Supreme Court upsets curbs on hate speech Justices vote 9-0 to strike down cross-burning ban

June 23, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau Staff writer James M. Coram contributed to this article.

WASHINGTON -- In a celebrated case over a cross-burning on a black family's lawn, the Supreme Court yesterday appeared to take away almost all the government's power to outlaw messages of hate in speech or symbolic gesture.

Citing free speech rights but widely split on their approach, the justices voted 9-0 to strike down a St. Paul, Minn., ordinance that banned cross-burning, Nazi swastika displays and other expression of racial supremacy and bias.

The 4-year-old ordinance was used against a white teen-ager for burning a crude homemade cross in the yard of a neighbor -- a black family -- in June 1990.

The decision apparently lays down the constitutional law that will govern the campaign on college campuses and elsewhere to forbid or punish expression that is considered "politically incorrect." Efforts to curb remarks or conduct attacking blacks, women or religious minorities, especially Jews, appeared to be in deep constitutional trouble after the new ruling.

The ruling also casts serious doubt about so-called "hate crime" laws adopted in Maryland and about 45 other states. Maryland prohibits burning a cross "or other religious symbol" on anyone's property.

The court did not say that anyone has a constitutional right to burn a cross. In fact, it said that state and local government may use a wide variety of other laws to punish cross-burning -- but not the message conveyed by that gesture.

"St. Paul," Justice Antonin Scalia wrote, "has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."

Justice Scalia, who read animatedly for five minutes from the court's main opinion as he announced the result, outlined a historic and sweeping new view of the free-speech clause in the First Amendment.

Even though the court had often ruled that state and local government may outlaw "fighting words," on the theory that they have little or no social value, the Scalia opinion declared it unconstitutional to use that power to single out and punish only those particular "fighting words" that happen to offend government officials.

Laws like the St. Paul ordinance, that opinion made clear, should be struck down whenever they reflect a "realistic possibility that official suppression of ideas is afoot."

To illustrate the scope of the ruling, Justice Scalia wrote that the federal government could make it a crime to threaten the president but not to criminalize only those threats against the president because of a particular policy.

The St. Paul ordinance, he said, outlaws only specific "fighting words"-- that is, those that insult, or provoke violence, on the basis of race, color, creed religion or sex. He added: "The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects."

The four justices who refused to go along with the Scalia approach made it clear that they would vote to uphold some so-called "hate speech" laws, so long as they did not take the St. Paul approach.

"In light of our nation's long and painful experience with discrimination," it is "plainly reasonable" for government to move to outlaw fighting words based on race, religion or sex, those justices said in an opinion written by Justice Byron R. White.

Those justices denounced the Scalia majority for engaging in what they called "radical revision of First Amendment law."

Although the majority had indicated it was forbidding only the selective ban on some fighting words, based on a particular message conveyed, the four other justices said that in reality the majority opinion could authorize the government to go all the way to outlaw all forms of fighting words just to be able to get at the ones that were disapproved.

Justice Scalia's majority opinion had the support of Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, David H. Souter and Clarence Thomas.

The four who would not endorse that reinterpretation of the First Amendment were Justices White, Harry A. Blackmun, Sandra Day O'Connor and John Paul Stevens.

Maryland's anti-cross-burning statute should survive the decision, Attorney General J. Joseph Curran Jr. said.

"The Maryland law is substantially different" from the St. Paul ordinance, "although it arrives at the same result," Mr. Curran said.

Maryland's law does not limit free speech, Mr. Curran said. "It protects property and it protects persons." Under Maryland law, a person planning a cross-burning would have to get permission from the property owner and notify the fire department, Mr. Curran said.

Mr. Curran said he had not yet read the court's 86-page opinion on the case, but was basing his opinion on the court's syllabus. But he has been following the case, and last June issued an advisory opinion to a state legislator in which he "concluded that Maryland would still be OK" regardless of how the Supreme Court decided the St. Paul case.

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