The petitioner challenged the city ordinance that prohibits anyone from placing a burning cross on a public or private property.
areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content – not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content.
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 burned the cross inside the fenced yard of a black family that lived across the street from the petitioner’s house. City of St. Paul chose to charge petitioner under its St. Paul Bias-Motivated Crime Ordinance that prohibits anyone from placing on public or private property a symbol, object, including a burning cross, which one knows arouses anger, alarm, or resentment in others on the basis of race, color… shall be guilty of a misdemeanor. Petitioner challenged this ordinance on the ground that it was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment.
Does the city ordinance that prohibits anyone from placing on public or private property a symbol, object, including a burning cross, which one knows arouses anger, alarm, or resentment in others on the basis of race or color violate the Constitution?
Yes, assuming that all of the expression reached by the ordinance is proscribable under the “fighting words” doctrine, the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of subjects the speech addresses.
Just as Congress may determine that threats against the President entail more severe consequences than other threats, so St. Paul’s City Council may determine that threats based on the target’s race, religion, or gender cause more severe harm to both the target and to society than other threats. This latter judgment – that harms caused by racial, religious or gender-based invective are qualitatively different from that caused by other fight words – seems more reasonable and realistic.
Title VII makes it unlawful to discriminate because of an individual’s race, color, religion, sex, or national origin, and the regulations covering hostile workplace claims forbid sexual harassment. The regulation does not prohibit workplace harassment generally; it focuses on what the majority would characterize as the disfavored topic of sexual harassment. Under the broad principle the Court uses to decide the present case, 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.
The ordinance is facially unconstitutional. Though the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by 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, 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 on the basis of political affiliation, union membership, or homosexuality, for example – are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.