R. A. V. v. City of St. Paul 505 U.S. 377 (1992)
R. A. V. v. CITY OF ST. PAUL 505 U.S. 377 (1992)
In R. A. V. v. City of St. Paul, the Supreme Court struck down a St. Paul, Minnesota ordinance that proscribed cross-burning and other actions "which one knows or has reasonable grounds to know" will cause "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The Court was unanimous that the law was unconstitutional, but agreed about little else. Four members of the Court—Justices byron r. white, harry a. blackmun, john paul stevens, and sandra day o'connor—concurred in the judgment, but solely on the ground that the ordinance was overly broad, sweeping within its proscription expression that should be protected. It is safe to assume that these Justices would have upheld a narrowly drawn statute that prohibited hate crime. The other five members of the Court, in the majority opinion of Justice antonin scalia, reached further, characterizing the St. Paul ordinance—and presumably any content-discriminatory hate crime law—as an unconstitutional content-based regulation of speech in violation of the first amendment.
In R. A. V., the defendant Robert Viktora, then a minor, was accused of burning a cross on the lawn of Russell and Laura Jones and their children, an African American family that had recently moved into the neighborhood. In moving to dismiss the indictment, Viktora asserted both that the ordinance was overbroad and that it was an unconstitutional, content-based restriction on his freedom of speech. The Minnesota Supreme Court rejected the overbreadth challenge because that court construed the ordinance narrowly to apply only to fighting words, and therefore not to apply to any expression protected by the First Amendment. Although a minority of the U.S. Supreme Court concluded that this limiting construction by the Minnesota court did not save the ordinance from overbreadth, Scalia was prepared to accept that all of the expression reached by the ordinance was proscribable. He thus had to reach the content-based challenge.
Scalia's opinion for the court used a limited categorical approach to the First Amendment. Acknowledging that fighting words, along with other categories of expression such as obscenity and defamation, are not entitled to full First Amendment protection, Scalia asserted that these forms of expression nevertheless enjoy some limited protection and are not "entirely invisible to the Constitution." Within any of these categories, expression may be proscribed only on the basis of its categorical nature and not on the basis of its content.
Scalia's approach to the content-neutrality doctrine did not purport to require the state to proscribe either all forms of proscribable speech or none at all. Rather, he identified two exceptions to the general unacceptability of content-based restrictions on expression. First, choices may be made as to which forms of speech to proscribe so long as these choices do not address the content of the expression. For example, regulations restricting obscene communications when the medium of communication is the telephone, according to Scalia, permissibly regulate the medium but not the message. Second, Scalia would also exempt from the content-neutrality rule regulations that address content for the "very reason the entire class of speech at issue is proscribable" in the first place. For example, a regulation prohibiting only obscenity "which is the most patently offensive in its prurience " would be permissible.
Scalia concluded that the St. Paul ordinance fell within neither exception. Instead, when he applied his approach to the St. Paul ordinance, he concluded that the city had established a regulation aimed directly at racist speech and biased beliefs rather than at fighting words generally or at a subgroup of fighting words selected for reasons other than the content of those words. He thus held that the ordinance impermissibly chose sides in the debate over racial prejudice. In perhaps the most famous sentence in the Court's R. A. V. opinion, Scalia wrote: "St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules."
The ultimate reach of R. A. V. was substantially limited by the Court's decision one year later in wisconsin v. mitchell (1993), which upheld a Wisconsin hate crime law providing enhanced penalties for crimes motivated by racial bias.
Frederick M. Lawrence
Lawrence, Frederick M. 1993 Resolving the Hate Crimes/ Hate Speech Paradox: Punishing Bias Crimes and Protecting Racist Speech. Notre Dame Law Review 68:673–721.
Symposium 1991 Free Speech and Religious, Racial and Sexual Harassment. William and Mary Law Review 32:207–351.