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 provided:

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 African-Americans.

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 viewpoints.

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 truck,' plus.

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 racial intolerance.

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 affirmatively.

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 their gravity.

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, and destruction.

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.

IV. Conclusion

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 society.

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.