In order to prepare for class you may wish to read each case carefully and take notes in the form of a case brief.
1. Citation. R.A.V. v.
2. Constitutional Provision. First Amendment as applied to the states through the Fourteenth Amendment.
3. Constitutional Question. May a city pass an ordinance prohibiting an action that angers or alarms a person on account of race, color, creed, or gender?
4. Decision. No. Case reversed and remanded.
5. Facts. Robert A. Viktora, a white teenager, and several other white youths were arrested for burning a cross after midnight on the lawn of the only black family in a St. Paul neighborhood in violation of the St. Paul, Bias-Motivated Crime Ordinance, which made it a crime for a person to place on public or private property a burning cross, swastika, or other symbol that he knows or is likely to know will arouse "anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender."
7. Requested Action. Viktora appealed that the state supreme court be overruled and the ordinance be declared unconstitutional on grounds that it was overbroad and prevented free expression guaranteed by the First Amendment as applied to the states by the Fourteenth Amendment.
8. Vote. 9-0.
9. Opinion of the Court Written by. Scalia.
10. Joined by. Rehnquist, Kennedy, Souter, Thomas.
11. Rule of Law. A city may not prohibit expression of particular
ideas on the basis of the subjects the speech addresses. It may prohibit all
fighting words or even single out "especially offensive mode of
expression," but it may not proscribe particular "messages of racial,
gender, or religious intolerance." "
12. Reasoning. The ordinance is prohibited because it applies only to
those fighting words that insult or provoke violence against persons based on
"race, color, creed, religion or gender." For example, government may
prohibit libel but not libel that is only critical of one group or another. The
ordinance does not prohibit fighting words, for example, those that might
express hostility on the basis of partisanship, union membership, or sexual
orientation. Since there are other ways to achieve
13. Concurring Opinion Writer. White.
14. Joined by. Blackmun and O'Connor and partly by Stevens.
15. Reasoning. The Court's reasoning is flawed because it is
confusing, it doesn't work, and it attempts to rewrite First Amendment law
rather than decide the case upon settled principles. The ordinance should be
struck down because it is fatally overbroad. It prohibits some unprotected
speech but also infringes upon some protected speech. It is unnecessary and unwise
to invent a new ³underbreadth² test of unconstitutional speech, which
has not been addressed by briefs submitted to the Court. Symbolic fighting
words that are directed against individuals to provoke violence or inflict
injury rather than to exchange views, rally supporters, or register a protest
are already prohibited by our precedents. Also, our precedents lead us to use a
strict scrutiny test of governmental acts that infringe upon fundamental
rights, rather than requiring a city to "regulate problems that do not
exist" or not regulate at all. If Congress can pass a law to prohibit
threats against the President,
16. Other Concurrence. Blackmun.
17. Reasoning. The Court should have stuck down the ordinance on the grounds of overbreadth rather than relaxing the level of scrutiny applicable to content-based law and apparently leaping to the issue of "politically correct speech" and "cultural diversity," which is not presented here.
18. Other Concurrence. Stevens and partly by White and Blackmun.
19. Reasoning. The Court's new doctrine that fighting words cannot be prohibited on the basis of their content is unwise and unsound. Much of our jurisprudence is based on content, context, and the nature of the restriction (such as prior restraint). For example, we allow regulation of "misleading" advertising, of "indecent" words, of "adult" movie theatres, and of "child" pornography. Further, we have established a hierarchy where protection is extended to political speech above commercial speech and to commercial speech above sexually explicit material. In addition, we have given greater protection to writing and speech than to expressive conduct. If the ordinance were not overbroad, I would uphold it.
20. Dissenting Opinion Writer.
21. Joined by.
22. Reasoning.
23. Other Dissent.
24. Joined by.
24. Reasoning.
25. Precedents. Cantwell v.
26. Progeny.
27. Bibliography. Schauer, 1981. "Categories and the First Amendment: A Play in Three Acts" 34 Vanderbilt Law Review 265.