and most of their neighbors were white. In the early morning of June 21, 1990, the Jones' heard noises, went outside and discovered a burning cross in their front yard. It was crudely made from two wooden chair legs, wrapped in terry cloth. The Jones' were terrified and quickly called the police.

Within a few days, the police arrested two teenage boys, who both lived near the Jones' home. They were charged under a St. Paul ordinance, adopted in 1982, which made it a crime to place on any property any symbol, object, or words that might arouse, in the law's words, "anger, alarm or resentment in others on the basis of race, color, creed, or gender. . . ." The law specified burning crosses and Nazi swastikas as prohibited symbols.

The St. Paul ordinance was one of many legal efforts to punish "hate crimes" during the 1980s. Legal challenges to such laws faced the obstacle of a 1942 Supreme Court ruling, upholding the conviction of Walter Chaplinsky, who called a New Hampshire policeman a "goddamn fascist" during a street-corner altercation. The Chaplinsky case set out a "fighting words" exception to the First Amendment's free speech clause. However, in 1969 the Supreme Court ruled that Clarence Brandenburg, a Ku Klux Klan leader in Ohio, could not be punished for advocating violence against blacks and Jews, without a showing of "imminent lawless action."

The Chaplinsky and Brandenburg cases form the legal backdrop for today's argument. One of the boys charged in the cross burning pleaded guilty under the "hate crime" law. A juvenile court judge assigned a St. Paul lawyer, Edward Cleary, to represent the other boy, identified by his initials as R.A.V. His full name was Robert A. Viktora. Cleary had little in common with his client, who adopted "skinhead" attire and admitted contact with racist groups. But Cleary believed the "hate crime" law violated the First Amendment, and he persuaded a state judge to strike down the law on free speech grounds. But the Minnesota Supreme Court reversed this decision, citing the Chaplinsky and Brandenburg cases for authority. The U.S. Supreme Court granted Cleary's petition for review, and Chief Justice Rehnquist welcomes him to the podium.

Rehnquist: Mr. Cleary.

Cleary: Mr. Chief Justice, and may it please the Court. Each generation must reaffirm the guarantee of the First Amendment with the hard cases. The framers understood the dangers of orthodoxy and standardized thought and chose liberty. We are once again faced with a case that will demonstrate whether or not there is room for the freedom for the thought that we hate, whether there is room for the eternal vigilance necessary for the opinions that we loathe.

The conduct in this case is reprehensible, is abhorrent, and is well known by now. I'm not here to defend the alleged conduct, but as Justice [Felix] Frankfurter said forty years ago, history has shown that the safeguards of liberty are generally forged in cases involving not very nice people. He might just as well have said, involving cases involving very ugly fact situations. I am here to discuss and to ask the Court to review the Minnesota Supreme Court's interpretation of a St. Paul ordinance.

The Chaplinsky and Brandenburg Cases

Narrator: Justice Sandra O'Connor quickly asks Cleary to address the Chaplinsky and Brandenburg cases. He takes a cautious approach in responding.

O'Connor: And in essence what the Minnesota Supreme Court appears to have said is, we interpret the law as reaching only those exceptions that the Supreme Court has recognized to the First Amendment—fighting words, for instance, out of our prior Chaplinsky case. Now, do you agree that that's what they've done?

Cleary: I agree that the court attempted to narrow the ordinance and in doing so cited Chaplinsky and Brandenburg to this court.

O'Connor: Right, and in essence they said what that statute means is what the Supreme Court has permitted in Brandenburg and Chaplinsky.

Cleary: They did cite those cases, Your Honor. I do believe, however, that the expansive language that was used shows a much broader reach than what this Court indicated in those cases.

O'Connor: So you would ask us to somehow overturn those older holdings.

Cleary: No, I don't believe it's necessary to do that, Your Honor, to get to the position that I'm requesting.

Narrator: Asking the justices to overturn earlier decisions is always risky. Another question allows Cleary to suggest a way around Chaplinsky.

Court: Mr. Cleary, isn't one of your complaints that the Minnesota statute as construed by the supreme court of Minnesota punishes only some fighting words and not others?

Cleary: It is, Your Honor. That is one of my positions, that in doing so, even though it is a subcategory, technically, of unprotected conduct, it is still picking out an opinion, a disfavored message, and making that clear through the state. It's a paternalistic idea, and the problem we have is that the government must not betray neutrality, and I believe it does, even when it picks out a subcategory.

Narrator: Cleary had shied away from asking the justices to overturn the Chaplinsky decision, which defined "fighting words" as "those which by their very utterance inflict injury" on others. Questions on this issue move Cleary to shift his position on Chaplinsky.

Court: With respect just to the words that injure, where would you draw the line on what is permissible?

Cleary: I believe, Your Honor, that the—I'll be very honest. I think that's a very hard line to draw, and I think that's perhaps the crux of this case to a certain degree, is the offensiveness idea and how—

Court: Is it hard enough so that in fact we have to say that that was simply a mistaken statement and disavow it and leave Chaplinsky with the fighting words category as alone subject to punishment?

Cleary: No, I don't believe so. I believe that the Court must draw the line in favor of the individual right of self-expression. I think that if the line—

Court: Well, I agree, but aren't you really coming to the point of saying that the Chaplinsky reference to words that injure was in fact, at least by today's standards, an erroneous reference and we should disavow Chaplinsky to that extent?

Cleary: I am.

Laws Cannot Discriminate

Narrator: Cleary argues that the First Amendment does not permit laws to discriminate between "good" and "bad" attitudes or viewpoints toward minorities and women.

Cleary: The debate in this case is not about the wisdom of eradicating intolerance, the debate is about the method of reaching that goal. I believe that the city council officials in this case and in other communities are very well meaning, and that's usually the case, but the problem is that I believe these type of laws cross the line from the Fourteenth Amendment duty of the state to not participate in any racist state action or any intolerant state action, in that sense, with the First Amendment right of self-expression, even if it be intolerant, provided it does not cross the line of illegal conduct itself. I believe the danger in a law like this is that it does pick out viewpoints, that it is viewpoint-discriminatory.

Narrator: Minnesota has a law that punishes "terroristic threats" against others. Cleary faces questions about applying such a law to his client.

Court: Could this conduct be punished by a narrowly drawn statute that proscribes threats that cause violence? Could that state a cause of action against your client?

Cleary: I believe it could.

Court: On these facts?

Cleary: I believe it could. I believe, I have never argued that—again, that the conduct alleged in this case could not be addressed by viewpoint-neutral laws, but this type of a law leaves open the possibility for viewpoint discrimination, and it opens up, again, the selective enforcement idea.

Narrator: Cleary reminds the justices that the First Amendment was designed to protect free speech against fear and hysteria.

Cleary: Certainly in this current time there is a great deal of fear, and the First Amendment—and as it is construed and as it is before this Court, has to face the environment that we find ourselves in as a nation. Justice Brandeis once said that fear breeds repression and repression breeds hate. I believe that this is the hour of danger for the First Amendment in that there are many groups that would like to encroach upon its principles with well-meaning intentions, but in doing so, they are still punishing the content of the communication and they are doing so in a discriminatory manner, and the government is betraying a neutral principle in the sense that they are allowing that to happen and they are partaking in that.

Narrator: The Court ruled in 1989 that flag-burning was protected by the First Amendment, in Texas v. ]ohnson. Chief Justice Rehnquist dissented in that case, but he asks Cleary how the decision applies to cross burning. Cleary cites other "symbolic speech" cases—allowing red flags and black armbands as protest symbols—in his reply.

Rehnquist: The Court's opinion in Texas against Johnson suggested that there couldn't be a fighting symbol at any rate, per se, did it not?

Cleary: That's correct, Chief Justice. I think that the Court's holding in Texas v. Johnson supports the petitioners' position in this case, and I also would point out that I do not think that the dissents are necessarily inconsistent with the petitioners' position on this law. I would say that is particularly true because of the fact that this Court put a great emphasis on the unique nature of the American flag and in doing so, I believe, acknowledged the Stromberg red flag of the thirties, the black armband in the sixties, in Tinker, and was mindful of the fact that once that door is opened, that it could lead to a ban on symbolic behavior in such a fashion that a great deal of expression would be prohibited.

Defending Hate Crime Laws

Narrator: Tom Foley is the county attorney in St. Paul. He defends the city's "hate crime" law, and endorses the Chaplinsky and Brandenburg rulings as precedent.

Foley: Mr. Chief Justice, and may it please the Court. The First Amendment was never intended to protect an individual who burns a cross in the middle of the night in the fenced yard of an African-American family's home. The city of St. Paul has the right to prohibit and prosecute such conduct. The ordinance at issue in this case has been interpreted by the Minnesota Supreme Court to prohibit only conduct that inflicts injury, tends to incite an immediate breach of the peace, or provokes imminent lawless action.

And unless this Court is willing to abandon its holdings in Chaplinsky and Brandenburg, holdings that it has upheld for the last fifty years, this ordinance must be upheld.

Narrator: Foley outlines his argument, and immediately runs into questions from Justice O'Connor,

Foley: In this oral argument I'm going to touch on four propositions. First is the purpose of the ordinance. Second, that the ordinance has been narrowly construed by the Minnesota Supreme Court only to apply to fighting words. Third, that the ordinance as construed is not overbroad or vague. And fourth, that the ordinance does not interfere with legitimate First Amendment rights.

O'Connor: Well, Mr. Foley, would you address the concern expressed by your opponent that that ordinance is limited to only fighting words that arouse anger, alarm, or resentment on the basis of race, color, creed, or religion or gender and not other fighting words that could cause the same reaction in people? The argument is that the statute is underinclusive.

Foley: Your Honor, it's our position that the statute is not underinclusive, that this is a fighting words case, that this is unprotected conduct under the First Amendment, and that the city of St. Paul has the right to determine which harms it can proscribe within the limits of its jurisdiction.

O'Connor: Well, certainly it is limited by subject matter or content of the fighting words that are spoken, is it not? In that sense it is a content-based ordinance.

Foley: Your Honor, it's our position that it is not a content-based ordinance, that it certainly could be used to be a content-neutral ordinance.

O'Connor: Well, but it doesn't cover fighting words that are not limited to words on the basis of race, color, creed, religion, or gender.

Foley: That's correct, Your Honor.

Questions from Justice Scalia

Narrator: Picking up where Justice O'Connor ended, Justice Scalia turns up the heat on Foley.

Scalia: If you want to prohibit fighting words, prohibit fighting words. But why pick only if you use fighting words for these particular purposes: race, color, creed, religion, and gender? What about other fighting words?

Foley: I think the city has an absolute right and purpose to try to regulate the harm that goes on to its citizens. And certainly this bias-motivated conduct and violence is much more harmful and has more harmful impacts to its citizens—

Scalia: That's a political judgment. I mean, you may feel strongest about race, color, creed, religion, or gender. Somebody else may feel strong as to about philosophy, about economic philosophy, about whatever. You picked out five reasons for causing somebody to breach the peace. But there are a lot of other ones. What's your basis for making that subjective discrimination?

Foley: Your Honor, the city of St. Paul is attempting to fashion responses to violence that it deems necessary to prohibit and will add additional harms to be regulated as it finds them. Under this particular ordinance, it seemed that this is a particular harm going on that is necessary within the city of St. Paul to prohibit and regulate.

Scalia: It doesn't have to add anything. You could just drop the words and, you know, just say that arouses anger, alarm, or resentment in others, period, or shall be guilty of a misdemeanor. It didn't have to say arouses anger, alarm, or resentment on the basis of race, color, creed, religion, or gender. You don't need that for Chaplinsky. If it's a fighting word, it's a fighting word. They could get the cross burning, they could get all sorts of activities.

Foley: Your Honor, I think it's the city's position that this is a fighting words case, that the ordinance has been sufficiently narrowed by the Minnesota Supreme Court. And you could reread that ordinance under these facts to say that whoever, based on race, places an object or symbol with the intent to inflict injury, incite immediate violence, or provoke imminent lawless action is guilty of a crime. And I think that the Minnesota Supreme Court's narrowing of that ordinance is sufficient to uphold its constitutionality under the Chaplinsky and Brandenburg holdings of this Court.

Scalia: Well, are you saying that because they can prevent or punish all fighting words, they can select any category within the broad scope of fighting words for it to be singled out?

Foley: Yes, Your Honor.

Narrator: Foley tries to move on, but his claim that St. Paul can pick and choose the groups to protect from hate crimes provokes another round of questions from Justice Scalia.

Foley: I think it is important to look at bias-motivated violence, which is significantly more harmful on the impact than similar criminal conduct not similarly motivated. The burning of the cross and the African-American family is not the equivalent of a simple trespass or minor arson, either to the targeted victims or to the community in which it occurred.

Scalia: Well, you say bias-motivated, but it depends on what your biases are. If a family with a mentally deficient child should move into the neighborhood or if there should be established in the neighborhood a home for the mentally ill, and someone should burn a cross on the lawn of that home or institution with a sign that says, mentally ill out, that would not be covered by this ordinance, isn't that correct?

Foley: I don't believe under the facts that you described that it would.

Scalia: It's the wrong kind of bias. It's—at least until they come around to adding—which may well be the next one, gender, religion, gender, or disability, until they come around to adding that, it's the wrong kind of bias and therefore you can't—

Foley: It's probably not addressed under this particular ordinance. There are other alternative criminal laws that may apply to that particular situation.

Scalia: Why is that? I mean, if you are concerned about breaches of the public peace, if it's a fighting words problem, why is it okay for the state to have the public peace broken for that reason? It's only these, other reasons they are worried about, why is that? That seems to me like the rankest kind of subject matter discrimination.

Foley: Well, there are many reasons that cities and state legislatures look to a particular wrong that they are attempting to address, and I don't think they address all of those wrongs at the same time, and they attempt to get as many of them as they can, and they do address in a content-based—under certain circumstances, certain harms that they want to address and including—

Scalia: It wasn't hard to write this in such a way that it wouldn't discriminate in that fashion. They just had to drop out, on the basis of race, color, creed, religion, or gender, but those are the only things that they seemed to be concerned about.

Foley: I think the Minnesota Supreme Court addressed or made reference to that issue when it said that the particular city ordinance could have been drawn a little bit better, but then went on to clearly narrow the impact of that ordinance and narrowed it only to apply to fighting words. And in the context of the facts of this case, the burning of the cross, the historical context of a burning cross in the middle of the night is a precursor to violence and hatred in this country.

Victims of Hate Crimes

Narrator: Foley concludes with a reminder of the impact of hate crimes on victims like the Jones family.

Foley: In the case of bias-motivated crimes, there is a compelling state purpose to deal with what is a cancer on society, and it will, unless effectively dealt with, spread throughout the community. Bias motivated crimes have a devastating effect on the particular target victims and equally profound effect on all members of the minority that is indirectly targeted and a pervasive effect on the community as a whole.

Given the historical experience of African-Americans, a burning cross targeted at a black family under the circumstances outlined is an unmistakable threat. Terroristic conduct such as this can find no protection in the Constitution. Thank you, Your Honors.

The Supreme Court's Decision

Narrator: On June 22, 1992—two years and one day after Robert Viktora burned a cross in the front yard of the Jones family—the Supreme Court ruled that St. Paul's "hate crimes" ordinance violated the First Amendment. The decision was unanimous, but the justices agreed on hardly anything in this hard case. The four separate opinions in R.A.V. v. St. Paul exposed the deep—almost bitter—divisions within the Court over the troubling issue of hate speech.

Justice Antonin Scalia had peppered both lawyers with questions during oral argument. He left no doubt that he considered the law an impermissible content-based regulation of speech, in his opinion for the Court, Scalia took a hard line. Singling out for punishment any category of speech, based on its viewpoint or message, violates the First Amendment. No matter how offensive the message may be, creating "favored" and "disfavored" categories of speech turns the government into a censorship board. "The First Amendment," Scalia wrote, "does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects." Scalia spoke in his opinion for Chief Justice Rehnquist and Justices Anthony Kennedy, David Souter, and Clarence Thomas.

The remaining four justices agreed that the ordinance violated the First Amendment. However, as Justice Byron White wrote, "our agreement ends there." White accused Scalia of tossing out the "fighting words" exception to protected speech in the Chaplinsky case. This category of speech, White stated, "is by definition worthless and undeserving of constitutional protection." Had the St. Paul city council enacted a more narrowly-drawn law, Justice White would have upheld Robert Viktora's conviction. But the law was "overbroad" in banning all speech that might arouse anger or resentment. The vice of the law, White wrote, was that it reaches beyond "fighting words" and "criminalizes a substantial amount of expression that—however repugnant—is shielded by the First Amendment."

The Court's decision in R.A.V. leaves the "fighting words" doctrine in limbo. The justices have not upheld a conviction based on Chaplinsky, but they haven't overruled this historic decision, preferring to leave it in their judicial arsenal. Back in St. Paul, the Court's decision changed very little. Robert Viktora got into trouble again, after a skinhead companion yelled "White Power" at a police officer. Viktora was fined $100 for scuffling with the officer. The Jones family still lives in their home on Earl Street, but there have been other cross burnings in the area. Racial tensions create a tinderbox in many American communities. The hard job, as Justice Scalia wrote, is to deal with these tensions "without adding the First Amendment to the fire."

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Arguing Hate Crime Laws and Free Speech Before the Supreme Court

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