9 Unprotected Categories: Fighting Words and Hate Speech

The Court’s Response to Hate Speech Regulations

While cases such as Skokie suggested courts would neither include hate speech within the shrinking category of fighting words nor designate it as a new unprotected category, the creation of hate speech codes or prohibitions continued during the 1980s, particularly in areas (such as cities or universities) where liberals tended to have more political power. Adoption of such codes was often driven by outrage over racist events in a particular community, such as a campus “slave auction” or fliers that openly attacked blacks or other minorities. Universities in particular worried hate speech would pressure minority students to disengage or remain silent in the classroom, harming both their own education and the gains that diversity can bring to the educational process.

Generally, codes at public universities (which are state actors for free speech purposes) did not fare well when challenged under the First Amendment. For one, the codes often covered speech not only directed at individuals (for example, a face-to-face racial slur) but derogatory speech in general. As fighting words—particularly after Cohen—require targeted attacks, these codes were held overbroad, covering protected speech (albeit speech that was often insulting or degrading to minorities). Speech codes also suffered in court because they were unconstitutionally vague, in the same manner as California’s definition of “offensiveness” in Cohen. If an individual had to guess  what such a code prohibited, it could not pass constitutional muster

The Supreme Court entered the field in 1992, offering a ruling which further limited the ability of public entities to ban hate speech. While the case in question, R.A.V. v. St. Paul, did not deal with a university speech code, the majority’s reasoning had clear and negative implications for the constitutionality of these codes.

R.A.V.—a minor whose name was initialized to provide some protection for his privacy—was arrested with two other individuals for burning a cross on the lawn of a black family who had recently moved into their St. Paul neighborhood. Though R.A.V.’s action violated any number of laws (trespassing, threat or intimidation, and so on), the constitutional question centered on charges brought under St. Paul’s Bias-Motivated Crime Ordinance. This law banned the display of symbols that aroused “anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.”

R.A.V.’s attorneys sued, arguing the ordinance violated the First Amendment. St. Paul responded that the ordinance only banned what courts had previously recognized as fighting words. The Minnesota Supreme Court agreed, upholding the law by formally construing its reach only to fighting words. It also held that the ordinance was narrowly tailored to serve a compelling government interest, namely preventing threats and upholding public safety and order. R.A.V. appealed to the US Supreme Court.

Note that the Supreme Court unanimously agreed that the law was unconstitutional, but disagreed heavily on why it was unconstitutional.

R.A.V. v. St. Paul

505 U.S. 377 (1992)

Facts: RAV, a minor, burned a cross on a neighbor’s lawn along with some of his friends. RAV was prosecuted under a St. Paul statute that prohibits the display of “a symbol … which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”

RAV sued in state court, arguing that the law was both overbroad and content-discriminatory. The Minnesota Supreme Court ultimately ruled the law was constitutional, construing the law to only include material previously defined as fighting words.

Question: Did St. Paul’s ordinance violate the First Amendment’s free speech clause?

Vote: Yes, 9-0

For the Court: Justice Scalia

Concurring opinion: Justice White

Concurring opinion: Justice Blackmun

JUSTICE SCALIA delivered the opinion of the Court.

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 then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws, one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance … which provides:

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.

I

In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota courts. Accordingly, we accept the Minnesota Supreme Court’s authoritative statement that the ordinance reaches only those expressions that constitute “fighting words” within the meaning of Chaplinsky…

The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which 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 interest in order and morality.” Chaplinsky. We have recognized that “the freedom of speech” referred to by the First Amendment does not include a freedom to disregard these traditional limitations. Our decisions since the 1960’s have narrowed the scope of the traditional categorical exceptions for defamation and for obscenity, but a limited categorical approach has remained an important part of our First Amendment jurisprudence.

We have sometimes said that these categories of expression are “not within the area of constitutionally protected speech”, or that the “protection of the First Amendment does not extend” to them. Such statements must be taken in context … What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.), 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. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government…

Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression… That would mean that a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government…

In other words, the exclusion of “fighting words” from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a “nonspeech” element of communication. Fighting words are thus analogous to a noisy sound truck … as with the sound truck, however, so also with fighting words: The government may not regulate use based on hostility—or favoritism—towards the underlying message expressed…

When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience, i.e. that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. And the Federal Government can criminalize only those threats of violence that are directed against the President … [but] not criminalize only those threats against the President that mention his policy on aid to inner cities. And to take a final example … a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud is in its view greater there. But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion…

II

Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although 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, creed, 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, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. 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 those speakers’ 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 Queensberry rules…

What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota Supreme Court repeatedly emphasized) messages of “bias-motivated” hatred and in particular, as applied to this case, messages “based on virulent notions of racial supremacy.” … St. Paul’s brief asserts that a general “fighting words” law would not meet the city’s needs because only a content-specific measure can communicate to minority groups that the “group hatred” aspect of such speech “is not condoned by the majority.” 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…

JUSTICE STEVENS suggests that this “fundamentally misreads” the ordinance.  It is directed, he claims, not to speech of a particular content, but to particular “injur[ies]” that are “qualitatively different” from other injuries. This is wordplay. What makes the anger, fear, sense of dishonor, etc., produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc., produced by other fighting words is nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message… St. Paul concedes in its brief that the ordinance applies only to “racial, religious, or gender-specific symbols” such as “a burning cross, Nazi swastika or other instrumentality of like import.”

The content-based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the First Amendment prohibition we discussed earlier… the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression–it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas…

Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the ordinance regulates expression based on hostility towards its protected ideological content, this discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests. Specifically, they assert that the 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. We do not doubt that these interests are compelling, and that the ordinance can be said to promote them. But … the existence of adequate content-neutral alternatives thus “undercut[s] significantly” any defense of such a statute, casting considerable doubt on the government’s protestations that “the asserted justification is in fact an accurate description of the purpose and effect of the law” … The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul’s compelling interests; it plainly is not. An ordinance not limited to the 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 towards the particular biases thus singled out. That is precisely what the First Amendment forbids… The politicians of St. Paul are entitled to express that hostility—but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree.

***

Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.

JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE O’CONNOR join, and with whom JUSTICE STEVENS joins except as to Part I-A, concurring in the judgment.

I agree with the majority that the judgment of the Minnesota Supreme Court should be reversed. However, our agreement ends there.

This case could easily be decided within the contours of established First Amendment law by holding, as petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment…

I

A

This Court’s decisions have plainly stated that expression falling within certain limited categories so lacks the values the First Amendment was designed to protect that the Constitution affords no protection to that expression…

Thus, as the majority concedes, this Court has long held certain discrete categories of expression to be proscribable on the basis of their content. For instance, the Court has held that the individual who falsely shouts “fire” in a crowded theater may not claim the protection of the First Amendment. Schenck v. United States. The Court has concluded that neither child pornography nor obscenity is protected by the First Amendment. And the Court has observed that, “[l]eaving aside the special considerations when public officials [and public figures] are the target, a libelous publication is not protected by the Constitution.”

All of these categories are content based. But the Court has held that the First Amendment does not apply to them because their expressive content is worthless or of de minimis value to society. We have not departed from this principle, emphasizing repeatedly that, “within the confines of [these] given classification[s], the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required.” This categorical approach has provided a principled and narrowly focused means for distinguishing between expression that the government may regulate freely and that which it may regulate on the basis of content only upon a showing of compelling need.

Today, however, the Court announces that earlier Courts did not mean their repeated statements that certain categories of expression are “not within the area of constitutionally protected speech.” …

To the contrary, those statements meant precisely what they said: The categorical approach is a firmly entrenched part of our First Amendment jurisprudence…

In its decision today, the Court … holds that the First Amendment protects those narrow categories of expression long held to be undeserving of First Amendment protection—at least to the extent that lawmakers may not regulate some fighting words more strictly than others because of their content. The Court announces that such content-based distinctions violate the First Amendment because “[t]he government may not regulate use based on hostility–or favoritism–towards the underlying message expressed.” Should the government want to criminalize certain fighting words, the Court now requires it to criminalize all fighting words…

Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace.

Therefore, the Court’s insistence on inventing its brand of First Amendment under-inclusiveness puzzles me… it permits, indeed invites, the continuation of expressive conduct that in this case is evil and worthless in First Amendment terms, until the city of St. Paul cures the underbreadth by adding to its ordinance a catchall phrase such as “and all other fighting words that may constitutionally be subject to this ordinance.”

Any contribution of this holding to First Amendment jurisprudence is surely a negative one, since it necessarily signals that expressions of violence, such as the message of intimidation and racial hatred conveyed by burning a cross on someone’s lawn, are of sufficient value to outweigh the social interest in order and morality that has traditionally placed such fighting words outside the First Amendment. Indeed, by characterizing fighting words as a form of “debate,” the majority legitimates hate speech as a form of public discussion…

Furthermore, the Court obscures the line between speech that could be regulated freely on the basis of content (i. e., the narrow categories of expression falling outside the First Amendment) and that which could be regulated on the basis of content only upon a showing of a compelling state interest (i. e., all remaining expression). By placing fighting words, which the Court has long held to be valueless, on at least equal constitutional footing with political discourse and other forms of speech that we have deemed to have the greatest social value, the majority devalues the latter category.

B

In a second break with precedent, the Court refuses to sustain the ordinance even though it would survive under the strict scrutiny applicable to other protected expression. Assuming that the St. Paul ordinance is a content-based regulation of protected expression, it nevertheless would pass First Amendment review under settled law upon a showing that the regulation “’is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.’“ St. Paul has urged that its ordinance, in the words of the majority, “helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination …. “

… Under the majority’s view, a narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech. This appears to be a general renunciation of strict scrutiny review, a fundamental tool of First Amendment analysis…

As with its rejection of the Court’s categorical analysis, the majority offers no reasoned basis for discarding our firmly established strict scrutiny analysis at this time. The majority appears to believe that its doctrinal revisionism is necessary to prevent our elected lawmakers from prohibiting libel against members of one political party but not another and from enacting similarly preposterous laws…

C

… To save the statute, the majority has engrafted the following exception onto its newly announced First Amendment rule: Content-based distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is “the very reason the entire class of speech at issue is proscribable.” …

The exception swallows the majority’s rule. Certainly, it should apply to the St. Paul ordinance, since “the reasons why [fighting words] are outside the First Amendment … have special force when applied to [groups that have historically been subjected to discrimination].”

To avoid the result of its own analysis, the Court suggests that fighting words are simply a mode of communication, rather than a content-based category, and that the St. Paul ordinance has not singled out a particularly objectionable mode of communication. Again, the majority confuses the issue. A prohibition on fighting words is not a time, place, or manner restriction; it is a ban on a class of speech that conveys an overriding message of personal injury and imminent violence, a message that is at its ugliest when directed against groups that have long been the targets of discrimination. Accordingly, the ordinance falls within the first exception to the majority’s theory…

… the majority [also] concocts a catchall exclusion to protect against unforeseen problems, a concern that is heightened here given the lack of briefing on the majority’s decisional theory. This final exception would apply in cases in which “there is no realistic possibility that official suppression of ideas is afoot.” As I have demonstrated, this case does not concern the official suppression of ideas. The majority discards this notion out of hand…

II

Although I disagree with the Court’s analysis, I do agree with its conclusion: The St. Paul ordinance is unconstitutional. However, I would decide the case on overbreadth grounds…

Of course, the mere presence of a state court interpretation does not insulate a statute from overbreadth review…

I agree with petitioner that the ordinance is invalid on its face. Although the ordinance as construed reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that—however repugnant—is shielded by the First Amendment…

Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected… In the First Amendment context, “[c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.”  The St. Paul antibias ordinance is such a law…

III

Today, the Court has disregarded two established principles of First Amendment law without providing a coherent replacement theory. Its decision is an arid, doctrinaire interpretation, driven by the frequently irresistible impulse of judges to tinker with the First Amendment. The decision is mischievous at best and will surely confuse the lower courts. I join the judgment, but not the folly of the opinion.

JUSTICE BLACKMUN, concurring in the judgment.

I regret what the Court has done in this case. The majority opinion signals one of two possibilities: It will serve as precedent for future cases, or it will not. Either result is disheartening.

In the first instance, by deciding that a State cannot regulate speech that causes great harm unless it also regulates speech that does not (setting law and logic on their heads), the Court seems to abandon the categorical approach, and inevitably to relax the level of scrutiny applicable to content-based laws. As JUSTICE WHITE points out, this weakens the traditional protections of speech. If all expressive activity must be accorded the same protection, that protection will be scant. The simple reality is that the Court will never provide child pornography or cigarette advertising the level of protection customarily granted political speech. If we are forbidden to categorize, as the Court has done here, we shall reduce protection across the board. It is sad that in its effort to reach a satisfying result in this case, the Court is willing to weaken First Amendment protections.

In the second instance is the possibility that this case will not significantly alter First Amendment jurisprudence but, instead, will be regarded as an aberration—a case where the Court manipulated doctrine to strike down an ordinance whose premise it opposed, namely, that racial threats and verbal assaults are of greater harm than other fighting words. 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. If this is the meaning of today’s opinion, it is perhaps even more regrettable.

I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns, but I see great harm in preventing the people of Saint Paul from specifically punishing the race-based fighting words that so prejudice their community…

The majority opinion in R.A.V. made it difficult to design a hate speech code that could withstand constitutional scrutiny. A law that carved out particular protected classes or types of hate speech risked being found underinclusive or content-based, just as St. Paul’s statute was. A law that attempted to ban all fighting words “neutrally”—beyond the narrower unprotected categories of true threats or harassment—would risk being overbroad or relying on some standard of offensiveness that Cohen suggests is also unconstitutional.

R.A.V. is not the final word on the intersection of hate speech and the First Amendment. Only a year after R.A.V. was decided, the Court unanimously upheld Wisconsin’s hate crime sentencing enhancements, which lengthened sentences for crimes where the victim was selected because of their race. States had longstanding discretion to adjust sentencing based on the impact a crime had on the community, the Court held in Wisconsin v. Mitchell (1993), and Wisconsin was within its authority to hold that hate crimes would have disproportionately negative impacts. In 2003, the Court ruled in Virginia v. Black that cross-burning could be proscribed and punished, even on private property, as long as the state could prove to a jury the act was a threat and not merely expression (even though the law in question singled out cross-burning specifically).

Nevertheless, the combination of Cohen and R.A.V. has in practice shrunk the category of fighting words to include almost no speech. While the category has never been formally abolished, speech that in the past might have been deemed fighting words will today either fall into a different unprotected category (such as true threats or harassment) or be considered protected speech. Outside of intricately crafted legal hypotheticals unlikely to occur in real life, fighting words convictions are more or less impossible to secure and are seen as not worth the trouble by prosecutors.