June 22, 2012
In 2010, the Supreme Court made a controversial ruling expanding First Amendment rights: Citizens United v. FEC.
In that infamous decision, the Supreme Court struck down federal limits on corporate political campaign expenditures through finding, essentially, that corporations are individuals and that money is speech.
Almost 18 years earlier, the Supreme Court issued another controversial ruling expanding First Amendment rights.
On June 22, 1992, the Supreme Court decided R.A.V. v. City of St. Paul, holding that burning crosses inside the fenced yard of a black family living across the street is protected speech.
Supporters of the R.A.V. decision may argue that the ruling didn’t expand the previous boundaries of First Amendment protections to specifically include cross-burning on a black family’s front lawn.
But that just isn’t the case.
Need proof? Let’s look at the R.A.V. opinion and previous First Amendment jurisprudence.
First, here’s the St. Paul, Minnesota, city ordinance that R.A.V. struck down:
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.
The Minnesota Supreme Court had upheld the constitutionality of the ordinance, finding that it “could be narrowly interpreted to prohibit only” fighting words – “expressive conduct which falls outside First Amendment protection.”
The Minnesota high court, in making this determination, cited the 1942 U.S. Supreme Court ruling Chaplinsky v. New Hampshire.
Chaplinsky established that “fighting words” – words which by their very utterance inflict injury or tend to incite an immediate breach of the peace – weren’t protected by the First Amendment.
As some of you may have noted, the St. Paul city ordinance at issue in R.A.V. censors more speech than just “fighting words.”
In other words, the Minnesota Supreme Court misapplied Chaplinsky in an effort to salvage the law.
Did the R.A.V. majority opinion, written by Justice Antonin Scalia and joined by Chief Justice Rehnquist and Justices Kennedy, Souter, and Thomas, make this finding?
Instead, the R.A.V. majority went in an entirely new direction.
Scalia wrote that fighting words are not wholly unprotected under the First Amendment.
When faced with the reality that all previous Supreme Court precedent had unequivocally held otherwise, Scalia wrote that “such statements must be taken in context” and aren’t “literally true.”
Okay, well, anyhow, Scalia’s point with this was to extend First Amendment protections to R.A.V.’s cross-burning through finding the St. Paul law discriminatory on the basis of viewpoint.
“Viewpoint discrimination” in First Amendment cases occurs when a law favors one side of a debate over another (i.e. a law restricts pro-life literature distribution, but allows pro-choice).
Scalia’s example of how St. Paul’s law discriminated in such a way is as follows:
“[Under the St. Paul law,] [o]ne could hold up a sign saying…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.’”
This, Scalia wrote, greatly handicapped one side of the debate, while licensing the other side “to fight freestyle.”
Although Scalia’s logic may appear sound at first blush, it is extraordinarily flawed.
First of all, Scalia’s metaphor is completely inapt.
As Justice Stevens pointed out in his concurrence, “[t]he response to a sign saying that “all [religious] bigots are misbegotten” is a sign saying that “all advocates of religious tolerance are misbegotten.”
Stated differently, the Ku Klux Klan and African Americans are not opposing viewpoints; the Klan and those who advocate for racial tolerance are.
Under this logic, the St. Paul ordinance was entirely viewpoint neutral – it barred both sides from using fighting words on the basis of the target’s “race, color, creed, religion or gender.”
However, even if the law was viewpoint neutral, it was still unconstitutional, since, as the remaining four Justices (White, Blackmun, O’Connor, and Stevens) held in their concurrences, it applied not only to unprotected “fighting words,” but to speech long held protected by the First Amendment.
Does this distinction really matter?
Absolutely: under the majority opinion, acts motivated purely by bigotry are a protected “viewpoint” which the government may not discriminate against.
This would not have been the case had the Court struck down the law on overbreadth grounds, as the concurring Justices had wanted.
+1 for bigots across the country, I guess.