You might have thought Monday's Supreme Court ruling on government laws against hate crimes was going to be clear and concise -- especially with all nine justices voting the same way. If the vote goes 9-0, one assumes all justices agreed on the major points and had a nice lunch together. And with such unanimity in the black robes, how could the law of the land not be absolutely explicit?
In its ruling, the court struck down as unconstitutional a St. Paul, Minn., city ordinance that banned cross-burnings, spray-painted swastikas and other forms of hate speech and symbolism.
I was not surprised to hear the court had voted this way. With few exceptions, the court does not restrict freedom of expression, no matter how repugnant that expression might be. If the Supreme Court could rule in favor of the pyro-punkers who burn the American flag as a form of protest, how could it not accord the same protection to those who would burn a cross as a way to express hatred?
But it's not that simple. Far from it.
Though the vote to declare the St. Paul ordinance unconstitutional was unanimous, the court split, 5-4, on the reasons why. So we have an argument within an agreement.
One part of the court seemed to say that all kinds of hatred expression can be protected under the First Amendment, but certain kinds cannot be. Another side seemed to say that, while all kinds of hatred expression cannot be protected, certain kinds should most definitely be.
Confused? Welcome aboard.
Let's rumble through the mumbo-jumbo:
Justice Antonin Scalia, writing for the majority, said the St. Paul ordinance is unconstitutional because it is too specific. It criminalizes only expression that communicates messages of "racial, gender or religious intolerance." It doesn't ban gay-bashing, for instance, and Scalia, ironically, presented that as evidence of the St. Paul ordinance's narrow scope. The banning of vicious expression so selectively "creates the possibility that the city is seeking to handicap the expression of particular ideas." The First Amendment forbids government from being that specific. In a way, Scalia said the ordinance didn't go far enough, though he probably didn't want it to go far at all.
Still confused? Wait till you hear from Justice Byron White.
While agreeing with Scalia et al. that the St. Paul ordinance was unconstitutional, he disagreed with this reasoning. White found the ordinance "fatally overbroad." If St. Paul would only narrow its focus, he said, the city could have a constitutionally sound ordinance.
"Fighting words are not a means of exchanging views, rallying supporters or registering a protest," White wrote. "They are directed against individuals to provoke violence or to inflict injury. Therefore, a ban on all fighting words or on a subset of the fighting words category [my emphasis] would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace."
In other words, we have the right, as a civilized democracy, to ban certain forms of expression that are nothing but "fighting words" that do nothing but convey racial, ethnic and religious hatred. Hate speech from the Ku Klux Klan or Skinheads, spray-painted swastikas on synagogues -- these are expressions of violence; they are not ingredients of constructive debate, or even public discussion. (Though I know a few million Americans who would say the same thing about flag-burning, which further confuses the issue before us.)
Threatening someone because of his race or religion -- driving a black family from its home with a cross-burning -- these are forms of hate expression that hurt people, even set off riots. Special crimes require special rules, and probably special punishment.
Scalia and the conservative majority disagreed. We can't ban some forms of hate expression, they said, and not others.
So we're left with a mixed message at best.
In Maryland, we have a law that addresses cross-burnings, in a roundabout way, which seems to be the only way to go. If you want to burn a cross on someone's lawn here, you have to get the homeowner's permission and you have to get a permit from the local fire department. While technically the result is the same -- assuming that no one will ever get permission to burn a cross in Maryland -- the path to the good intention has a big curve in it. It curves right around the issue -- that specific threats made to hate-crime victims and acts against them ought to be treated as hate crimes and banned as hate crimes. There's no question what the point of a burning cross or spray-painted swastika is. The Supreme Court, unfortunately, seems to think it's still open to interpretation.