Cases discussed in this episode:

• R.A.V. v. City of St. Paul | Oyez
• Wisconsin v. Mitchell | Oyez
• Virginia v. Black | Oyez

Transcript:

This is Michele Goodwin, executive producer of Ms. Studios and  Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom. 

0:00:44

We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com.. And now, here is your host Steven Rohde with our episode: Is Hate Speech Free Speech?

00:00:56 Steven Rohde:

In the predawn hours of June 21, 1990 in Saint Paul, Minnesota, a teenager named Robert A Victora, who was identified in court records only by the initials RAV, and several other teenagers 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 house where RAV was staying.

00:01:55

He was arrested. This case gives us an opportunity to explore the whole issue of hate speech and whether or not it’s protected by the First Amendment. RAV’s conduct could have been punished under various general vandalism laws such as arson, trespass, and destroying private property. Instead, one of the two provisions under which the city of Saint Paul chose to charge RAV was a statute called the Saint Paul Bias Motivated Crime Ordinance, which provided as follows: “whoever places on  public or private property a symbol, object, epilation, characterization or graffiti including but not limited to 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.”

00:03:11

RAV’s attorney moved to dismiss this count on the ground that on its face, the Saint Paul ordinance violated the First Amendment because it was substantially over broad and punished the content of speech. The trial court granted his motion but the Minnesota Supreme Court reversed. It rejected the claim that the statute was over broad because previous Minnesota cases had determined that the phrase “arouses anger, alarm, or resentment in others” limited the reach of the ordinance to conduct that amounts to “fighting words,” which is “conduct that itself inflicts injury or tends to incite immediate violence.”

00:04:03

It’s worth pausing here to take a look at the fighting words doctrine. It’s one of a handful of narrow exceptions we are looking at in these podcasts that the Supreme Court has recognized do not enjoy First Amendment protection. The fighting words doctrine can be traced back to a 1942 case, Chaplinsky v. New Hampshire. In that case, Walter Chaplinsky, a Jehovah’s witness, was distributing religious pamphlets and speaking one afternoon in Rochester, New Hampshire when a crowd gathered around him. As Chaplinsky railed against organized religion, the crowd became restless. 

00:04:50

City marshal Bowering approached Chaplinsky but reminded the crowd that Chaplinsky was speaking within the law. After leaving the scene, Bowering received word of a riot ensuing where Chaplinsky was speaking. As he headed back to the scene, a marshal came upon Chaplinsky being escorted to a police station by another police officer. Upon seeing Bowering, Chaplinsky called out “you are a god damn racketeer and a damn fascist and the whole government of Rochester are fascists or agents of fascists.”

00:05:31

Chaplinsky was arrested for violating a New Hampshire law that prohibited any person  from addressing “any offensive, derisive, or annoying word to another person who is lawfully in any street or other public place or calling him by any offensive or derisive name or making any noise or exclamation in his presence and hearing with intent to deride offend or annoy him or to prevent him from pursuing his lawful business or occupation.” 

00:06:08

Chaplinsky was convicted and appealed eventually to the U.S. Supreme Court, arguing that the New Hampshire law violated his First and Fourteenth Amendment rights to free speech. Justice Frank W. Murphy, writing for a unanimous court, held that certain words written or spoken are exempt from First Amendment protection when they instigate violent reaction by listeners. Although most speech falls under the protection of the First Amendment freedom of speech, expressions that the court called “lude and obscene, profane, libelous, and insulting or fighting words” cannot claim constitutional protection. 

00:06:57

Justice Murphy stated that fighting words, “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” He concluded as follows: “there are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. It has been well observed that such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interests in order and morality.” 

00:07:45

The RAV case was decided by the U.S. Supreme Court on June 22, 1992, exactly 50 years after the Chaplinsky case. This time the court unanimously held that the Saint Paul ordinance did violate the First Amendment. Speaking for five of the justices, Justice Antonin Scalia noted that the Saint Paul statute was meant to prohibit expressions that serve to cause outrage, alarm, or anger with regard to only racial, gender, or religious intolerance. Expressions designed to raise…stop. Expressions designed to arouse, anger, or outrage on other grounds were not prohibited. That’s the ordinance singled out certain particular content-based viewpoints and to do that is unconstitutional.

00:08:46

Justice Scalia also found it was not reasonable for Saint Paul to claim that content specific discrimination was necessary to achieve a narrow and compelling end. Even granting that the goal of avoiding outrage, alarm, or anger on the basis of race, color, creed, religion, or gender was compelling as the Minnesota high court had found, Justice Scalia held that this goal could be achieved with an ordinance that did not address or prohibit only certain content. He began his opinion by making clear that the First Amendment generally prevents government from prohibiting speech or even expressive conduct simply because the government disapproves of the ideas expressed.

00:09:37

Such content-based regulations are presumptively invalid. This is a fundamental First Amendment principle. We don’t want the government, Congress, state legislatures, city councils, or any public entity to prohibit some ideas and promote others. It’s often referred to as the level playing field rationale underlying free speech. Government backed by law enforcement and the power to put people in jail should not pick sides in matters of public interest. Those matters should instead be left to private individuals to debate and decide. 

00:10:20

Justice Scalia pointed out that the court has long held that nonverbal expression and activities can be banned because of the action it entails and causes, but not because of the ideas it expresses. For example, burning a flag in violation of an ordinance against outdoor fires could be punished because there’s a legitimate public safety ba-basis for that ordinance. But burning a flag in violation of an ordinance against dishonoring the American flag cannot be punished and such an ordinance could not withstand a legal challenge because the ordinance would violate a person’s First Amendment rights.

00:11:05

Applying these fundamental principles to the RAV case, the court concluded that the Saint Louis ordinance was unconstitutional. The court noted that the phrase in the ordinance“arouses anger, alarm, or resentment in others” had been limited by the Minnesota Supreme Court’s construction so that it applied only to those symbols or displays that amount to fighting words but the remaining terms made clear that fighting words only meant fighting words that insult or provoke violence on the basis of race, color, creed, religion, or gender. Other displays containing abusive insulting language or symbols, no matter how vicious or severe, were still permissible unless they were addressed to one of the specific disfavored topics.

00:12:01

So, those people who wish to use fighting words to express hostility against someone because of that person’s political affiliation, for example, or for that person’s union membership or for that person’s homosexuality, could not be punished under this ordinance. This is why the ordinance violated the First Amendment. As the court explained, the “First Amendment does not permit Saint Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Justice Scalia colorfully put it as follows: “Saint Paul has no such authority to license one side of a debate to fight freestyle while requiring the other to follow the Marcus of Queensbury rules.”

00:12:55

He hastened to add that one must wholeheartedly agree with the Minnesota Supreme Court that it is the responsibility, even the obligation, of diverse communities to confront messages of bias motivated hatred and in particular messages “based on virulent notions of racial supremacy” in whatever form they appear, but the manner of that confrontation cannot consist of selective limitations upon speech. He explained “the point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”

00:13:42

Finally, Justice Scalia addressed one last argument made by Saint Paul which was the following: Saint Paul asserted that its ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish. Saint Paul argued that protecting the rights of these group members who have been historically subjected to discrimination is a narrowly tailored goal that serves a compelling state interest.

00:14:20

Justice Scalia agreed that these interests were compelling and that the ordinance can be said to promote them. But he asserted that the danger of censorship, as he put it, is so strong where a statute depends on the content of one’s speech that it cannot be upheld only where absolutely necessary to serve the compelling interests. The fact that there were adequate content neutral alternatives to Saint Paul’s statue undercuts significantly Saint Paul’s defense of this particular statute. The dispositive question in this case according to Justice Scalia was whether content discrimination was reasonably necessary to achieve Saint Paul’s compelling interests. 

00:15:12

He explained why such a measure was not reasonably necessary as follows, “an ordinance not limited to favored topics for example would have precisely the same beneficial effect. In fact, the only interest distinctively served by the content limitation is that of displaying the city council’s special hostility toward the particular biases thus singled out. That is precisely what the First Amendment forbids”. He concluded with these words, “let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible, but Saint Paul has sufficient means at its disposal to prevent such behavior without adding First Amendment to the fire.”

00:16:04

Four of the justices, Byron White, Harry Blackmun, Sandra Day O’Connor and John Paul Stevens joined in several concurring opinions. They all agreed that Saint Paul’s ordinance was unconstitutional but not for the reasons the majority stated. Instead, they believe that the Saint Paul ordinance was fatally over broad because it not only criminalized expression that was not protected by the First Amendment, it also criminalized expression that was protected by the First Amendment. The doctrine on which these justices were relying, the overbreadth doctrine, is very important in First Amendment law.

00:16:49

A defendant being prosecuted for speech or expressive conduct may challenge the law on its face if that law seeks to criminalize speech or expression protected by the First Amendment even when that person’s own activities are not protected by the First Amendment. Although the Saint Paul ordinance covered categories of speech that are constitutionally unprotected, such as fighting words, it also criminalized a substantial amount of expression that is shielded by the First Amendment even though that expression is repugnant to many of us. The mere fact that expression causes hurt feelings, offense, or resentment does not render that expression unprotected. 

00:17:36

In this case, the Saint Paul ordinance criminalized speech or expressive conduct that causes only hurt feelings, offense, or resentment. For that reason, it violated the First Amendment and for that reason the ordinance was fatally overbroad. It went too far in the kinds of expression it tried to outlaw. Thus, it was invalid on its face. But RAV was not the last word from the Supreme Court on cross burning or attempts to limit racially motivated hate speech. Just two years later in 1993 in Wisconsin v. Mitchell, the court upheld enhanced sentences for individuals convicted of an assault when it was determined that they had selected their victim on the basis of race, religion, or other invidious biases.

00:18:33

In this case, a group of black men who had just watched the movie “Mississippi Burning” decided to attack a young white man. Todd Mitchell, one of the attackers, said to the group “you all feel hyped up to move on some white people? Theres…There goes a white boy. Go get him.” Mitchell’s two-year sentence was increased to four years because his statement to the group demonstrated that they selected their victim on the basis of race. In his defense, Mitchell claimed that the penalty enhancement statute violated his First Amendment rights. The court rejected this argument and upheld the statute.

00:19:21

What is important to note here is that Wisconsin v. Mitchell is different from RAV because in RAV the entire crime was the cross burning, a form of expressive activity. The defendant had done nothing else. In Wisconsin v. Mitchell, the crime was the violent assault which is clearly not protected by the First Amendment. The only issue in Wisconsin v. Mitchell was whether or not the defendant’s statements reflecting racial bias could be used to enhance his sentence for his criminal conduct. The court determined that it would.

00:20:03

10 years later in a 2003 decision, Virginia v. Black, that case complicated the issue of cross burning. There, the Supreme Court upheld a Virginia statute making it illegal to burn a cross in public with “the intent to intimidate others,” but it also invalidated a provision of the same law that allowed a jury to infer intent to intimidate just from the act of burning the cross in public. In other words, the court determined that the act of burning a cross was not in and of itself sufficient to demonstrate an intent to intimidate. The court required other evidence of that intent.

00:20:51

This time, the exception the First Amendment protection the court relied on was the exception for true threats. If the speech or expression is a true threat, it’s not protected by the First Amendment. Justice Sandra Day O’Connor wrote the opinion for the majority in Virginia v. Black. She began with a discussion of the history of cross burning. She concluded that some but not all cross burning was intimidating. Speaking for six justices, she held that even though cross burning was at times expressive conduct, Virginia could ban cross burning because it represents a true threat. 

00:21:36

She defined true threat as follows: “true threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” What’s interesting about Justice O’Connor’s opinion is that she clearly wanted to conclude that racially motivated cross burning is not protected by the First Amendment, but to reach this conclusion she had to find a way to distinguish the RAV case.

00:22:13

To distinguish RAV, she held that cross burning was a “particularly virulent form of discrimination.” Therefore, she claimed that it fell within an exception established under RAV that let states ban extreme forms of a given type of punishable speech without banning others’ less severe forms. But Justice Scalia who had written RAV dissented from Justice O’Connor’s interpretation of what he himself had written in RAV. He had clearly held that nonverbal expressive activity including cross burning cannot be banned simply because of the ideas it expresses under a law that singled out certain types of cross burning.

00:23:05

This is not the first time the Supreme Court Justices have disagreed over what previous Supreme Court cases mean and it certainly won’t be the last.

 Thank you for listening to Speaking Freely. I want to thank my producer Allison Whelan, and I want to welcome you back to future episodes of Speaking Freely: A First Amendment podcast.