Caseflicks

Supreme Court of the United States • 1992

R. A. v. v. City of St. Paul

505 U.S. 377 | 112 S. Ct. 2538 | 120 L. Ed. 2d 305 | 1992 U.S. LEXIS 3863

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Takeaway

In short, this case holds that even speech within an unprotected category such as fighting words cannot be selectively banned because of the government’s hostility toward the ideas or viewpoints it expresses.

Background

In 1990, R. A. V., then a juvenile, allegedly joined other teenagers in making a crude cross from broken chair legs and burning it in the fenced yard of a Black family living across the street from the home where he was staying. St. Paul charged him under its Bias-Motivated Crime Ordinance, which made it a misdemeanor to display such things as a burning cross or Nazi swastika when the actor knew or reasonably should have known that the display would arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender.

The juvenile court dismissed the ordinance count as substantially overbroad and impermissibly content based under the First Amendment. The Minnesota Supreme Court reversed. It authoritatively construed the ordinance to reach only “fighting words” under Chaplinsky—expression that inflicts injury or tends to provoke immediate violence—and concluded that the ordinance was narrowly tailored to a compelling interest in preventing bias-motivated threats to public safety and order. The U.S. Supreme Court reversed.

Issues

Issue #1

Whether a city may selectively prohibit a subset of otherwise proscribable fighting words based on the subjects or ideas they express.

Holding

No. Even assuming the ordinance reaches only fighting words, it is facially unconstitutional because it selectively prohibits speech based on its content and viewpoint.

Reasoning

The Court accepted the Minnesota Supreme Court’s authoritative construction that the ordinance reached only fighting words. It therefore did not decide whether the ordinance was overbroad under the proper scope of the fighting-words doctrine. Instead, the Court assumed that all speech covered by the ordinance could constitutionally be proscribed and asked whether St. Paul could selectively regulate that speech because of the message it conveyed.

The fact that a category of speech is proscribable does not make it wholly invisible to the First Amendment. Government may regulate fighting words because of the features that make them fighting words—an especially intolerable and socially unnecessary mode of expression—but may not use that category as a vehicle for suppressing ideas it disfavors. Just as government may punish obscenity but may not punish only obscenity critical of the government, it may not punish fighting words only when they express particular ideological content.

St. Paul’s ordinance covered fighting words that insulted or provoked violence on the basis of race, color, creed, religion, or gender, while leaving equally abusive fighting words concerning political affiliation, union membership, or homosexuality outside the law. That distinction was based on the content of the message, not on a neutral feature of the manner in which it was communicated.

In practical operation, the ordinance also discriminated by viewpoint. It could permit a speaker to denounce “anti-Catholic bigots” in fighting words while barring a speaker who used fighting words to attack Catholics. St. Paul therefore gave one side of debates about race, religion, and gender greater freedom to employ invective than the other side, which is a form of viewpoint discrimination at the core of the First Amendment’s prohibition.

Issue #2

Whether St. Paul’s interest in protecting historically disadvantaged groups and public order justified this content-based restriction.

Holding

No. St. Paul’s interests were compelling, but the content discrimination was not necessary to serve them because content-neutral alternatives could address the same harms.

Reasoning

The Court did not question the seriousness of the city’s interests in protecting members of historically discriminated-against groups and ensuring their ability to live in peace. Nor did it dispute that the ordinance could promote those interests. But a facially content-based prohibition creates a special danger of censorship and must be necessary to achieve the asserted compelling interest.

A generally applicable prohibition on fighting words, or enforcement of other content-neutral criminal laws against threats, arson, trespass, property damage, or intimidation, could protect residents from the same conduct without singling out messages of racial, religious, or gender hostility. St. Paul itself had other laws available to punish cross burning and related misconduct.

The ordinance did not fit an exception allowing distinctions tied to the very reason an entire proscribable category may be regulated. St. Paul did not select especially threatening fighting words as a mode of expression; it selected fighting words that conveyed messages of racial, religious, or gender intolerance. Nor was it a secondary-effects regulation, because the audience’s emotional reaction to a message is not a secondary effect under the Court’s precedents.

The only distinctive interest served by the ordinance’s content limitation was the city’s desire to express special hostility toward certain biases. Government officials may express that condemnation themselves, but the First Amendment forbids them from doing so by imposing special speech restrictions on those who express opposing or hateful views.

Concurrences

Justice White

Reasoning

Justice White agreed that the ordinance was unconstitutional but rejected the majority’s new content-discrimination theory. In his view, settled doctrine treated defined categories such as fighting words, obscenity, and libel as outside First Amendment protection. A government could therefore regulate a subset of fighting words without having to ban every other kind of fighting word, subject at most to ordinary equal-protection review.

He argued that the majority improperly replaced that categorical framework with an ill-defined rule against selective regulation of proscribable speech. White believed the Court’s exceptions—for threats against the President, speech producing secondary effects, and speech incidentally covered by conduct regulations—were ad hoc and potentially confusing. He also maintained that St. Paul’s focused concern with race-, religion-, and gender-based intimidation was rational, given the Nation’s history of discrimination.

White would instead invalidate the law under the established overbreadth doctrine. Although the Minnesota Supreme Court construed the ordinance to invoke fighting words, its construction allowed punishment of expression that merely aroused anger, alarm, or resentment. Hurt feelings, offense, and resentment alone do not make speech fighting words or strip it of First Amendment protection.

Because the ordinance, as construed, swept in a substantial amount of protected expression as well as genuinely unprotected threats or fighting words, White concluded that it was facially overbroad. Justice Blackmun and Justice O’Connor joined his opinion, and Justice Stevens joined all except its defense of the categorical approach in Part I-A.

Justice Blackmun

Reasoning

Justice Blackmun concurred in the judgment because he agreed with Justice White that the ordinance reached protected speech beyond true fighting words. He thus regarded overbreadth as the proper and sufficient basis for invalidating the law.

He warned that the majority’s approach was troubling whether it became enduring doctrine or was treated as an exceptional result. If read broadly, it risked eroding the traditional distinctions among levels of First Amendment protection and ultimately weakening protection for core political speech. If read narrowly, it suggested that the Court had manipulated doctrine because it disapproved of St. Paul’s judgment that race-based intimidation produces distinctive harms.

Blackmun stressed that nothing in the First Amendment prevents a city from specifically punishing true race-based threats or intimidation that drive minorities from their homes. In his view, the constitutional defect was this ordinance’s overbroad reach, not its effort to address the special harms of bias-motivated fighting words.

Justice Stevens

Reasoning

Justice Stevens agreed that the ordinance was overbroad for the reasons Justice White gave, but he disagreed with the majority’s near-categorical rule against content-based distinctions within proscribable speech. First Amendment doctrine, in his view, necessarily considers content, context, the character of the speech, and the scope of the restriction; it cannot be reduced to a rigid protected-versus-unprotected classification or an absolute content-neutrality rule.

If the ordinance truly reached only fighting words, Stevens would have upheld it. Fighting words are low-value, confrontational expression, and a legislature may reasonably conclude that threats or insults based on race, religion, or gender cause more severe individual and societal harms than other fighting words. That judgment resembles the permissible decision to punish threats against the President more severely because of their distinctive potential for disruption.

Stevens viewed the ordinance as targeting the particular injury caused by bias-based intimidation rather than suppressing debate on race, religion, or gender. Properly understood, it prohibited both advocates and opponents of tolerance from directing fighting words at another person because of that person’s race, color, creed, religion, or gender. It therefore did not favor one viewpoint in a public debate.

The ordinance, as assumed by the majority, was also narrow: it did not ban all hate speech, all cross burnings, or ordinary expressions of racial supremacy. It applied only when conduct constituted fighting words directed at an individual. Thus, absent overbreadth, Stevens believed the ordinance would not present a realistic threat that the city would drive ideas or viewpoints from the marketplace.