WASHINGTON -- The Supreme Court yesterday unanimously struck down a St. Paul, Minn., ordinance prohibiting hate speech, but did not give municipalities much guidance on what can be banned.
The court's ruling in the case, R.A.V. v. City of St. Paul, has been eagerly awaited in part because of its implications for municipal autonomy, but also because of the steady growth of campus speech codes and laws banning speech deriding people on the basis of their ethnicity gender or religious beliefs.
But a sharply divided court splintered 5 to 4 over the proper legal standard to use in deciding the case, providing municipalities with little guidance. Moreover, the court majority appears to have charted a new approach to deciding when laws violate the Constitution's First Amendment, which among other things guarantees free speech.
"This is a very thin slicing of First Amendment jurisprudence, which already was sliced very thinly," said Bernard James, a professor at the Pepperdine University School of Law. "Confusion is bound to result. It's going to be very difficult for elected officials, and maybe even the lawyer retained to give them advice, to say with certainty what can be prohibited and what cannot."
The ordinance in question makes it a misdemeanor to put up on public or private property symbols that "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." The ordinance specifically prohibits cross burnings and Nazi swastikas.
The court's five-member majority, in an opinion delivered by Justice Antonin Scalia, said the St. Paul law is unconstitutional because it penalizes only speakers who express views on certain subjects.
"Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics," Justice Scalia wrote.
"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," he said. "The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects."
According to the court majority, the law is "underinclusive." Justice Scalia said that under the St. Paul law, "One could hold up a sign saying ... 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.'"
Justice Scalia concluded, "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."
But Justice Byron R. White said the court majority had unnecessarily charted new territory in First Amendment law. "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," he said.
Instead, Justice White said, the court is now requiring that governments wishing to criminalize some kinds of hateful speech will have to criminalize all hateful speech.
Justice White said, "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 outweight the social interest in order and morality that has traditionally placed such fighting words outside the First Amendment.
"Indeed," Justice White said. "By characterizing fighting words as a form of 'debate,' the majority legitimates hate speech as a form of public discussion."
Justice Harry A. Blackmun and Justice John Paul Stevens also wrote separately to indicate their displeasure with the court majority's rationale, but concluded along with Justice White that the St. Paul law was overbroad.
Justice Scalia countered for the majority: "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."
Mr. James said it is difficult to ascertain whether the court's ruling marks a true departure from past First Amendment law or is an aberration. "Does the court really mean this?" he asked rhetorically. "Or is the court looking for something that tastes good now and that it hopes tastes good later?"
He said the ruling appears to tell municipal officials that "fighting words" are protected by the First Amendment and may be regulated only if the laws proscribing the speech are viewpoint neutral.