In a ruling that cast doubt on the constitutionality of the nation’s “hate crime” laws, the Supreme Court on Monday struck down a St. Paul, Minn., ordinance that punishes those who burn crosses, display swastikas or otherwise express religious and racial hatred.
The high court--in a decision reminiscent of its 1989 ruling that knocked down laws prohibiting the burning of an American flag--used the case of a 17-year-old skinhead to issue a sweeping defense of the right to free expression.
The government cannot punish those who “communicate messages of racial, gender or religious intolerance” simply because such ideas are offensive to most and deeply hurtful to some, the court said.
The First Amendment forbids “silencing speech on the basis of its content,” wrote Justice Antonin Scalia.
The broad wording of his opinion would appear to invalidate all manner of laws enacted to punish expressions of bigotry and racial hatred.
In recent years, 46 states, including California, have put into effect measures that make it a crime to burn crosses, display Nazi emblems or otherwise convey bias and hatred. Some 200 colleges and universities have followed suit with codes of conduct that discipline those whose words or actions convey racist, sexist or religious intolerance.
The “hate speech” issue has prompted anguished debate among civil libertarians and advocates of rights for blacks, women and other minorities. While some have applauded such laws as protecting victims of bias, others have criticized them for enforcing a new “political correctness” on controversial topics.
Scalia’s opinion, speaking for the most conservative members of the court, seems to side with the critics.
As a practical matter, however, the court left officials with ample authority to attack most hate crimes.
For example, the juvenile who burned a cross in the front yard of a black family’s home in St. Paul could be charged with arson, trespass or criminal damage to property, the court said. Similarly, the anti-Semite who paints a swastika on a school wall can be punished for defacing public property.
But they cannot be punished simply for expressing a loathsome message, the court said.
“Let there be no mistake about our belief that burning a cross in someone’s yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire,” Scalia said.
City officials and the black victims of the cross-burning incident voiced dismay at the ruling.
“I’m frustrated, disappointed and increasingly angry at the message that the decision will send out,” said Ramsey County Atty. Tom Foley, who defended the city’s law before the Supreme Court.
“It wasn’t just a hateful act, it was a crime against us,” said Laura Jones, whose husband, Russell, and five children had recently moved to the mostly white working-class neighborhood of St. Paul.
On the night of June 21, 1990, Robert A. Viktora and several friends taped together the wooden legs of a broken chair into a cross and set it afire within the enclosed yard of the Jones’ home.
Viktora, who is now 19, was charged with violating the city’s Bias-Motivated Crime Ordinance. This 1989 measure made it a misdemeanor to “place on public or private property” a symbol such as a burning cross or a Nazi swastika that will “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”
Before he could be tried, attorneys for Viktora challenged the law as unconstitutional. The Minnesota Supreme Court upheld the measure but only after interpreting it to apply only to what are known as “fighting words.”
This phrase emerged from a 1942 Supreme Court opinion that has been ignored but never overruled. It says that the First Amendment does not protect words that would “inflict injury or tend to incite immediate violence.”
But the teen-ager’s lawyers appealed, and the justices heard the case (RAV vs. St. Paul, 90-7675), to make their first pronouncement on the hate speech issue.
All nine justices voted to strike down the St. Paul law, but they differed on the reasons for doing so.
Four members of the court--Justices Byron R. White, Harry A. Blackmun, Sandra Day O’Connor and John Paul Stevens--said that the city law was unconstitutional because it was not focused narrowly on expressions that could prompt violence.
Five other justices, who made up a majority, went further and said that any law is unconstitutional if it singles out “bias-motivated hatred” for special punishment. Joining Scalia in the majority were Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, David H. Souter and Clarence Thomas.
In recent years, several conservative members of the court, notably Justices Kennedy and Scalia, have emerged as strong defenders of the right to free speech.
But Monday’s ruling marked a particularly unusual lineup. While the most conservative justices took the broadest stand in behalf of free expression, the more liberal justices denounced them for going too far.
“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,” said the 83-year-old Blackmun, a native of St. Paul.
The ruling also prompted an unusual split between allies. For example, the American Jewish Congress said that it welcomed the ruling for its strong affirmation of the right to free speech, but the Anti-Defamation League of B’nai B’rith called it “troubling.”
“Justice Antonin Scalia’s opinion sweeps aside decades of First Amendment precedent and leaves the parameters of permissible speech unsettled,” said Abraham H. Fox, ADL national director.
The American Civil Liberties Union had represented the 17-year-old cross burner and argued that broadly worded hate crime laws are unconstitutional. But People for the American Way, which usually agrees with the ACLU, argued that these laws should be upheld.
Under California law, it is a crime, punishable by up to one year in jail or a $5,000 fine, if “any person . . . burns or desecrates a cross or other religious symbol . . . or places a sign, mark, symbol, emblem or other physical impression, including but not limited to a Nazi swastika, on the private property of another . . . for the purpose of terrorizing.”
Most First Amendment experts who read Scalia’s opinion Monday said that they believe it will make this sort of law unconstitutional.
“It seems to invalidate all of these bias-motivated hate laws. I think they’re gone,” said Pepperdine University law professor Bernard James.
Many California prosecutors agreed, however, that the ruling is not likely to undermine their efforts to convict perpetrators because the state’s cross-burning law is more narrowly drawn than the St. Paul ordinance.
Special correspondent Rhonda Hillbery in St. Paul contributed to this story.
CALIFORNIA IMPACT: Prosecutors said the decision is not likely to thwart their efforts against hate crimes. A18
Rise in Hate Crimes
Hate crimes in Los Angeles County have risen dramatically in the past five years. Following are the numbers of hate crimes recorded based on race, religion and sexual orientation:
Sexual Year Race Religion Orientation 1987 79 115 1988 95 111 61* 1989 167 125 86 1990 275 150 125 1991 351 150 169
* first year recorded
Source: L.A. County Human Relations Commission