• Last updated on November 11, 2022

The Supreme Court ruled that a city’s hate speech ordinance violated the First Amendment because it discriminated on the basis of the content of the speech.

Responding to a perceived increase in hate speech, many states, communities, and universities in the 1990’s passed ordinances outlawing expressions of hatred. St. Paul, Minnesota, passed an ordinance making it a misdemeanor to display a symbol such as a burning cross or a Nazi swastika with the intent of arousing anger or fear “on the basis of race, color, creed, religion, or gender.” After Robert A. Viktora and other white teenagers burned a cross on the lawn of the only black family in the neighborhood, the teenagers were prosecuted under the city’s ordinance. The Minnesota supreme court upheld the ordinance, interpreting the document as a prohibition on the use of fighting words, which were not protected by the First Amendment.Symbolic speech;R.A.V. v. City of St. Paul[RAV v. City of St. Paul]

By a 9-0 vote, the Supreme Court reversed the judgment. Writing for a majority of five, Justice Antonin ScaliaScalia, Antonin;R.A.V. v. City of St. Paul[RAV v. City of St. Paul] emphasized that the First Amendment generally prevents government from proscribing speech and expressive conduct because of disapproval of the ideas expressed. He argued that the ordinance contained “viewpoint discrimination” when it proscribed messages of racial hatred and especially messages “based on virulent notions of racial supremacy.” The point of the First Amendment, he noted, “is that the majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.” Justice Byron R. White, speaking for four justices, found that the ordinance was unconstitutionally overbroad because it criminalized expressive conduct that “causes only hurt feelings, offense, or resentment.”

With the R.A.V. decision, it is difficult to see how hate speech legislation might be made to conform to constitutional standards. Conduct is another matter. St. Paul could have prosecuted Viktora and his friends with antitrespass laws. In Wisconsin v. Mitchell[case]Wisconsin v. Mitchell[Wisconsin v. Mitchell] (1993), the Court approved of extra punishments for those found guilty of crimes motivated by racial hatred.

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