George Madden
Ed. Foundations
Eastern Montana College
Mike Dahlem
Law
Montana Federation of Teachers
On June 22, 1992, the United States Supreme Court invalidated a city ordinance in a case which could have implications for colleges and universities seeking to regulate hate speech on campus. In R.A.V. v. City of St. Paul (Slip Opinion No. 90-7675), the Court struck down St. Paul's "Bias-Motivated Crime" ordinance. While the entire Court voted to invalidate the ordinance under the First Amendment, members of the Court were deeply divided in their legal reasoning.
This case came to the United States Supreme Court on a writ of certiorari following a decision by the Minnesota Supreme Court upholding the ordinance. The case involves a criminal charge against a St. Paul teenager accused of burning a cross in the yard of a black family that lived nearby. The teenager was charged, inter alia, with violating the city ordinance which provides that:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or 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. (Slip Opinion at 1)
The constitutionality of the St. Paul ordinance was attacked on two grounds: 1) overbreadth, and 2) content discrimination. An ordinance (or rule or statute) is overbroad when it is capable of being applied to speech or expressive conduct protected by the Constitution. An ordinance is impermissibly content based when there is no compelling state interest in the proscription of the speech or expressive conduct.
The trial court ruled that the ordinance failed the constitutional test on both grounds. However, the Minnesota Supreme Court reversed, holding that the ordinance applied only to "fighting words."
A five-member majority (Scalia, Rehnquist, Kennedy, Souter, and Thomas) adopted the view of the Minnesota Supreme Court that the ordinance was not overbroad because it was limited to proscribing "fighting words." Three categories of speech--fighting words, obscenity, and defamation--have traditionally been held to be of such slight social value that they have been extended little constitutional protection. Writing for the majority, Justice Scalia maintained that while "fighting words" have little or no social value they may still convey an idea. As such, it is impermissible to proscribe certain fighting words but not others based on their content. If the ordinance were allowed to stand, then
Displays containing some words--odious racial epithets, for example--would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke race, color, creed, religion, or gender--aspersions upon a person's mother, for example--would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker's opponents. One could hold up a sign saying, for example, that all "anti-Catholic bigots" are misbegotten; but not that all "papists" are for that would insult and provoke violence "on the basis of religion." 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. (Id. at 13)
A four-member minority (Justices White, Blackmun, and O'Conner, with Stevens joining in part) concurred in the judgment but rejected the analysis offered by Justice Scalia. These justices found the ordinance unconstitutional for overbreadth. Writing for the minority, Justice White criticized the "underinclusiveness" analysis of the majority. He noted that:
Under the broad principle the Court uses to decide the present case, hostile work environment claims based on sexual harassment should fail the 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. (Concurring Opinion at 14)
Justice Stevens (with White and Blackmun joining in part) in a separate concurring decision argued that, "Conduct that creates special risks or causes special harms may be prohibited by special rules." (Concurring Opinion at 1) He pointed out that such prohibitions are often and perhaps necessarily content based. He found them constitutional when the sate can show a compelling interest.
In another concurring opinion, Justice Blackmun expressed regret over the majority analysis. He noted that Justice Scalia adopted a legal theory that was not briefed in the case. Blackmun wrote, "I fear that the Court has been distracted from its proper mission by the temptation to decide the issue over 'politically correct speech' and 'cultural diversity,' neither of which is presented here." (Concurring Opinion at 2)
The decision in this case is regrettable not for its judgment but for its jurisprudence. The Court missed an opportunity to send a clear message on the constitutionality of rules designed (with good intentions) to protect minority groups from expressions of hate that would do them harm. In adopting an underinclusiveness the Court has actually invited the adoption of broader hate speech prohibitions. As Justice White noted, this legal theory threatens to undermine other legislation such as Title VII designed to protect women and minorities.
Members of the academic community would be well advised to proceed with caution when considering any hate speech regulation. The holding in R.A.V. v. St. Paul suggests that even a code proscribing only fighting words will be found invalid unless the code proscribes ALL fighting words. It is unclear whether such a code would reduce the bigotry that has become all too commonplace on our college campuses.