Michele M. Simmsparris
Excerpted from, What Does it Mean to See a Black
Church Burning? Understanding the Significance of Constitutionalizing
Hate Speech, 1 University of Pennsylvania Journal of Constitutional Law
127-151 (Spring 1998) (Citations and Footnotes Omitted)
III. The R.A.V. Decision
A. Constitutionalizing Hate Speech: Where Law and Principles Collide
One month after the acquittal of four police officers in the racially
biased beating of Rodney King, the Supreme Court handed down its
decision in R.A.V. v. City of St. Paul. In a unanimous result, the Court
held that the St. Paul Bias Motivated Crime Ordinance which prohibited
cross burning, was constitutionallyinvalid. The Minnesota statute
Whoever places on public or private property a symbol, object,
appellation, characterization, or graffiti, including but not limited
to, a burning cross or Nazi swastika, which one knows or has reasonable
grounds to know arouses anger, alarm or resentment in others on the
basis of race, color, creed, religion, or gender commits disorderly
conduct and shall be guilty of a misdemeanor.
Justice Scalia, writing for a majority of the Court, concluded that
the ordinance unconstitutionally proscribed certain types of speech,
here hate speech, on the basis of its content. The Court's cursory
examination and understanding of the messages relayed through cross
burning and church burning laid a poor foundation for the reasoning that
was used to decide R.A.V.
In R.A.V., the Court concluded that, "the ordinance [was]
facially unconstitutional in that it prohibit[ed] otherwise permitted
speech solely on the basis of the subjects the speech address[ed]."
In its assessment of what made the ordinance invalid, the Court
neglected to carefully consider what exactly the ordinance was
invalidating. Unlike most other forms of speech, racially motivated hate
speech, like cross burning, is harmful speech. First Amendment
jurisprudence reveals numerous examples of the regulation of harmful
speech. Although the First Amendment prevents government from regulating
speech because of the ideas it expresses, and "content-based
regulations are presumptively invalid," R.A.V. disappoints all who
look to the Court to resolve the tension between the social value of
free speech and the social harm of hate speech.
In R.A.V., the Court failed to understand that the prohibition of
cross burning in St. Paul was not simply an infringement of the
expression of a politically debatable idea. Rather, the prohibition of
cross burning, in this case, was a protection against the infringement
of the civil rights of all citizens, by protecting public safety and
order. In Cox v. New Hampshire, the Court held that, "civil
liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself
would be lost in the excesses of unrestrained abuses."
When Robert Viktora and his friends constructed and burned a cross on
the front lawn of a Black family that lived across the street, they were
clearly breaching any public order and peace that may have existed. The
burning of the cross exemplified the abusive level to which racially
motivated hate speech may rise and the dangers of physical destruction
which accompany such speech. The actions of Viktora and his associates
were not simply a meaningless prank. In this case, the culprits chose
not only to burn a cross on any family's lawn, but they chose to burn
that cross on the lawn of a Black family. Their actions were meaningful.
Like the centuries of lynchings of Black men, women, and children, and
the decades of burning Black churches across the country, Robert
Viktora's burning cross was a profound expression of malevolence, one
which has often stood as a promise of doom to millions of
Despite the fact that the St. Paul Bias Motivated Crime Ordinance was
designed to address the problems historically associated with hate
speech, the majority found that the danger of censorship was greater
than the state's interest in protecting its minority citizens. Even
though the Court makes censorship an important issue here, it is not the
most critical one. The most crucial issue, which the Court failed to
understand and deal with appropriately, was the harm traditionally
associated with racially motivated fires. It is the danger of the
destruction which predictably follows such conflagration that justifies
that it be regulated on the basis of its content.
When persons are terrorized or even killed because others hate their
race, the threat to life far outweighs the threat of censorship. In
R.A.V., the burning cross served as the instrument of harm and the
embodiment of terror. The expression of racial hatred that a burning
cross conveys becomes nothing more than the skin in which terrorist acts
are cloaked. The majority mistakes the skin of cross burning, as a form
of expression, for substance and thus allows itself to theorize away the
irreparable harm inflicted on the objects of such acts of terror.
The Justices themselves provided several reasons as to why its
content-based argument falls on its face. First, the First Amendment is
a content-based amendment. As Justice Stevens so aptly points out in his
concurrence, "our entire First Amendment jurisprudence creates a
regime based on the content of speech." In order to determine if a
form of expressive activity ought to be protected by the First
Amendment, not only does the Court have to look at what is said, but the
Court must also consider how, when, and where the expression is made.
Therefore, content analysis implies contextual analysis.
Should a form of speech fall within or outside of this rule the court
would have to categorize that speech based on its content. Clearly it is
not enough to say that speech is proscribable, because someone is
expressing herself or himself. It is the "what" and the
"how" of that expression which triggers the First Amendment.
Justice Scalia concedes that some "statements must be taken in
context." Racial hatred which inspires violence suggests that such
hate speech should be fairly included in the proscribable category of
fighting words. The Court has shown through its precedents clear
instances in which the content of some forms of speech have been
evaluated and judged unworthy of constitutional protection. It is more
than reasonable that racially motivated hate speech such as cross
burning should be added to that list.
Secondly, in order to determine whether speech falls into a protected
or unprotected category, the Court has to evaluate the content of the
speech. Thus strangely the Court submits itself to the content valuation
process that it is claiming to reject. Even more odd, despite the
centrality of content valuation to supporting the Court's analysis and
final judgment, it is on this point that the Justices diverge in
According to Justice Stevens' separate concurrence, "the Court
believes [[[that] all content-based regulations are equally infirm and
presumptively invalid," a theory Stevens rejects. Instead he
contends that "our decisions establish a more complex and subtle
analysis, one that considers the content and context of the regulated
speech, and the nature and scope of the restriction on speech."
Therefore, in support of the premise that First Amendment jurisprudence
rests on content analysis, Justice Stevens writes, "whether a
magazine is obscene, a gesture a fighting word, or a photograph of a
child pornography is determined, in part, by its content." Even
Justice Scalia must admit that in order to argue that the cross burning
in R.A.V. was a type of speech protected by the First Amendment, he had
to first determine the content of the speech. In failing to recognize
the inescapable presence of content evaluation in First Amendment
jurisprudence the Court makes a serious error in its analysis and final
judgment. Hence although the Court's opinion clearly puts forth an
analysis of the statute based on an appraisal of the speech content that
is rejected by Minnesota's ordinance, the opinion puts forth an argument
fraught with circularity.
Justice Scalia conceded that the ordinance addressed speech that
"arouses anger, alarm, or resentment." He acknowledged that
the speech, "may insult, or provoke violence," and that such
speech "contained abusive invective." Yet, the Court chose to
strike the ordinance anyway. The problem here is that even though the
Court went through an analysis of why content proscription is
constitutionally invalid, it completely evaded the issue of harm
inherent in cross burning.
It is necessary to evaluate the content of the speech in order to
categorize the speech as protected or unprotected. The categories of
protected and unprotected speech are themselves based upon the content
of the speech which falls within them. As Justice White in his
concurring opinion asserted: "All of the categories of speech which
are not protected by the First Amendment are content based, [but] are
not protected because their expressive content is worthless or of de
minimis value to society." The existence of proscribable categories
such as obscenity and fighting words, show that content valuation is
central to any First Amendment jurisprudential determination. In making
any decision regarding First Amendment speech the court has always had
to base its opinions upon the content of the speech. Hence, First
Amendment jurisprudence rests on the very notion of content
discrimination which the Court has claimed to be unconstitutional.
The Minnesota Supreme Court held that the St. Paul ordinance only
proscribed speech that fell within the constitutionally unprotected
category of "fighting words." However, citing Chaplinsky v.
New Hampshire, from which the "fighting words" doctrine
originated, the Court rejected the notion that cross burning was
proscribable under the "fighting words" doctrine because St.
Paul's ordinance was content based. Under Chaplinsky, speech which falls
within the category of fighting words is that which is "likely to
cause an average addressee to fight." Although Justice Scalia
conceded that the ordinance was constructed to address "fighting
words," and cross burning could be construed as falling within that
category, the ordinance was nevertheless struck.
The Court reasoned that since the ordinance only addressed fighting
words "that insult and provoke" on the basis of race, it was
impermissibly content-based. However, what Justice Scalia failed to
understand was, inherent in the concept of fighting words is the notion
that racially derogatory words tend to insult and provoke persons and
thereby incites them to fight. If fighting words are proscribable under
the Constitution because they inspire victims to act violently, then the
Court should see through its own reasoning, and that of precedent, that
the ordinance is justifiably valid.
Justice Stevens wrote, "Congress may choose from the set of
unprotected speech. . . to proscribe only a subset . . . because those
threats are particularly likely to cause 'fear of violence,'
'disruption,' and actual 'violence.' Precisely this same reasoning,
however, compels the conclusion that St. Paul's ordinance is
constitutional." In other words, since the speech being proscribed
is already a subset of proscribable speech, it should certainly not be
awarded constitutional protection because of its content.
Justice Scalia explained that "fighting words,"
"despite their verbal character, are essentially a 'non-speech'
element of communication. . . . analogous to a noisy sound truck."
In this case not only is cross burning a 'noisy sound truck' for the
purposes of the ordinance, the burning of a cross is a 'noisy sound
There is absolutely no value in burning a cross on a person's lawn
other than to incite that person or other witnesses. The only logical
inference to be drawn from this is that cross burnings are fighting
words. The noise which emanates from the sight of a burning cross
manifests itself in fear and emotional pain for its victims. Thus, the
only thing that comes from cross burning is an abusive exclamation of
According to Chaplinsky, fighting words constitute speech that is
"of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality," and may therefore be restricted.
Cross burning is not only a visual articulation of hate, it is a
physical threat of violence. The act of burning a cross on someone's
lawn is contrary to the existence of social order. Even Justice Stevens,
in his concurrence, asserted that "threatening someone because of
her race or religious beliefs may cause particularly severe trauma or
touch off a riot."
In his examples, Justice Scalia undersells the gravity of the harm
produced by hate speech such as cross burning or church burning. There
is an obvious distinction between saying "all papists are
misbegotten" and burning a cross on the lawn of a Black family. In
the first instance papists maintain the power to respond to their
critics by saying that they are in fact misbegotten or some other
vocalization of their discordance. As Justice Stevens asserted in this
case, the ordinance is even-handed in this respect. However, when a
cross or church is burned the victims are held captive to an assault
which is not only audible but physical. In the case of cross burning the
victims are usually not afforded ready access to an 8-15 foot cross and
flammable apparatus to respond to their attack. Moreover, if such were
the case, would we really want people to respond to burning crosses by
burning more crosses? To accept the Court's reasoning is to respond
There is a clear difference between words that are fighting words and
words which may result in a fight. Any debate or difference in opinion
can potentially deteriorate into violence. However, there are certain
words, terms, and phrases, which when put together in any setting,
almost always result in a fight or similar destructive behavior. The
type of speech which the St. Paul ordinance proscribed is this kind of
speech. Racially motivated hate speech is not debatable speech, it is
speech used to provoke harm and cause injuries. Here, the words, coupled
with the intimately associated history of violence, places them on a
level which justifies the ordinance.
The Court also asserted that St. Paul's ordinance goes "beyond
mere content discrimination, to actual viewpoint discrimination."
However, in order for the Court to assert such a claim it would have to
argue that cross burning represents one side of a multi-sided debate. In
this case fighting words, like cross burning, does not articulate a
debatable position. As Justice White wrote, "by placing fighting
words, which the Court has long held to be valueless, on at least equal
constitutional footing with political discourse and other forms of
speech that we have deemed to have the greatest social value, the
majority devalues the latter category."
Racially motivated hate speech such as cross burning affords its
speakers constitutional soapboxes upon which to engage in
unconstitutional discrimination against racial minorities. Cross and
church burning, force their victims to become part of a captive
audience, to be filled with fear. Such arsons literally disrupt the of
peace of a community.
Citing Simon and Schuster, Inc., Justice Scalia wrote that
"content discrimination raises the specter that the Government may
effectively drive certain ideas or viewpoints from the
marketplace." This offends the basic principles of the First
Amendment. However, this rationale is flawed. The marketplace of ideas
has strictly been used to imply the place in which political exchange
may be had on any subject available for debate. In order for a concept
to be restricted from the market place of ideas it must be, in its
political sense, an idea.
Cross burning is not an idea. Cross burning is an act which conveys a
non-debatable message. Once a person lights a cross on another's lawn or
torches their church, there is no rebuttable statement to reasonably
attack. Therefore, cross and church burning are shorthand symbols for
racial hatred. As Justice White averred, "by characterizing
fighting words as a form of 'debate', ante, the majority legitimates
hate speech as a form of public discussion."
This is not to argue for a First Amendment jurisprudence which rests
upon a categorical regime of content analysis. In concurring with
Justice Stevens, one would be inclined to accept the premise that the
categorical approach does not take context seriously. However, in the
case of First Amendment analysis context is critical. In attempting to
strike a balance between remedying the harm and creating a jurisprudence
which guides us toward the appropriate remedy, the Court must be
attentive to what such acts as cross and church burnings really mean.
This cannot be done by devaluing the violent and debilitating character
of fighting words such as racially motivated hate speech.
The Court's most compelling argument asserted that the St. Paul
statute was unconstitutionally overbroad. Citing Broadrick v. Oklahoma,
Justice White wrote, "the overbreadth doctrine has the redeeming
virtue of attempting to avoid the chilling of protected
expression." However, Justice White also pointed out that St.
Paul's interest in protecting its minority citizens is compelling. As
the Minnesota Supreme Court acknowledged, the wording of the ordinance
was sufficient to cover specific fighting words and the acts commonly
associated with them. Therefore, applying the reasoning of Justice White
and the Minnesota Supreme Court, the overbreadth argument is moot and
renders the ordinance constitutionally valid with regard to its content
and reach. It is ironic, however, that in the majority opinion, the
Court did not even address the issue of overbreadth, but rather focuses
on a misguided tour of content analysis.
As Justice Stevens maintained at the beginning of his concurring
opinion, "[c]onduct which creates special risks or causes special
harms maybe prohibited by special rules." The cross burning in
R.A.V. unquestionably caused a special harm. Like church burning,cross
burning warns of danger to come, leaving an indelible stain of anger and
fear upon its victims. The rules applied in this case should be tailored
to recognize the level of harm inflicted upon homeowners, church-goers,
members of the Black community and the nation as a whole. Such rules
should, at a very minimum, be focused on achieving justice and ordered
liberty. In reversing the Minnesota Supreme Court, the Court either
failed to see the complex existence of such harms or simply ignored
B. Feeling the Fire: Understanding the Significance of Burning a
Cross and Burning a Church
Unlike the directed message of hate sent to an individual when a
cross is burned on her lawn or her home destroyed by fire, an assault on
a Black church is more diffuse, since it is targeted toward the larger
community in which it stands. The national government and private
organizations offer programs which lend aid to burned churches. These
programs, though well intentioned, do not address the central problem of
Black church arsons.
Like cross burning, the burning of Black Churches signifies the
savagery of hate when based on an irrational disgust for what is
inherently human, one's race. By failing to appreciate the context in
which such fires take place, the Justices underestimated their meaning.
Cross burning and church burning have everything to do with freedom, but
little to do with free speech. Cross burning and church burning are acts
mixed with a history of slavery and its racist aftermath--of murder,
rape, and torture.
Church burnings and cross burnings not only threaten the lives of
African- Americans, but have traditionally been preludes to violence of
great proportions. Civil order does not survive when racially motivated
arson is present. If civil peace is to exist then courts must not use
the Constitution to protect those things that undermine the essential
concept of freedom for all, that is a basic element of constitutional
order. There is little real difference between burning crosses on lawns
and burning a church to the ground. Given the historical relationship
between cross burning and church burning, courts must broaden and deepen
the sweep of their analysis, to avoid perpetuating injustices, hatred,
Racism manifest in physical violence and destruction poisons our
nation, eroding freedom to be secure in one's person and one's thoughts.
To allow crosses to burn is to encourage other forms of racially
motivated arson, including the burning of churches. To ignore the
message behind the burning of Black churches is to legitimize racial
victimization and clothe it with constitutional protection.
R.A.V. constitutionalized the theory that a particular sub-category
of the broader constitutionally proscribed category, fighting words, is
constitutionally protected free speech. Had the Court taken the time to
truly understand the fearful and hateful legacy of American history, it
would have decided R.A.V. differently. Hence the process would have
begun to recognize the extraordinarily oppressive meaning of church
arson, through the proper appraisal of the price cross burning to our
R.A.V. inevitably "permits, indeed invites, the continuation of
expressive conduct that is [in this case] evil and worthless in First
Amendment terms." We have seen the legacy of R.A.V. prevail as
Black Churches burn, congregants despair, and freedom goes up in smoke.