High court to review hate crime First Amendment invoked in appeal

June 11, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court stepped yesterday into the middle of the deepening national controversy over so-called "hate crimes," agreeing to decide whether the Constitution protects burning a cross in a black family's yard.

The court acted against a background of rising efforts by state and local governments as well as college administrators to stamp out public remarks or conduct deemed hostile to minorities -- blacks and Jews especially -- and to women.

In reviewing a St. Paul, Minn., ordinance against cross-burning, the justices will be taking their first look at a modern version of laws designed to enforce "politically correct" standards of expression.

The new case is expected to put the court back into the kind of controversy it stirred up when it ruled that burning the American flag as a form of protest was a constitutional right.

Last year and the year before, the court drew angry protests from Congress when it first struck down, in 1989, a state law against flag-burning and then, a year later, nullified Congress' own attempt to protect the flag by federal law.

Protecting the flag from "desecration" has long been a fixture of state and federal law. In the past few years, nearly as much controversy has arisen over laws that seek to outlaw provocative displays of burning crosses, hoods and robes of the Ku Klux Klan, the Nazi swastika, or the Confederate flag, and provocative speech in the form of racial, ethnic or sexual slurs.

Maryland is one of the increasing number of states or cities to pass such "hate crime" laws, as they are usually called. Under the Maryland law, first adopted in 1966, it is a crime to burn "any cross or other religious symbol" on public or private property without the property owner's express consent and without first telling the local fire department.

Those convicted of violating the Maryland law face up to three years in prison and a fine of $5,000.

An 18-year-old St. Paul youth, Robert A. Viktora, an unemployed dishwasher and mechanic, took the first modern "hate crimes" case to the Supreme Court to challenge the constitutionality of a city ordinance used against him. That law, adopted in 1989, makes it a misdemeanor to burn a cross or display a Nazi swastika in a public or private place, if that will arouse "anger, alarm, or resentment" based on race, religion or sex.

Mr. Viktora and other youths were accused of burning three crosses -- the first one on the lawn of the only black family living in a St. Paul neighborhood, another across the street from that home, and the third in a nearby parking lot of an apartment where several blacks lived.

One youth pleaded guilty, but Mr. Viktora, who has not been brought to trial in the case, challenged the constitutionality of the St. Paul ordinance, contending that it interfered with his constitutional right of free expression under the First Amendment. The Minnesota SupremeCourt ruled last January that state and city governments may pass such laws to forbid burning a cross, if such laws are confined to banning cross-burnings in circumstances that may lead to "imminent lawless action."

In the Viktora appeal to the U.S. Supreme Court, his lawyer, Edward J. Cleary of St. Paul, argued that there has lately been a "nationwide effort to legislate racial, ethnic and religious sensitivity," resulting in "unprecedented prohibitions on expressive conduct that jeopardize . . . freedom of speech."

The final decision by the Supreme Court on the case, sometime next year, is expected to provide some basic guidance on how far government may go to regulate speech or "expressive conduct" that may stir up racial, ethnic or sexual hatred. The case is R.A.V. vs. St. Paul (No. 90-7675).

The court also took action yesterday on another case involving free expression. This time, the justices bypassed the controversy. They voted to leave intact a lower-court ruling that permits city governments to pass laws requiring the wearing of "proper" dress on public streets.

Matthew J. Duyck, an artist living on New York's Long Island, had pleaded guilty for going without a shirt on a street in Southampton. He did so as a protest to an ordinance forbidding men or women from appearing topless on public streets.

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