In R.A.V. v. City of St. Paul, the Supreme Court struck down a St. Paul, Minnesota ordinance that proscribed cross burning and other actions, ‘‘which one knows or has reasonable grounds to know’’ will cause ‘‘anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’’ The Court unanimously held that the law was unconstitutional, but the justices agreed about little else. Four members of the Court—Justices White, Blackmun, Stevens, and O’Connor—concurred in the judgment of the Court, but did so solely on the grounds that the ordinance was overly broad, sweeping within its proscription expression that should be protected. The other five members of the Court, in the majority opinion of Justice Scalia, reached farther and found that the St. Paul ordinance was an unconstitutional content-based regulation of speech.
In R.A.V., the defendant Robert Viktora, then a minor, was accused of burning a cross on the lawn of Russell and Laura Jones and their children, an African- American family who had recently moved into the neighborhood. In moving to dismiss the indictment, Viktora asserted both that the ordinance was overbroad and that it was an unconstitutional, content- based restriction on speech. The Minnesota Supreme Court rejected the overbreadth challenge because that court construed the ordinance to apply only to ‘‘fighting words,’’ expression not protected by the First Amendment. The majority opinion by Justice Scalia accepted this construction, and thus reached the content-based challenge.
Justice Scalia utilized a limited categorical approach to the First Amendment. Acknowledging that ‘‘fighting words,’’ along with other categories of expression such as obscenity and defamation, are not entitled to full First Amendment protection, Justice Scalia asserted that these forms of expression nevertheless enjoy some limited protection and are not ‘‘entirely invisible to the Constitution.’’ Within any of these categories, expression may be proscribed only on the basis of its categorical nature and not on the basis of its content.
Justice Scalia’s approach to the content neutrality doctrine purports not to require the government to proscribe either all forms of proscribable speech or none at all. Rather, he identified two exceptions to the general unacceptability of content-based restrictions on expression. First, choices may be made as to which forms of speech to proscribe so long as these choices do not address the content of the expression. Second, regulations may address content for the ‘‘very reason the entire class of speech at issue is proscribable’’ in the first place. For example, a regulation prohibiting only obscenity, ‘‘which is the most patently offensive in its prurience’’ would be permissible.
Justice Scalia found that the St. Paul ordinance fell within neither exception. He concluded that the ordinance was aimed directly at racist speech and biased beliefs rather than at ‘‘fighting words’’ generally or at a subgroup of ‘‘fighting words’’ selected for reasons other than the content of those words. He thus held that the ordinance impermissibly chose sides in the debate over racial prejudice. ‘‘St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.’’
The ultimate reach of R.A.V. was substantially limited by the Court’s decision one year later in Wisconsin v. Mitchell (1993) upholding the Wisconsin bias crime law.
FREDERICK M. LAWRENCE
Cases and Statutes Cited