A juvenile allegedly burned a cross inside the fenced yard of an African-American family in St. Paul, Minnesota. He was charged under St. Paul’s Bias-Motivated Crime Ordinance, which prohibited placing symbols such as a burning cross or swastika that one knows or has reason to know arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender. The Minnesota Supreme Court construed the ordinance to reach only "fighting words" unprotected by the First Amendment. The defendant argued that even so limited, the ordinance was unconstitutional.
May a city, consistent with the First Amendment, prohibit only those fighting words that express hostility on specified subjects such as race, religion, or gender?
Even within categories of unprotected speech such as fighting words, the government generally may not engage in content discrimination or viewpoint discrimination. The First Amendment forbids selectively proscribing speech based on the subjects discussed or the ideas expressed, absent a permissible basis tied to the reasons the entire category is unprotected.
No. The St. Paul ordinance was facially unconstitutional because it prohibited otherwise unprotected fighting words only when they conveyed disfavored messages on particular subjects, making it impermissibly content- and viewpoint-based.
Justice Scalia explained that the government cannot license one side of a debate to fight freestyle while requiring the other to follow Marquis of Queensberry rules. Although fighting words may be proscribed as a class under Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), St. Paul singled out only those fighting words expressing bias on race, religion, or gender, leaving other equally abusive fighting words untouched. That selectivity amounted to viewpoint discrimination because the ordinance punished particular disfavored ideas rather than the entire proscribable mode of expression. The Court noted that content discrimination within unprotected categories is allowed only in limited circumstances, such as when the distinction is tied to the very reason the category is unprotected, which was not the case here.
Justice White, joined in relevant part by Justices Blackmun and O’Connor, argued that fighting words are wholly unprotected and that the ordinance permissibly targeted a particularly virulent subset causing special harms. Justice Stevens, joined in part by Justices White and Blackmun, also would have upheld the ordinance, viewing the law as a permissible regulation of especially injurious expressive conduct rather than unconstitutional viewpoint discrimination.
R.A.V. is a leading First Amendment decision on content and viewpoint discrimination, holding that even low-value or unprotected speech categories cannot be selectively regulated based on subject matter or ideology. The case sharply limited hate-speech ordinances drafted to single out racist or similar messages and distinguished between banning an entire unprotected category and targeting only disfavored ideas within it. It is closely related to Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), and was later complemented by Wisconsin v. Mitchell, 508 U.S. 476 (1993), which upheld enhanced punishment for bias-motivated conduct because that law targeted conduct rather than speech.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) |
Abstain |
Wisconsin v. Mitchell, 508 U.S. 476 (1993) |
Abstain |
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) |
Abstain |
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