Does the First Amendment to the Constitution protect the right to burn a cross, Ku Klux Klan style, in a black American's yard? We thought not. Freedom of speech is cherished, but no one has ever convincingly argued that it is an absolute right. False and damaging accusations are not protected by the First Amendment, nor is child pornography, nor until now so-called "fighting words." That is speech conveying a threatening message of imminent harm and violence. The Supreme Court enunciated its fighting words doctrine exactly 50 years ago. This week in a narrow 5-4 opinion the court in effect overturned that doctrine.
It did so in a case from St. Paul, Minn. A city ordinance forbids hate crimes -- which it defines as acts or speech that "arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." All nine Supreme Court justices agreed that this ordinance was invalid. But for four the reason was basically that it criminalizes too many things. For example, causing "resentment" is not a valid reason for a state to outlaw a form of speech. In First Amendment jurisprudence, laws are subjected to "strict scrutiny" to see if the state has an important reason for limiting speech.
But the court's narrow majority, led by Justice Antonin Scalia, went beyond this simple conclusion and justified its reasoning in an alarming way. Justice Scalia said a law could not forbid any form of hate speech including fighting words unless it banned all forms. He said the St. Paul ordinance was unconstitutional because it protected only those attacked on the basis of their "race, color, creed, religion or gender." This left out homosexuals, union members and Republicans and Democrats, he said, thus it was selective regulation of the content of speech.
Well, yes. But Justice John Paul Stevens gave the proper assessment of that silliness: "Conduct that creates special risks or causes special harms may be prohibited by special rules. Lighting a fire near an ammunition dump . . . is especially dangerous; such behavior may be punished more severely than burning trash in a vacant lot. Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot . . . Such threats may be punished more severely than threats against someone based on, say, his support of a particular athletic team."
Given this nation's history of racial strife and terror, it is not a good idea in effect to ban all provocative hate crime laws of the fighting words category. Yet by its insistence that hate crime laws apply so widely across the board, this decision may produce that result. In addition to "strict scrutiny," another principal element of First Amendment jurisprudence is that speech bans not be "over-broad." If St. Paul and other jurisdictions rewrite anti-hate ordinances to include speech or acts not related to a limited list of specifics such as "race . . . gender" etc., judges looking to other precedents may well rule that that is unconstitutional, too.