WASHINGTON -- The Supreme Court took its first look yesterday at the use of criminal prosecution to stop protests that are not "politically correct" and did not appear to like what it saw.
In an hourlong hearing on the first modern case involving attempts to stamp out "hate crime," several of the justices reacted negatively as a lawyer for the city of St. Paul argued that local governments should be allowed to single out specific kinds of "bias-motivated" expression they especially want to curb.
The case before the justices is a sequel to the court's controversial rulings providing constitutional protection for flag-burning as a form of political protest. This time, the issue is the constitutionality of using criminal laws to punish someone for burning a cross on the lawn of a black family living in a white neighborhood.
At issue is the constitutionality of a St. Paul, Minn., ordinance making it a crime to put a burning cross on private property if it will cause anger or alarm on the basis of race. The ordinance also outlaws the use of other "hate" symbols keyed to religion and sex.
When the court's final ruling emerges, sometime next year, it is expected to provide constitutional guidance on the effort that appears to be spreading widely -- particularly on college campuses -- to use government power to discipline or punish "politically incorrect" speech. Generally, that phrase refers to comments or actions that malign blacks, Jews and other minorities, and women.
At one point in yesterday's hearing, Justice Antonin Scalia remarked that "it seems to me" that St. Paul's lawyer was advocating "the rankest kind of discrimination" between ideas, in an effort to suppress only certain forms of bias in public expression.
Thomas J. Foley of St. Paul, Ramsey County attorney and the city's defender in the case, contended that cross-burning was "a cancer on society" and that cities should be allowed to single it out for punishment.
"Bias-motivated crimes," Mr. Foley contended, "have a particularly devastating effect on victims, and on all members of the particular minority" targeted by those crimes.
He agreed with a suggestion by Justice Scalia that the city ordinance would not apply if someone put up a sign on his own lawn saying "Mentally Ill Out!" after a family with a mentally ill child moved onto the street, or after a mental hospital was set up in the neighborhood.
Justice David H. Souter said that the city lawyer was, in effect, asking the court to "make new law" under the First Amendment free-speech clause because the court generally has not allowed governments to choose the kinds of expression or speech they will ban or regulate.
The city law was challenged by St. Paul lawyer Edward J. Cleary, who represents an 18-year-old youth facing criminal charges for three incidents of cross-burning in June 1990 after a black family had come into a white neighborhood. One of the crosses was burned in that family's fenced yard.
Mr. Cleary said the cross-burnings were "reprehensible and abhorrent." But, he argued, the case was a test of whether "there is room for the freedom of thought we hate . . . the opinion we loathe."