First Amendment communication law paper

Read the syllabus, headnotes and at least the majority opinion inR.A.V. v St. Paul, 505 U.S. 377 (1992) or Texas v Johnson,  491 U.S. 397 (1989). (attached)

Find and read at least one online legal resource (e.g. Oyez or JUSTICA, but not Wikipedia) discussing the case.

Find and read an authoritative and substantive article discussing the result and significance of the case. This could be a law review article or a detailed article in the popular press (e.g. The New York Times, The New Republic, The Atlantic).

Write a discussion paper of no more than 500 words (2 pages double-spaced) in which you do the following:

Clearly state the FIRST AMENDMENT question in the case.

Clearly state the holding in the case. What did the court decide about the First Amendment legal principles at issue in the case?

Briefly discuss the strengths and weaknesses of the Court’s decision.

Clearly state and support your opinion as to the merits of the decision. Did the Court strike the correct balance in its definition of First Amendment protections in this case?

R.A.V. v. City of St. Paul
1
505 U.S. 377
R.A.V. v. City of St. Paul (No. 90-7675)
Argued: Dec. 4, 1991
Decided: June 22, 1992
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Syllabus
Opinion, Scalia
Concurrence, White
Concurrence, Blackmun
Concurrence, Stevens
Syllabus
After allegedly burning a cross on a black family’s lawn, petitioner R.A.V. was charged under,
inter alia, the St. Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits the display
of a symbol which one knows or has reason to know “arouses anger, alarm or resentment in
others on the basis of race, color, creed, religion or gender.” The trial court dismissed this charge
on the ground that the ordinance was substantially overbroad and impermissibly content-based,
but the State Supreme Court reversed. It rejected the overbreadth claim because the phrase
“arouses anger, alarm or resentment in others” had been construed in earlier state cases to limit
the ordinance’s reach to “fighting words” within the meaning of this Court’s decision in
Chaplinsky v. New Hampshire, 315 U.S. 568, 572, a category of expression unprotected by the
First Amendment. The court also concluded that the ordinance was not impermissibly contentbased, because it was narrowly tailored to serve a compelling governmental interest in protecting
the community against bias-motivated threats to public safety and order.
Held: The ordinance is facially invalid under the First Amendment. Pp. 381-396.
(a) This Court is bound by the state court’s construction of the ordinance as reaching only
expressions constituting “fighting words.” However, R.A.V.’s request that the scope of the
Chaplinsky formulation be modified, thereby invalidating the ordinance as substantially
overbroad, need not be reached, since the ordinance unconstitutionally prohibits speech on the
basis of the subjects the speech addresses. P. 381.
(b) A few limited categories of speech, such as obscenity, defamation, and fighting words, may
be regulated because of their constitutionally proscribable content. However, these categories are
not entirely invisible to the Constitution, and government may not regulate them based on
hostility, or favoritism, towards a nonproscribable message they contain. Thus, the regulation of
“fighting words” may not be based on nonproscribable content. It may, however, be
underinclusive, addressing some offensive instances and leaving other equally offensive ones
R.A.V. v. City of St. Paul
2
alone, so long as the selective prescription is not based on content, or there is no realistic
possibility that regulation of ideas is afoot. Pp. 382-390. [p378]
(c) The ordinance, even as narrowly construed by the State Supreme Court, is facially
unconstitutional, because it imposes special prohibitions on those speakers who express views on
the disfavored subjects of “race, color, creed, religion or gender.” At the same time, it permits
displays containing abusive invective if they are not addressed to those topics. Moreover, in its
practical operation, the ordinance goes beyond mere content, to actual viewpoint, discrimination.
Displays containing “fighting words” that do not invoke the disfavored subjects would seemingly
be useable ad libitum by those arguing in favor of racial, color, etc. tolerance and equality, but
not by their opponents. St. Paul’s desire to communicate to minority groups that it does not
condone the “group hatred” of bias-motivated speech does not justify selectively silencing
speech on the basis of its content. Pp. 391-393.
(d) The content-based discrimination reflected in the ordinance does not rest upon the very
reasons why the particular class of speech at issue is proscribable, it is not aimed only at the
“secondary effects” of speech within the meaning of Renton v. Playtime Theatres, Inc., 475 U.S.
41, and it is not for any other reason the sort that does not threaten censorship of ideas. In
addition, the ordinance’s content discrimination is not justified on the ground that the ordinance
is narrowly tailored to serve a compelling state interest in ensuring the basic human rights of
groups historically discriminated against, since an ordinance not limited to the favored topics
would have precisely the same beneficial effect. Pp. 393-396.
464 N.W.2d 507 (Minn.1991), reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and KENNEDY,
SOUTER, and THOMAS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in
which BLACKMUN and O’CONNOR, JJ., joined, and in which STEVENS, J., joined except as
to Part I-A, post, p. 397. BLACKMUN, J., filed an opinion concurring in the judgment, post, p.
415. STEVENS, J., filed an opinion concurring in the judgment, in Part I of which WHITE and
BLACKMUN, JJ., joined, post, p. 416. [p379]
TOP
Opinion
SCALIA, J., Opinion of the Court
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. Although this conduct could have been punished [p380] under any
R.A.V. v. City of St. Paul
3
of a number of laws, [n1] one 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 (1990), 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 First
Amendment. [n2] 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,
see, e.g., In re Welfare of S.L.J., 263 N.W.2d 412 (Minn.1978), 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 .
. . ,” In re Welfare of R.A.V., 464 N.W.2d 507, 510 (Minn.1991) (citing Chaplinsky [p381] v.
New Hampshire, 315 U.S. 568, 572 (1942)), and therefore the ordinance reached only expression
“that the first amendment does not protect.” 464 N.W.2d at 511. The court also concluded that
the ordinance was not impermissibly content-based because, in its view,
the ordinance is a narrowly tailored means toward accomplishing the compelling governmental
interest in protecting the community against bias-motivated threats to public safety and order.
Ibid. We granted certiorari, 501 U.S. 1204 (1991).
I
In construing the St. Paul ordinance, we are bound by the construction given to it by the
Minnesota court. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S.
328, 339 (1986); New York v. Ferber, 458 U.S. 747, 769, n. 24 (1982); Terminiello v. Chicago,
337 U.S. 1, 4 (1949). 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. 464 N.W.2d at 510-511. Petitioner and his amici urge us to
modify the scope of the Chaplinsky formulation, thereby invalidating the ordinance as
“substantially overbroad,” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). 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. [n3] [p382]
The First Amendment generally prevents government from proscribing speech, see, e.g.,
Cantwell v. Connecticut, 310 U.S. 296, 309-311 (1940), or even expressive conduct, see,e.g.,
Texas v. Johnson, 491 U.S. 397, 406 (1989), because of disapproval of the ideas expressed.
R.A.V. v. City of St. Paul
4
Content-based regulations are presumptively invalid. Simon & Schuster, Inc. v. Members of
N.Y. State Crime Victims Bd., 502 U.S. 105 (1991); id. at 115 (KENNEDY, J., concurring in
judgment); Consolidated Edison of N.Y. v. Public Serv. Comm’n of N.Y., 447 U.S. 530, 536
(1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972). From 1791 to the present,
however, our society, like other free but civilized societies, has permitted restrictions upon the
content of speech in a [p383] 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, supra, 315 U.S. at 572. We have recognized that “the freedom of speech” referred to
by the First Amendment does not include a freedom to disregard these traditional limitations.
See, e.g., Roth v. United States, 354 U.S. 476 (1957) (obscenity); Beauharnais v. Illinois, 343
U.S. 250 (1952) (defamation); Chaplinsky v. New Hampshire, supra, (“fighting words”); see
generally Simon & Schuster, supra, 502 U.S. at 124 (KENNEDY, J., concurring in judgment).
Our decisions since the 1960’s have narrowed the scope of the traditional categorical exceptions
for defamation, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert
Welch, Inc., 418 U.S. 323 (1974); see generally Milkovich v. Lorain Journal Co., 497 U.S. 1, 1317 (1990), and for obscenity, see Miller v. California, 413 U.S. 15 (1973), but a limited
categorical approach has remained an important part of our First Amendment jurisprudence.
We have sometimes said that these categories of expression are “not within the area of
constitutionally protected speech,” Roth, supra, 354 U.S. at 483; Beauharnais, supra, 343 U.S. at
266; Chaplinsky, supra, 315 U.S. at 571-572; or that the “protection of the First Amendment
does not extend” to them, Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,
504 (1984); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 124 (1989). Such
statements must be taken in context, however, and are no more literally true than is the
occasionally repeated shorthand characterizing obscenity “as not being speech at all,” Sunstein,
Pornography and the First Amendment, 1986 Duke L.J. 589, 615, n. 146. What they mean is that
these 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 [p384] 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. We recently acknowledged this distinction in Ferber, 458 U.S. at
763, where, in upholding New York’s child pornography law, we expressly recognized that there
was no “question here of censoring a particular literary theme. . . .” See also id. at 775
(O’CONNOR, J., concurring) (“As drafted, New York’s statute does not attempt to suppress the
communication of particular ideas”).
Our cases surely do not establish the proposition that the First Amendment imposes no obstacle
whatsoever to regulation of particular instances of such proscribable expression, so that the
government “may regulate [them] freely,” post at 400 (WHITE, J., concurring in judgment). 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
R.A.V. v. City of St. Paul
5
of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment
protection is at odds with common sense and with our jurisprudence as well. [n4] It is [p385] not
true that “fighting words” have at most a “de minimis” expressive content, ibid., or that their
content is in all respects “worthless and undeserving of constitutional protection,” post at 401;
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, 315 U.S. at 572 (emphasis added).
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 Johnson, 491 U.S. at 491 U.S. 406″]406-407. See also Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 569-570 (1991) (plurality); id. at 573-574 (SCALIA, J., concurring in
judgment); id. at 581-582 (SOUTER, J., concurring in judgment); United [p386] States v.
O’Brien, 391 U.S. 367, 376-377 (1968). 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.” 406-407. See also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569-570 (1991)
(plurality); id. at 573-574 (SCALIA, J., concurring in judgment); id. at 581-582 (SOUTER, J.,
concurring in judgment); United [p386] States v. O’Brien, 391 U.S. 367, 376-377 (1968).
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.” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted); see also Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 298 (1984) (noting that the O’Brien test
differs little from the standard applied to time, place, or manner restrictions). And just as the
power to proscribe particular speech on the basis of a non-content 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 First 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, as Justice Frankfurter recognized, a “mode of
speech,” Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring in result);
both can be used to convey an idea; but neither has, in and of itself, a claim upon the First
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. Compare Frisby v. Schultz, 487 U.S. 474 (1988) (upholding, against facial challenge,
a content-neutral ban on targeted residential picketing) with Carey v. Brown, 447 U.S. 455
(1980) (invalidating a ban on residential picketing that exempted labor picketing). [n5] [p387]
R.A.V. v. City of St. Paul
6
The concurrences describe us as setting forth a new First Amendment principle that prohibition
of constitutionally proscribable speech cannot be “underinclusiv[e],” post at 402 (WHITE, J.,
concurring in judgment) — a First Amendment “absolutism” whereby “within a particular
‘proscribable’ category of expression, . . . a government must either proscribe all speech or no
speech at all,” post at 419 (STEVENS, J., concurring in judgment). That easy target is of the
concurrences’ own invention. In our view, the First 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. See, e.g., Sable Communications, 492 U.S. at 124-126 (upholding 47 U.S.C.
§ 223(b)(1) (1988), which prohibits obscene telephone communications).
Even the prohibition against content discrimination that we assert the First 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
“rais[es] the specter that the Government may effectively drive certain ideas or viewpoints from
the marketplace,” Simon & Schuster, 502 U.S. at 116; Leathers v. Medlock, 499 U.S. 439, 448
(1991); FCC v. League of Women Voters of California, 468 U.S. 364, 383-384 (1984);
Consolidated Edison Co., 447 U.S. at 536; Police Dept. of Chicago v. Mosley, 408 U.S. [p388]
at 95-98. 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 First 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. See Kucharek v. Hanaway, 902 F.2d 513, 517 (CA7
1990), cert. denied, 498 U.S. 1041 (1991). 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 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.
See Watts v. United States, 394 U.S. 705, 707 (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, post at 421-422), a State may choose to regulate price advertising in one
industry, but not in others, because the risk of fraud (one of the characteristics of commercial
speech that justifies depriving it of full First Amendment protection, see Virginia [p389]
Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-7726 (1976)) is in
R.A.V. v. City of St. Paul
7
its view greater there. Cf. Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (state
regulation of airline advertising); Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) (state
regulation of lawyer advertising). But a State may not prohibit only that commercial advertising
that depicts men in a demeaning fashion, see, e.g., L.A. Times, Aug. 8, 1989, section 4, p. 6, col.
1.
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., 475 U.S. 41, 48 (1986) (quoting, with emphasis,
Virginia Pharmacy Bd., supra, 425 U.S. at 771); see also Young v. American Mini Theatres, Inc.,
427 U.S. 50, 71, n. 34 (1976) (plurality); id. at 80-82 (Powell, J., concurring); Barnes, 501 U.S.
at 586 (SOUTER, J., concurring in judgment). 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. See id. at 571 (plurality opinion);
id. at 577 (SCALIA, J., concurring in judgment); id. at 582 (SOUTER, J., concurring in
judgment); FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411, 425-432 (1990); O’Brien,
391 U.S. at 376-377. 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, 42 U.S.C. § 2000e-2; 29 CFR § 1604.11 (1991). See also 18 [p390]
U.S.C. § 242; 42 U.S.C. §§ 1981 1982. 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.'”
Metromedia, Inc. v. San Diego, 453 U.S. 490, 555 (1981) (STEVENS, J., dissenting in part)
(citation omitted). 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 First
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. See Posadas de Puerto Rico, 478 U.S. at 342-343. [n6]
[p391]
II
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
R.A.V. v. City of St. Paul
8
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. See Simon & Schuster, 502 U.S. at 116; Arkansas Writers’
Project, Inc. v. Ragland, 481 U.S. 221, 229-230 (1987).
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 that speaker’s opponents. One
could hold up a sign saying, for example, that all “anti-Catholic [p392] 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 Queensbury 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.” 464
N.W.2d at 508, 511. 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,” ibid., 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.”
Brief for Respondent 25. The point of the First Amendment is that majority preferences must be
expressed in some fashion other than silencing speech on the basis of its content.
Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance
is directed at expression of group hatred, JUSTICE STEVENS suggests that this “fundamentally
misreads” the ordinance. Post at 433. It is directed, he claims, not to speech of a particular
content, but to particular “injur[ies]” that are “qualitatively different” from other injuries. Post at
424. This is word-play. 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 [p393] nothing other than the fact that it is caused by a distinctive idea, conveyed by a
distinctive message. The First Amendment cannot be evaded that easily. It is obvious that the
symbols which will arouse “anger, alarm or resentment in others on the basis of race, color,
R.A.V. v. City of St. Paul
9
creed, religion or gender” are those symbols that communicate a message of hostility based on
one of these characteristics. St. Paul concedes in its brief 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.” Brief for Respondent 8. Indeed, St. Paul argued in the Juvenile
Court that
[t]he burning of a cross does express a message, and it is, in fact, the content of that message
which the St. Paul Ordinance attempts to legislate.
Memorandum from the Ramsey County Attorney to the Honorable Charles A. Flinn, Jr., dated
July 13, 1990, in In re Welfare of R.A.V., No. 89-D-1231 (Ramsey Cty.Juvenile Ct.), p. 1,
reprinted in App. to Brief for Petitioner C-1.
The content-based discrimination reflected in the St. Paul ordinance comes within neither any of
the specific exceptions to the First Amendment prohibition we discussed earlier, nor within 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, 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 [p394] 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., 475 U.S. 41 (1986). 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.
Brief for Respondent 28. 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, 485 U.S. 312
(1988), “[l]isteners’ reactions to speech are not the type of ‘secondary effects’ we referred to in
Renton.” Id. at 321. “The emotive impact of speech on its audience is not a ‘secondary effect.'”
Ibid. See also id. at 334 (opinion of Brennan, J.). [n7] [p395]
R.A.V. v. City of St. Paul
10
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, Leathers v. Medlock, 499 U.S. at 448 (1991),
requires that that weapon be employed only where it is “necessary to serve the asserted
[compelling] interest,” Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality) (emphasis
added); Perry Education Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983). The
existence of adequate content-neutral alternatives thus “undercut[s] significantly” any defense of
such a statute, Boos v. Barry, supra, 485 U.S. at 329, casting considerable doubt on the
government’s protestations that “the asserted justification is in fact an accurate description of the
purpose and effect of the law,” Burson, supra, at 213 (KENNEDY, J., concurring). See Boos,
supra, 485 U.S. at 324-329; cf. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of
Revenue, 460 U.S. 575, 586-587 (1983). The dispositive question in this case, therefore, is
whether content discrimination is reasonably necessary to achieve St. Paul’s [p396] 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. [n8] That is precisely what the First 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 First 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. [p397]
1.
R.A.V. v. City of St. Paul
11
The conduct might have violated Minnesota statutes carrying significant penalties. See, e.g.,
Minn.Stat. § 609.713(1) (1987) (providing for up to five years in prison for terroristic threats);
§ 609.563 (arson) (providing for up to five years and a $10,000 fine, depending on the value of
the property intended to be damaged); § 609.595 (Supp.1992) (criminal damage to property)
(providing for up to one year and a $3,000 fine, depending upon the extent of the damage to the
property).
2.
Petitioner has also been charged, in Count I of the delinquency petition, with a violation of
Minn.Stat. § 609.2231(4) (Supp.1990) (racially motivated assaults). Petitioner did not challenge
this count.
3.
Contrary to JUSTICE WHITE’s suggestion, post at 397-398, petitioner’s claim is “fairly
included” within the questions presented in the petition for certiorari, see this Court’s Rule
14.1(a). It was clear from the petition and from petitioner’s other filings in this Court (and in the
courts below) that his assertion that the St. Paul ordinance “violat[es] overbreadth . . . principles
of the First Amendment,” Pet. for Cert. i, was not just a technical “overbreadth” claim — i.e., a
claim that the ordinance violated the rights of too many third parties — but included the
contention that the ordinance was “overbroad” in the sense of restricting more speech than the
Constitution permits, even in its application to him, because it is content-based. An important
component of petitioner’s argument is, and has been all along, that narrowly construing the
ordinance to cover only “fighting words” cannot cure this fundamental defect. Id. at 12, 14, 1516. In his briefs in this Court, petitioner argued that a narrowing construction was ineffective
because (1) its boundaries were vague, Brief for Petitioner 26, and because (2) denominating
particular expression a “fighting word” because of the impact of its ideological content upon the
audience is inconsistent with the First Amendment, Reply Brief for Petitioner 5; id. at 13 (“[The
ordinance] is overbroad, viewpoint-discriminatory and vague as ‘narrowly construed'”)
(emphasis added). At oral argument, counsel for Petitioner reiterated this second point:
It is . . . one of my positions that, in [punishing only some fighting words and not others], even
though it is a subcategory, technically, of unprotected conduct, [the ordinance] still is picking out
an opinion, a disfavored message, and making that clear through the State.
Tr. of Oral Arg. 8. In resting our judgment upon this contention, we have not departed from our
criteria of what is “fairly included” within the petition. See Arkansas Electric Cooperative Corp.
v. Arkansas Pub. Serv. Comm’n, 461 U.S. 375, 382, n. 6 (1983); Brown v. Socialist Workers ’74
Campaign Comm., 459 U.S. 87, 94, n. 9 (1982); Eddings v. Oklahoma, 455 U.S. 104, 113, n. 9
(1982); see generally R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 361 (6th ed.
1986).
R.A.V. v. City of St. Paul
12
4.
JUSTICE WHITE concedes that a city council cannot prohibit only those legally obscene works
that contain criticism of the city government, post at 406, but asserts that to be the consequence,
not of the First Amendment, but of the Equal Protection Clause. Such content-based
discrimination would not, he asserts, “be rationally related to a legitimate government interest,”
ibid. But of course the only reason that government interest is not a “legitimate” one is that it
violates the First Amendment. This Court itself has occasionally fused the First Amendment into
the Equal Protection Clause in this fashion, but at least with the acknowledgment (which
JUSTICE WHITE cannot afford to make) that the First Amendment underlies its analysis. See
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (ordinance prohibiting only nonlabor
picketing violated the Equal Protection Clause because there was no “appropriate governmental
interest” supporting the distinction, inasmuch as “the First Amendment means that government
has no power to restrict expression because of its message, its ideas, its subject matter, or its
content”); Carey v. Brown, 447 U.S. 455 (1980). See generally Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 124 (1991) (KENNEDY, J.,
concurring in judgment).
JUSTICE STEVENS seeks to avoid the point by dismissing the notion of obscene antigovernment speech as “fantastical,” post at 505 U.S. 418″]418, apparently believing that any
reference to politics prevents a finding of obscenity. Unfortunately for the purveyors of
obscenity, that is obviously false. A shockingly hard core pornographic movie that contains a
model sporting a political tattoo can be found, “taken as a whole, [to] lac[k] serious literary,
artistic, political, or scientific value,” 418, apparently believing that any reference to politics
prevents a finding of obscenity. Unfortunately for the purveyors of obscenity, that is obviously
false. A shockingly hard core pornographic movie that contains a model sporting a political
tattoo can be found, “taken as a whole, [to] lac[k] serious literary, artistic, political, or scientific
value,” Miller v. California, 413 U.S. 15, 24 (1973) (emphasis added). Anyway, it is easy enough
to come up with other illustrations of a content-based restriction upon “unprotected speech” that
is obviously invalid: the antigovernment libel illustration mentioned earlier, for one. See supra at
384. And of course the concept of racist fighting words is, unfortunately, anything but a “highly
speculative hypothetica[l],” post at 419.
5.
Although JUSTICE WHITE asserts that our analysis disregards “established principles of First
Amendment law,” post at 415, he cites not a single case (and we are aware of none) that even
involved, much less considered and resolved, the issue of content discrimination through
regulation of “unprotected” speech — though we plainly recognized that as an issue in Ferber. It
is, of course, contrary to all traditions of our jurisprudence to consider the law on this point
conclusively resolved by broad language in cases where the issue was not presented or even
envisioned.
R.A.V. v. City of St. Paul
13
6.
JUSTICE STEVENS cites a string of opinions as supporting his assertion that “selective
regulation of speech based on content” is not presumptively invalid. Post at 421-422. Analysis
reveals, however, that they do not support it. To begin with, three of them did not command a
majority of the Court, Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-73 (1976)
(plurality); FCC v. Pacifica Foundation, 438 U.S. 726, 744-748 (1978) (plurality); Lehman v.
City of Shaker Heights, 418 U.S. 298 (1974) (plurality), and two others did not even discuss the
First Amendment, Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992); Jacob Siegel Co.
v. FTC, 327 U.S. 608 (1946). In any event, all that their contents establish is what we readily
concede: that presumptive invalidity does not mean invariable invalidity, leaving room for such
exceptions as reasonable and viewpoint-neutral content-based discrimination in nonpublic
forums, see Lehman, supra, 418 U.S. at 301-304; see also Cornelius v. NAACP Legal Defense &
Educational Fund, Inc., 473 U.S. 788, 806 (1985), or with respect to certain speech by
government employees, see Broadrick v. Oklahoma, 413 U.S. 601 (1973); see also CSC v. Letter
Carriers, 413 U.S. 548, 564-567 (1973).
7.
St. Paul has not argued in this case that the ordinance merely regulates that subclass of fighting
words which is most likely to provoke a violent response. But even if one assumes (as appears
unlikely) that the categories selected may be so described, that would not justify selective
regulation under a “secondary effects” theory. The only reason why such expressive conduct
would be especially correlated with violence is that it conveys a particularly odious message,
because the “chain of causation” thus necessarily “run[s] through the persuasive effect of the
expressive component” of the conduct, Barnes v. Glen Theatre, 501 U.S. 560, 586 (1991)
(SOUTER, J., concurring in judgment), it is clear that the St. Paul ordinance regulates on the
basis of the “primary” effect of the speech — i.e., its persuasive (or repellant) force.
8.
A plurality of the Court reached a different conclusion with regard to the Tennessee antielectioneering statute considered earlier this Term in Burson v. Freeman, 504 U.S. 191 (1992). In
light of the “logical connection” between electioneering and the State’s compelling interest in
preventing voter intimidation and election fraud — an inherent connection borne out by a “long
history” and a “widespread and time-tested consensus,” id. at 206, 208 — the plurality concluded
that it was faced with one of those “rare case[s]” in which the use of a facially content-based
restriction was justified by interests unrelated to the suppression of ideas, id. at 211; see also id.
at 213 (KENNEDY, J., concurring). JUSTICE WHITE and JUSTICE STEVENS are therefore
quite mistaken when they seek to convert the Burson plurality’s passing comment that “[t]he First
Amendment does not require States to regulate for problems that do not exist,” id. at 207, into
endorsement of the revolutionary proposition that the suppression of particular ideas can be
R.A.V. v. City of St. Paul
14
justified when only those ideas have been a source of trouble in the past. Post at 405 (WHITE,
J.); post at 434 (STEVENS, J.).
TOP
Concurrence
WHITE, J., Concurring Opinion
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 First 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 First Amendment.
See Part II, infra. Instead, “find[ing] it unnecessary” to consider the questions upon which we
granted review, [n1] ante at 381, the [p398] 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, 504
U.S. 191 (1992), which was joined by two of the five Justices in the majority in the present case.
This Court ordinarily is not so eager to abandon its precedents. Twice within the past month, the
Court has declined to overturn longstanding but controversial decisions on questions of
constitutional law. See Allied Signal, Inc. v. Director, Division of Taxation, 504 U.S. 768
(1992); Quill Corp. v. North Dakota, 504 U.S. 298 (1992). In each case, we had the benefit of
full briefing on the critical issue, so that the parties and amici had the opportunity to apprise us of
the impact of a change in the law. And in each case, the Court declined to abandon its
precedents, invoking the principle of stare decisis. Allied Signal, Inc., supra, at 783-786; Quill
Corp., supra, at 317-318.
But in the present case, the majority casts aside long-established First Amendment doctrine
without the benefit of briefing and adopts an untried theory. This is hardly a judicious way of
proceeding, and the Court’s reasoning in reaching its result is transparently wrong. [p399]
I
A
This Court’s decisions have plainly stated that expression falling within certain limited categories
so lacks the values the First Amendment was designed to protect that the Constitution affords no
R.A.V. v. City of St. Paul
15
protection to that expression. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), made the
point in the clearest possible terms:
There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. . . . It has
been well observed that such utterances are no essential part of any exposition of ideas, and 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.
Id. at 571-572. See also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,
504 (1984) (citing Chaplinsky).
Thus, as the majority concedes, see ante at 505 U.S. 383″]383-384, this 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 theatre
may not claim the protection of the First Amendment. 383-384, this 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 theatre may not claim
the protection of the First Amendment. Schenck v. United States, 249 U.S. 47″] 249 U.S. 47, 52
(1919). The Court has concluded that neither child pornography nor obscenity is protected by the
First Amendment. 249 U.S. 47, 52 (1919). The Court has concluded that neither child
pornography nor obscenity is protected by the First Amendment. New York v. Ferber, 458 U.S.
747″] 458 U.S. 747, 764 (1982); 458 U.S. 747, 764 (1982); Miller v. California, 413 U.S. 15″]
413 U.S. 15, 20 (1973); 413 U.S. 15, 20 (1973); Roth v. United States, 354 U.S. 476, 484-485
(1957). 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.
Ferber, supra, 458 U.S. at 763 (citations omitted). [p400]
All of these categories are content-based. But the Court has held that First Amendment does not
apply to them, because their expressive content is worthless or of de minimis value to society.
Chaplinsky, supra, 315 U.S. at 571-572. 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. Ferber, supra, 458 U.S. at 458 U.S. 763″]763-764; 763-764; Bigelow v. Virginia, 421
U.S. 809, 819 (1975). 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. [n2]
Today, however, the Court announces that earlier Courts did not mean their repeated statements
that certain categories of expression are “not within the area of constitutionally protected
R.A.V. v. City of St. Paul
16
speech.” Roth, supra, 354 U.S. at 483. See ante at 383, citing Beauharnais v. Illinois, 343 U.S.
250, 266 (1952); Chaplinsky, supra, 315 U.S. at 571-572; Bose Corp., supra, 466 U.S. at 504;
Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 124 (1989). The present Court
submits that such clear statements “must be taken in context,” and are not “literally true.” Ante at
383.
To the contrary, those statements meant precisely what they said: the categorical approach is a
firmly entrenched part of our First Amendment jurisprudence. Indeed, the Court in Roth
reviewed the guarantees of freedom of expression in effect at the time of the ratification of the
Constitution and concluded,
[i]n light of this history, it is apparent that the unconditional phrasing of the First Amendment
was [p401] not intended to protect every utterance.
354 U.S. at 482-483.
In its decision today, the Court points to “[n]othing . . . in this Court’s precedents warrant[ing]
disregard of this longstanding tradition.” Burson, 504 U.S. at 216 (SCALIA, J., concurring in
judgment); Allied Signal, Inc., supra, at 783. Nevertheless, the majority holds that the First
Amendment protects those narrow categories of expression long held to be undeserving of First
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 contentbased distinctions violate the First Amendment because “the government may not regulate use
based on hostility — or favoritism — towards the underlying message expressed.” Ante at 386.
Should the government want to criminalize certain fighting words, the Court now requires it to
criminalize all fighting words.
To borrow a phrase,
Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with
common sense, and with our jurisprudence as well.
Ante at 384. It is inconsistent to hold that the government may proscribe an entire category of
speech because the content of that speech is evil, Ferber, supra, 458 U.S. at 763-764, but that the
government may not treat a subset of that category differently without violating the First
Amendment; the content of the subset is, by definition, worthless and undeserving of
constitutional protection.
The majority’s observation that fighting words are “quite expressive indeed,” ante at 384, is no
answer. 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, 315 U.S. at 572. 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. See ante at 387. [p402]
R.A.V. v. City of St. Paul
17
Therefore, the Court’s insistence on inventing its brand of First Amendment underinclusiveness
puzzles me. [n3] The overbreadth doctrine has the redeeming virtue of attempting to avoid the
chilling of protected expression, Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); Osborne v.
Ohio, 495 U.S. 103, 112, n. 8 (1990); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503
(1985); Ferber, supra, 458 U.S. at 772, 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 First Amendment terms, see Ferber, supra, at 763-764;
Chaplinsky, supra, 315 U.S. at 571-572, until the city of St. Paul cures the underbreadth by
adding to its ordinance a catch-all phrase such as “and all other fighting words that may
constitutionally be subject to this ordinance.”
Any contribution of this holding to First 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 First Amendment. [n4] Indeed, by characterizing fighting words as a form of “debate,” ante at
392, the majority legitimates hate speech as a form of public discussion. [p403]
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 First 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. See Burson v. Freeman, supra, at 196; Eu v. San Francisco County
Democratic Central Comm., 489 U.S. 214, 222-223 (1989).
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 First 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.'” Simon
& Schuster, Inc. v. New York Crime Victims Board, 502 U.S. 105, 118 (1991) (quoting
Arkansas Writers’ Project, Inc., v. Ragland, 481 U.S. 221, 231 (1987)). St. Paul has urged that its
ordinance, in the words of the majority, “helps to ensure the basic human rights of members of
groups that have historically been subjected to discrimination. . . .” Ante at 395. The Court
expressly concedes that this interest is compelling, and is promoted by the ordinance. Ibid.
Nevertheless, the Court treats strict scrutiny analysis as irrelevant to the constitutionality of the
legislation:
The dispositive question . . . is whether content discrimination is reasonably necessary in order to
achieve St. Paul’s compelling interests; it plainly is not. An ordinance not [p404] limited to the
favored topics would have precisely the same beneficial effect.
R.A.V. v. City of St. Paul
18
Ibid. 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 First Amendment analysis. [n5]
This abandonment of the doctrine is inexplicable in light of our decision in Burson v. Freeman,
supra, which was handed down just a month ago. [n6] In Burson, seven of the eight participating
members of the Court agreed that the strict scrutiny standard applied in a case involving a First
Amendment challenge to a content-based statute. See id. at 198 (plurality opinion); id. at 217
(STEVENS, J., [p405] dissenting). [n7] The statute at issue prohibited the solicitation of votes and
the display or distribution of campaign materials within 100 feet of the entrance to a polling
place. The plurality concluded that the legislation survived strict scrutiny because the State had
asserted a compelling interest in regulating electioneering near polling places, and because the
statute at issue was narrowly tailored to accomplish that goal. Id. at 208-210.
Significantly, the statute in Burson did not proscribe all speech near polling places; it restricted
only political speech. Id. at 197. The Burson plurality, which included THE CHIEF JUSTICE
and JUSTICE KENNEDY, concluded that the distinction between types of speech required
application of strict scrutiny, but it squarely rejected the proposition that the legislation failed
First Amendment review because it could have been drafted in broader, content-neutral terms:
States adopt laws to address the problems that confront them. The First Amendment does not
require States to regulate for problems that do not exist.
Id. at 207 (emphasis added). This reasoning is in direct conflict with the majority’s analysis in the
present case, which leaves two options to lawmakers attempting to regulate expressions of
violence: (1) enact a sweeping prohibition on an entire class of speech (thereby requiring
“regulat[ion] for problems that do not exist”); or (2) not legislate at all.
Had the analysis adopted by the majority in the present case been applied in Burson, the
challenged election law would have failed constitutional review, for its content-based distinction
between political and nonpolitical speech could not have been characterized as “reasonably
necessary,” ante [p406] at 395, to achieve the State’s interest in regulating polling place
premises. [n8]
As with its rejection of the Court’s categorical analysis, the majority offers no reasoned basis for
discarding our firmly established strict scrutiny analysis at this time. 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. Ante at 384. The majority is misguided.
Although the First 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
R.A.V. v. City of St. Paul
19
that contain criticism of the city government,” ibid., would unquestionably fail rational basis
review. [n9] [p407]
Turning to the St. Paul ordinance and assuming arguendo, as the majority does, that the
ordinance is not constitutionally overbroad (but see Part II, infra), there is no question that it
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. Indeed,
as the majority concedes, the interest is compelling. Ante at 395.
C
The Court has patched up its argument with an apparently nonexhaustive list of ad hoc
exceptions, in what can be viewed either as an attempt to confine the effects of its decision to the
facts of this case, see post at 415 (BLACKMUN, J., concurring in judgment), or as an effort to
anticipate some of the questions that will arise from its radical revision of First Amendment law.
For instance, if the majority were to give general application to the rule on which it decides this
case, today’s decision would call into question the constitutionality of the statute making it illegal
to threaten the life of the President. 18 U.S.C. § 871. See Watts v. United States, 394 U.S. 705
(1969) (per curiam). Surely, this statute, by singling out certain threats, incorporates a contentbased distinction; it indicates that the Government especially disfavors threats against the
President, as opposed to threats against all others. [n10] [p408] See ante at 391. But because the
Government could prohibit all threats, and not just those directed against the President, under the
Court’s theory, the compelling reasons justifying the enactment of special legislation to safeguard
the President would be irrelevant, and the statute would fail First Amendment review.
To save the statute, the majority has engrafted the following exception onto its newly announced
First 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.” Ante at 388. Thus, the argument goes, the statute making it illegal to threaten the
life of the President is constitutional,
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.
Ibid.
The exception swallows the majority’s rule. Certainly, it should apply to the St. Paul ordinance,
since
R.A.V. v. City of St. Paul
20
the reasons why [fighting words] are outside the First 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. Ante at 386, 393. 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, Chaplinsky, supra, 315 U.S. at 572, a message that is at its ugliest when
directed against groups [p409] 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 . . . ,” ante at 389, which the majority treats as encompassing
instances in which “words can . . . violate laws directed not against speech, but against conduct. .
. .” Ibid. [n11] Again, there is a simple explanation for the Court’s eagerness to craft an exception
to its new First 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,” 42 U.S.C. § 2000e-2(a)(1), 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” which creates “an
intimidating, hostile, or offensive working environment.” 29 CFR § 1604.11(a) (1991). The
regulation does not prohibit workplace harassment generally; it focuses on what the majority
would characterize as the “disfavored topi[c]” of sexual harassment. Ante at 391. 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.” Ibid. Under
the broad principle the Court uses to decide the present case, [p410] hostile work environment
claims based on sexual harassment should fail First 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 First 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.
Ante at 389. 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, Meritor Savings Bank v. Vinson, 477 U.S. 57″] 477 U.S. 57, 65 (1986),
R.A.V. v. City of St. Paul
21
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. Ante at 394.
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. 477 U.S. 57, 65 (1986), 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. Ante at 394. 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. United States v. O’Brien, 391 U.S. 367, 376 (1968). If the relationship between the
broader statute and specific regulation is sufficient to bring the Title VII regulation within
O’Brien, then all St. Paul need do to bring its ordinance within this exception is to add some
prefatory language concerning discrimination generally.
As 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.” Ante at
390. As I have demonstrated, [p411] this case does not concern the official suppression of ideas.
See supra at 401. The majority discards this notion out-of-hand. Ante at 395.
As I see it, the Court’s theory does not work, and will do nothing more than confuse the law. Its
selection of this case to rewrite First Amendment law is particularly inexplicable, because the
whole problem could have been avoided by deciding this case under settled First Amendment
principles.
II
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.
We have emphasized time and again that overbreadth doctrine is an exception to the established
principle that
a person to whom a statute may constitutionally be applied will not be heard to challenge that
statute on the ground that it may conceivably be applied unconstitutionally to others, in other
situations not before the Court.
Broadrick v. Oklahoma, 413 U.S. at 610; Brockett v. Spokane Arcades, Inc., 472 U.S. at 503504. A defendant being prosecuted for speech or expressive conduct may challenge the law on its
face if it reaches protected expression, even when that person’s activities are not protected by the
First Amendment. This is because
the possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that protected speech of others may be muted.
R.A.V. v. City of St. Paul
22
Broadrick, supra, 413 U.S. at 612; Osborne v. Ohio, 495 U.S. at 112, n. 8; New York v. Ferber,
supra, 458 U.S. at 768-769; Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634
(1980); Gooding v. Wilson, 405 U.S. 518, 521 (1972).
However, we have consistently held that, because overbreadth analysis is “strong medicine,” it
may be invoked to strike an entire statute only when the overbreadth of the statute is not only
“real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,”
Broadrick, [p412] 413 U.S. at 413 U.S. 615″]615, and when the statute is not susceptible to
limitation or partial invalidation. Id. at 613; 615, and when the statute is not susceptible to
limitation or partial invalidation. Id. at 613; Board of Airport Comm’rs of Los Angeles v. Jews
for Jesus, Inc., 482 U.S. 569, 574 (1987).
When a federal court is dealing with a federal statute challenged as overbroad, it should . . .
construe the statute to avoid constitutional problems, if the statute is subject to a limiting
construction.
Ferber, 458 U.S. at 769, n. 24. Of course, “[a] state court is also free to deal with a state statute in
the same way.” Ibid. See, e.g., Osborne, 495 U.S. at 113-114.
Petitioner contends that the St. Paul ordinance is not susceptible to a narrowing construction, and
that the ordinance therefore should be considered as written, and not as construed by the
Minnesota Supreme Court. Petitioner is wrong. Where a state court has interpreted a provision of
state law, we cannot ignore that interpretation, even if it is not one that we would have reached if
we were construing the statute in the first instance. Ibid; Kolender v. Lawson, 461 U.S. 352, 355
(1983); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, n. 5 (1982). [n12]
Of course, the mere presence of a state court interpretation does not insulate a statute from
overbreadth review. We have stricken legislation when the construction supplied by the state
court failed to cure the overbreadth problem. [p413] See, e.g., Lewis v. City of New Orleans,
415 U.S. 130, 132-133 (1974); Gooding, supra, 405 U.S. at 524-525. But in such cases, we have
looked to the statute as construed in determining whether it contravened the First Amendment.
Here, the Minnesota Supreme Court has provided an authoritative construction of the St. Paul
antibias ordinance. Consideration of petitioner’s overbreadth claim must be based on that
interpretation.
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 First
Amendment.
In attempting to narrow the scope of the St. Paul antibias ordinance, the Minnesota Supreme
Court relied upon two of the categories of speech and expressive conduct that fall outside the
First Amendment’s protective sphere: words that incite “imminent lawless action,” Brandenburg
v. Ohio, 395 U.S. 444, 449 (1969), and “fighting” words, Chaplinsky v. New Hampshire, 315
U.S. at 571-572. The Minnesota Supreme Court erred in its application of the Chaplinsky
R.A.V. v. City of St. Paul
23
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.” Id. at 572. However, the Minnesota court
was far from clear in identifying the “injur[ies]” inflicted by the expression that St. Paul sought
to regulate. Indeed, the Minnesota court emphasized (tracking the language of the ordinance) that
the ordinance censors only those displays that one knows or should know will create anger,
alarm or resentment based on racial, ethnic, gender or religious bias.
In re Welfare of R.A.V., 464 N.W.2d 507, 510 (1991). I [p414] therefore understand the court to
have 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.
See United States v. Eichman, 496 U.S. 310, 319 (1990); Texas v. Johnson, 491 U.S. 397, 409,
414 (1989); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56 (1988); FCC v. Pacifica
Foundation, 438 U.S. 726, 745 (1978); Hess v. Indiana, 414 U.S. 105, 107-108 (1973); Cohen v.
California, 403 U.S. 15, 20 (1971); Street v. New York, 394 U.S. 576, 592 (1969); Terminiello v.
Chicago, 337 U.S. 1 (1949).
In the First Amendment context,
[c]riminal statutes must be scrutinized with particular care; those that make unlawful a
substantial amount of constitutionally protected conduct may be held facially invalid even if they
also have legitimate application.
Houston v. Hill, 482 U.S. 451, 459 (1987) (citation omitted). The St. Paul antibias ordinance is
such a law. 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
First Amendment. Cf. Lewis, supra, 415 U.S. at 132. [n13] The ordinance is therefore fatally
overbroad and invalid on its face. [p415]
III
Today, the Court has disregarded two established principles of First Amendment law without
providing a coherent replacement theory. Its decision is an arid, doctrinaire interpretation, driven
by the frequently irresistible impulse of judges to tinker with the First Amendment. The decision
is mischievous at best, and will surely confuse the lower courts. I join the judgment, but not the
folly of the opinion.
R.A.V. v. City of St. Paul
24
1.
The Court granted certiorari to review the following questions:
1. May a local government enact a content-based, ‘hate-crime’ ordinance prohibiting the display
of symbols, including a Nazi swastika or a burning cross, on public or private property, which
one knows or has reason to know arouses anger, alarm, or resentment in others on the basis of
race, color, creed, religion, or gender without violating overbreadth and vagueness principles of
the First Amendment to the United States Constitution?
2. Can the constitutionality of such a vague and substantially overbroad content-based restraint
of expression be saved by a limiting construction, like that used to save the vague and overbroad
content-neutral laws, restricting its application to “fighting words” or “imminent lawless action?”
Pet. for Cert. i.
It has long been the rule of this Court that “[o]nly the questions set forth in the petition, or fairly
included therein, will be considered by the Court.” This Court’s Rule 14.1(a). This Rule has
served to focus the issues presented for review. But the majority reads the Rule so expansively
that any First Amendment theory would appear to be “fairly included” within the questions
quoted above.
Contrary to the impression the majority attempts to create through its selective quotation of
petitioner’s briefs, see ante at 381-382, n. 3, petitioner did not present to this Court or the
Minnesota Supreme Court anything approximating the novel theory the majority adopts today.
Most certainly petitioner did not “reiterat[e]” such a claim at argument; he responded to a
question from the bench. Tr. of Oral Arg. 8. Previously, this Court has shown the restraint to
refrain from deciding cases on the basis of its own theories when they have not been pressed or
passed upon by a state court of last resort. See, e.g., Illinois v. Gates, 462 U.S. 213, 217-224
(1983).
Given this threshold issue, it is my view that the Court lacks jurisdiction to decide the case on the
majority rationale. Cf. Arkansas Elec. Cooperative Corp. v. Arkansas Public Serv. Comm’n, 461
U.S. 375, 382, n. 6 (1983). Certainly the preliminary jurisdictional and prudential concerns are
sufficiently weighty that we would never have granted certiorari, had petitioner sought review of
a question based on the majority’s decisional theory.
2.
In each of these areas, the limits of the unprotected category, as well as the unprotected character
of particular communications, have been determined by the judicial evaluation of special facts
that have been deemed to have constitutional significance.
R.A.V. v. City of St. Paul
25
Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 504-505 (1948).
3.
The assortment of exceptions the Court attaches to its rule belies the majority’s claim, see ante at
387, that its new theory is truly concerned with content discrimination. See Part I(C), infra
(discussing the exceptions).
4.
This does not suggest, of course, that cross-burning is always unprotected. Burning a cross at a
political rally would almost certainly be protected expression. Cf. Brandenburg v. Ohio, 395 U.S.
444″] 395 U.S. 444, 445 (1969). But in such a context, the cross-burning could not be
characterized as a “direct personal insult or an invitation to exchange fisticuffs,” 395 U.S. 444,
445 (1969). But in such a context, the cross-burning could not be characterized as a “direct
personal insult or an invitation to exchange fisticuffs,” Texas v. Johnson, 491 U.S. 397, 409
(1989), to which the fighting words doctrine, see Part II, infra, applies.
5.
The majority relies on Boos v. Barry, 485 U.S. 312 (1988), in arguing that the availability of
content-neutral alternatives “‘undercut[s] significantly'” a claim that content-based legislation is
“‘necessary to serve the asserted [compelling] interest.'” Ante at 395 (quoting Boos, supra, at
329, and Burson v. Freeman, 504 U.S. 191, 199 (plurality)). Boos does not support the majority’s
analysis. In Boos, Congress already had decided that the challenged legislation was not
necessary, and the Court pointedly deferred to this choice. 485 U.S. at 329. St. Paul lawmakers
have made no such legislative choice.
Moreover, in Boos, the Court held that the challenged statute was not narrowly tailored, because
a less restrictive alternative was available. Ibid. But the Court’s analysis today turns Boos insideout by substituting the majority’s policy judgment that a more restrictive alternative could
adequately serve the compelling need identified by St. Paul lawmakers. The result would be: (a)
a statute that was not tailored to fit the need identified by the government; and (b) a greater
restriction on fighting words, even though the Court clearly believes that fighting words have
protected expressive content. Ante at 384-385.
6.
Earlier this Term, seven of the eight participating members of the Court agreed that strict
scrutiny analysis applied in Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims
Bd., 502 U.S. 105 (1991), in which we struck down New York’s “Son of Sam” law, which
R.A.V. v. City of St. Paul
26
required “that an accused or convicted criminal’s income from works describing his crime be
deposited in an escrow account.” Id. at 108.
7.
The Burson dissenters did not complain that the plurality erred in applying strict scrutiny; they
objected that the plurality was not sufficiently rigorous in its review. 504 U.S. at 225-226
(STEVENS, J., dissenting).
8.
JUSTICE SCALIA concurred in the judgment in Burson, reasoning that the statute, “though
content-based, is constitutional [as] a reasonable, viewpoint-neutral regulation of a nonpublic
forum.” Id. at 214. However, nothing in his reasoning in the present case suggests that a contentbased ban on fighting words would be constitutional were that ban limited to nonpublic fora.
Taken together, the two opinions suggest that, in some settings, political speech, to which “the
First Amendment ‘has its fullest and most urgent application,'” is entitled to less constitutional
protection than fighting words. Eu v. San Francisco County Democratic Central Comm., 489
U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
9.
The majority is mistaken in stating that a ban on obscene works critical of government would fail
equal protection review only because the ban would violate the First Amendment. Ante at 505
U.S. 384″]384-385, n. 2. While decisions such as 384-385, n. 2. While decisions such as Police
Dept. of Chicago v. Mosley, 408 U.S. 92 (1972), recognize that First Amendment principles may
be relevant to an equal protection claim challenging distinctions that impact on protected
expression, id. at 95-99, there is no basis for linking First and Fourteenth Amendment analysis in
a case involving unprotected expression. Certainly, one need not resort to First Amendment
principles to conclude that the sort of improbable legislation the majority hypothesizes is based
on senseless distinctions.
10.
Indeed, such a law is content-based in and of itself, because it distinguishes between threatening
and nonthreatening speech.
11.
R.A.V. v. City of St. Paul
27
The consequences of the majority’s conflation of the rarely-used secondary effects standard and
the O’Brien test for conduct incorporating “speech” and “nonspeech” elements, see generally
United States v. O’Brien, 391 U.S. 367, 376-377 (1968), present another question that I fear will
haunt us and the lower courts in the aftermath of the majority’s opinion.
12.
Petitioner can derive no support from our statement in Virginia v. American Bookseller’s Assn.,
484 U.S. 383, 397 (1988), that
the statute must be “readily susceptible” to the limitation; we will not rewrite a state law to
conform it to constitutional requirements.
In American Bookseller’s, no state court had construed the language in dispute. In that instance,
we certified a question to the state court so that it would have an opportunity to provide a
narrowing interpretation. Ibid. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975),
the other case upon which petitioner principally relies, we observed not only that the ordinance at
issue was not “by its plain terms . . . easily susceptible of a narrowing construction,” but that the
state courts had made no effort to restrict the scope of the statute when it was challenged on
overbreadth grounds.
13.
Although the First Amendment protects offensive speech, Johnson v. Texas, 491 U.S. at 414, it
does not require us to be subjected to such expression at all times, in all settings. We have held
that such expression may be proscribed when it intrudes upon a “captive audience.” Frisby v.
Schultz, 487 U.S. 474, 484-485 (1988); FCC v. Pacifica Foundation, 438 U.S. 726, 748-749
(1978). And expression may be limited when it merges into conduct. United States v. O’Brien,
391 U.S. 367 (1968); cf. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986). However,
because of the manner in which the Minnesota Supreme Court construed the St. Paul ordinance,
those issues are not before us in this case.
TOP
Concurrence
BLACKMUN, J., Concurring Opinion
JUSTICE BLACKMUN, concurring in the judgment.
R.A.V. v. City of St. Paul
28
I regret what the Court has done in this case. The majority opinion signals one of two
possibilities: it will serve as precedent for future cases, or it will not. Either result is
disheartening.
In the first instance, by deciding that a State cannot regulate speech that causes great harm unless
it also regulates speech that does not (setting law and logic on their heads), the Court seems to
abandon the categorical approach, and inevitably to relax the level of scrutiny applicable to
content-based laws. As JUSTICE WHITE points out, this weakens the traditional protections of
speech. If all expressive activity must be accorded the same protection, that protection will be
scant. The simple reality is that the Court will never provide child pornography or cigarette
advertising the level of protection customarily granted political speech. If we are forbidden from
categorizing, as the Court has done here, we shall reduce protection across the board. It is sad
that, in its effort to reach a satisfying result in this case, the Court is willing to weaken First
Amendment protections.
In the second instance is the possibility that this case will not significantly alter First Amendment
jurisprudence, but, instead, will be regarded as an aberration — a case where the Court
manipulated doctrine to strike down an ordinance whose premise it opposed, namely, that racial
threats and verbal assaults are of greater harm than other fighting words. I fear that the Court has
been distracted from its [p416] proper mission by the temptation to decide the issue over
“politically correct speech” and “cultural diversity,” neither of which is presented here. If this is
the meaning of today’s opinion, it is perhaps even more regrettable.
I see no First 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 First Amendment.
TOP
Concurrence
STEVENS, J., Concurring Opinion
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,
R.A.V. v. City of St. Paul
29
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 First Amendment questions. Is the ordinance “overbroad” because
[p417] it prohibits too much speech? If not, is it “underbroad” because it does not prohibit
enough speech?
In answering these questions, my colleagues today wrestle with two broad principles: first, that
certain “categories of expression [including ‘fighting words’] are ‘not within the area of
constitutionally protected speech,'” ante at 400 (WHITE, J., concurring in judgment); and
second, that “[c]ontent-based regulations [of expression] are presumptively invalid.” Ante at 382
(majority opinion). Although, in past opinions, the Court has repeated both of these maxims, it
has — quite rightly — adhered to neither with the absolutism suggested by my colleagues. Thus,
while I agree that the St. Paul ordinance is unconstitutionally overbroad for the reasons stated in
Part II of JUSTICE WHITE’s opinion, I write separately to suggest how the allure of absolute
principles has skewed the analysis of both the majority and concurring opinions.
I
Fifty years ago, the Court articulated a categorical approach to First Amendment jurisprudence.
There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. . . . It has
been well observed that such utterances are no essential part of any exposition of ideas, and 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 v. New Hampshire, 315 U.S. 568, 571-572 (1942). We have, as JUSTICE WHITE
observes, often described such categories of expression as “not within the area of constitutionally
protected speech.” Roth v. United States, 354 U.S. 476, 483 (1957). [p418]
The Court today revises this categorical approach. It is not, the Court rules, that certain
“categories” of expression are “unprotected,” but rather that certain “elements” of expression are
wholly “proscribable.” To the Court, an expressive act, like a chemical compound, consists of
more than one element. Although the act may be regulated because it contains a proscribable
element, it may not be regulated on the basis of another (nonproscribable) element it also
contains. Thus, obscene antigovernment speech may be regulated because it is obscene, but not
because it is antigovernment. Ante at 384. It is this revision of the categorical approach that
allows the Court to assume that the St. Paul ordinance proscribes only fighting words, while at
the same time concluding that the ordinance is invalid because it imposes a content-based
regulation on expressive activity.
R.A.V. v. City of St. Paul
30
As an initial matter, the Court’s revision of the categorical approach seems to me something of an
adventure in a doctrinal wonderland, for the concept of “obscene antigovernment” speech is
fantastical. The category of the obscene is very narrow; to be obscene, expression must be found
by the trier of fact to
appea[l] to the prurient interest, . . . depic[t] or describ[e], in a patently offensive way, sexual
conduct, [and] taken as a whole, lac[k] serious literary, artistic, political or scientific value.
Miller v. California, 413 U.S. 15, 24 (1973) (emphasis added). “Obscene antigovernment”
speech, then, is a contradiction in terms: if expression is antigovernment, it does not “lac[k]
serious . . . political . . . value,” and cannot be obscene.
The Court attempts to bolster its argument by likening its novel analysis to that applied to
restrictions on the time, place, or manner of expression or on expressive conduct. It is true that
loud speech in favor of the Republican Party can be regulated because it is loud, but not because
it is pro-Republican; and it is true that the public burning of the American flag can be regulated
because it involves public burning, and not because it involves the flag. But these [p419]
analogies are inapposite. In each of these examples, the two elements (e.g., loudness and proRepublican orientation) can coexist; in the case of “obscene antigovernment” speech, however,
the presence of one element (“obscenity”), by definition, means the absence of the other. To my
mind, it is unwise and unsound to craft a new doctrine based on such highly speculative
hypotheticals.
I am, however, even more troubled by the second step of the Court’s analysis — namely, its
conclusion that the St. Paul ordinance is an unconstitutional content-based regulation of speech.
Drawing on broadly worded dicta, the Court establishes a near-absolute ban on content-based
regulations of expression, and holds that the First Amendment prohibits the regulation of fighting
words by subject matter. Thus, while the Court rejects the “all-or-nothing-at-all” nature of the
categorical approach, ante at 384, it promptly embraces an absolutism of its own: within a
particular “proscribable” category of expression, the Court holds, a government must either
proscribe all speech or no speech at all. [n1] This aspect of the Court’s ruling fundamentally
misunderstands the role and constitutional status of content-based regulations on speech,
conflicts with the very nature of First Amendment jurisprudence, and disrupts well-settled
principles of First Amendment law. [p420]
Although the Court has, on occasion, declared that content-based regulations of speech are
“never permitted,” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 99 (1972), such claims are
overstated. Indeed, in Mosley itself, the Court indicated that Chicago’s selective proscription of
nonlabor picketing was not per se unconstitutional, but rather could be upheld if the City
demonstrated that nonlabor picketing was “clearly more disruptive than [labor] picketing.” Id. at
100. Contrary to the broad dicta in Mosley and elsewhere, our decisions demonstrate that
content-based distinctions, far from being presumptively invalid, are an inevitable and
indispensable aspect of a coherent understanding of the First Amendment.
R.A.V. v. City of St. Paul
31
This is true at every level of First Amendment law. In broadest terms, our entire First
Amendment jurisprudence creates a regime based on the content of speech. The scope of the
First Amendment is determined by the content of expressive activity: although the First
Amendment broadly protects “speech,” it does not protect the right to “fix prices, breach
contracts, make false warranties, place bets with bookies, threaten, [or] extort.” Schauer,
Categories and the First Amendment: A Play in Three Acts, 34 Vand.L.Rev. 265, 270 (1981).
Whether an agreement among competitors is a violation of the Sherman Act or protected activity
under the Noerr-Pennington doctrine [n2] hinges upon the content of the agreement. Similarly,
the line between permissible advocacy and impermissible incitation to crime or violence
depends, not merely on the setting in which the speech occurs, but also on exactly what the
speaker had to say.
Young v. American Mini Theatres, Inc., 427 U.S. 50, 66 (1976) (plurality opinion); see also
Musser v. Utah, 333 U.S. 95, 100-103 (1948) (Rutledge, J., dissenting). [p421]
Likewise, whether speech falls within one of the categories of “unprotected” or “proscribable”
expression is determined, in part, by its content. Whether a magazine is obscene, a gesture a
fighting word, or a photograph child pornography, is determined, in part, by its content. Even
within categories of protected expression, the First Amendment status of speech is fixed by its
content. New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Dun & Bradstreet, Inc. v.
Greenmoss Builders, Inc., 472 U.S. 749 (1985), establish that the level of protection given to
speech depends upon its subject matter: speech about public officials or matters of public
concern receives greater protection than speech about other topics. It can, therefore, scarcely be
said that the regulation of expressive activity cannot be predicated on its content: much of our
First Amendment jurisprudence is premised on the assumption that content makes a difference.
Consistent with this general premise, we have frequently upheld content-based regulations of
speech. For example, in Young v. American Mini Theatres, the Court upheld zoning ordinances
that regulated movie theaters based on the content of the films shown. In FCC v. Pacifica
Foundation, 438 U.S. 726 (1978) (plurality opinion), we upheld a restriction on the broadcast of
specific indecent words. In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (plurality
opinion), we upheld a city law that permitted commercial advertising, but prohibited political
advertising, on city buses. In Broadrick v. Oklahoma, 413 U.S. 601 (1973), we upheld a state law
that restricted the speech of state employees, but only as concerned partisan political matters. We
have long recognized the power of the Federal Trade Commission to regulate misleading
advertising and labeling, see, e.g., Jacob Siegel Co. v. FTC, 327 U.S. 608 (1946), and the
National Labor Relations Board’s power to regulate an employer’s election-related speech on the
basis of its content. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616-618 (1969).
[p422] It is also beyond question that the Government may choose to limit advertisements for
cigarettes, see 15 U.S.C. §§ 1331-1340, [n3] but not for cigars; choose to regulate airline
advertising, see Morales v. Trans World Airlines, 504 U.S. 374 (1992), but not bus advertising;
or choose to monitor solicitation by lawyers, see Ohralik v. Ohio State Bar Assn., 436 U.S. 447
(1978), but not by doctors.
R.A.V. v. City of St. Paul
32
All of these cases involved the selective regulation of speech based on content — precisely the
sort of regulation the Court invalidates today. Such selective regulations are unavoidably
content-based, but they are not, in my opinion, “presumptively invalid.” As these many decisions
and examples demonstrate, the prohibition on content-based regulations is not nearly as total as
the Mosley dictum suggests.
Disregarding this vast body of case law, the Court today goes beyond even the overstatement in
Mosley, and applies the prohibition on content-based regulation to speech that the Court had
until today considered wholly “unprotected” by the First Amendment — namely, fighting words.
This new absolutism in the prohibition of content-based regulations severely contorts the fabric
of settled First Amendment law.
Our First Amendment decisions have created a rough hierarchy in the constitutional protection of
speech. Core political speech occupies the highest, most protected position; commercial speech
and nonobscene, sexually explicit speech are regarded as a sort of second-class expression;
obscenity and fighting words receive the least protection of all. Assuming that the Court is
correct that this last class of speech is not wholly “unprotected,” it certainly does not follow that
fighting words and obscenity receive the same sort of protection afforded core political speech.
Yet, in ruling that proscribable speech cannot be regulated based on subject matter, [p423] the
Court does just that. [n4] Perversely, this gives fighting words greater protection than is afforded
commercial speech. If Congress can prohibit false advertising directed at airline passengers
without also prohibiting false advertising directed at bus passengers, and if a city can prohibit
political advertisements in its buses, while allowing other advertisements, it is ironic to hold that
a city cannot regulate fighting words based on “race, color, creed, religion or gender,” while
leaving unregulated fighting words based on “union membership or homosexuality.” Ante at 391.
The Court today turns First Amendment law on its head: Communication that was once entirely
unprotected (and that still can be wholly proscribed) is now entitled to greater protection than
commercial speech — and possibly greater protection than core political speech. See Burson v.
Freeman, 504 U.S. 191, 195, 196 (1992).
Perhaps because the Court recognizes these perversities, it quickly offers some ad hoc limitations
on its newly extended prohibition on content-based regulations. First, the Court states that a
content-based regulation is valid “[w]hen the content discrimination is based upon the very
reason the entire class of speech . . . is proscribable.” In a pivotal passage, the Court writes
the Federal Government can criminalize only those physical threats that are directed against the
Pr…