R.A.V. placed a burning cross in a black family’s yard. He was subsequently charged under a St. Paul bias-motivated crime ordinance.
Although fighting words may be constitutionally prohibited, a comprehensive prohibition based on the subject of the speech is unconstitutional.
R.A.V. and several other teens constructed a cross by taping broken chair legs together. Then, they allegedly burned the cross inside the yard of a black family that lived nearby. St. Paul chose to charge R.A.V. under a St. Paul bias-motivated crime ordinance, which says “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross of 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.”
Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment?
Yes, the ordinance is overly broad and impermissibly content-based in violation of the First Amendment.
The ordinance is unconstitutional, but should be decided on overbreadth grounds.
First Amendment values are not compromised by the ordinance as written. However, the judgment should stand because it extends beyond fighting words to protected speech.
The ordinance regulates speech not on the basis of its subject matter or the viewpoint expressed, but rather on the basis of the harm the speech causes. Contrary to the Court’s suggestion, the ordinance regulates only a subcategory of expression that causes injuries based on “race, color, creed, religion or gender,” but not a subcategory that involves discussions that concern those characteristics.
The ordinance is facially invalid because it prohibits otherwise permitted solely speech, solely on the basis of the subject that the speech addresses. The First Amendment does not allow the government to punish speech or expressive conduct simply because it disapproves of the ideas expressed. The ordinance at issue is a prohibition of fighting words that contain messages of “bias-motivated” hatred with respect to racial, gender, or religious intolerance. However, other expressions designed equally to arouse anger or outrage on other bases were not prohibited. As such, the ordinance unconstitutionally singled out particular, content-based viewpoints. While it is the responsibility of communities to confront such notions, the manner of that confrontation cannot exist as limitations on speech.