The US Supreme Court decision of R.A.V v. City of St. Paul suggests that all hate speech/fighting words are constitutionally protected



Sofia  Paredes Arízaga*

R.A.V v. City of St. Paul is a case that created a standard in which virtually all hate speech is protected by the first amendment. This case created a precedent for future court decisions that involve freedom of expression and freedom of speech. R.A.V v. City of St. Paul is especially important because of the controversial topic that carries certain ideas about race, ethnicity, national origin, gender, religion, heritage, sexual orientation, etc. They say America is the land of freedom; but what kind of freedom the community has when they fell threatened by someone?

The rights that the first amendment provides to the people in the United States is diverse, for instance, some groups like the Ku Klux Klan have been permitted to express their thoughts and march on public streets exercising their first amendment rights. As professor John Brigham from the University of Massachusetts said: the true purpose of the first amendment is to protect those thoughts that are “on the fringe”, but, what type of thoughts are we talking about? Maybe those thoughts are not harmful at all or maybe those thoughts will become actions later on that could end in harming people’s integrity by simple stereotypes based on sex, race, etc. Indubitably “subject to reasonable time, place, and manner restrictions.”[1] In the United States history one of the most recognized and important amendment is the first amendment. One of the main points is freedom that each individual in society has. "The First Amendment promotes the free flow of ideas and information in our society by prohibiting government from restricting speech or expressive conduct because of the message expressed."[2] However this amendment not only protects the “oral speech” it also includes the “symbolic speech”, “whose purpose is to communicate ideas in a symbolic (but not necessarily verbal) fashion.”[3] But when we know that those expressions of ideas went to far? In the case of R.A.V v. City of St. Paul, it is correct to say that those expressions of racism should be protected by the first amendment or it can be considered fighting words? Or is a case of “clear and present danger”?

The fighting words doctrine was introduced in the Supreme Court Case Chaplinsky v. New Hampshire (1942). The court in this case defined the term of fighting words, as ”words which are likely to incite an immediate fight and words which inflict injury.”[4] Fighting words are unprotected by the US Constitution first amendment, because “they are not normally part of any dialogue or exposition of ideas.”[5] On the other hand, hate speech is the one that insults groups or offends them based substantially in race, color, national origin, heritage, sexual orientation, and religion, among others. However “under the First Amendment, individuals do have a right to speech that the listener disagrees with and to an speech that is offensive and hateful.”[6]

 R.A.V. v. City of St. Paul (1992) is a landmark case in which a fourteen-year-old white male, living in a “white neighborhood” along with a group of teenagers made a cross with pieces of a broken chair. After they made the cross, they burned it in their neighbors yard, it has to be said that their neighbors were an African American family.  The meaning of the burning cross was the “welcoming” to the neighborhood. Afterwards this events the affected family presented charges and one of the boys was held guilty under the Minnesota criminal law that stated: “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.”[7] The case went to the Supreme Court and ultimately they held that the Minnesota law was unconstitutional by reason of the violation of the first amendment of the United States Constitution. The Supreme Court held that the Minnesota law was violating the first amendment because: “the First Amendment prohibits the regulation of fighting words by subject matter.”[8] Justice Scalia mentioned, "Nonverbal expressive activity can be banned because of the action it entails, but not because of the idea it expresses."[9] Meaning that a person can never under the first amendment be accused of the idea he or she expresses, as mentioned in in the court case: Texas v. Johnson (1989).

This landmark case established a country of free speech and expression under a few limitations. However, this case should be analyzed from another point of view, because the act of burning the cross is an example of disturbing the peace of others and a symbol of terror in the community. As many people think this actions could be an example of “clear and present danger”, not only because a teenager burned a cross in the yard of the African American family, but because the cross burning has an historic meaning, dated to the medieval Europe, as professor Diane Roberts of the University of Alabama mentions: “Scots used burning crosses as rallying symbols on their way to war, and […] crosses were set afire on Scottish hilltops to warn of enemy invasion”[10] consequently the Ku Klux Klan a known racist society, decided to use the same symbol but in a racist manner to scare the men and women of color. The first reported burning took place in Georgia on Thanksgiving Eve (1915). Since that event took place the burning of crosses was been associated with racist violence. Therefore, the use of the cross burning action mentioned in R.A.V. v. City of St. Paul case is a symbol of racism and unwelcoming behavior towards the family and an incitation to violence. “The use of the cross as a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan is common knowledge”[11] as a result this action can be considered clear and present danger because the act of burning a cross could end in a violent act, as professor LaRaja from the University of Massachusetts views this case: “Is like if someone comes into my yard and wants me to go out and fight back, is an irruption of the established peace in the neighborhood, and those actions could create a clear and present danger." On the other hand, the actions of R.A.V. v. City of St. Paul could be considered “Fighting words”, as the doctrine mentions, citing Chaplinsky, the court determined that the applicable test was whether the words used would "reasonably incite the average person to retaliate."[12] The only reason why the family did not came out of the house to fight, is because of the fear they felt in their own house.
A similar case happened in Virginia v. Black (2003). This case also involved a cross burning done to terrorize an African-American family. A Virginia criminal statute had outlawed cross burning "on the property of another, a highway or other public place […] with the intent of intimidating any person or group.“[13] In a 6-3 decision, the Court upheld the statute. It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally. “However, when the cross burning was targeted at individuals for the purposes of criminal intimidation, freedom of speech would not protect the cross burners.”[14] As the time passes the racist actions come more and more evident.

In conclusion, R.A.V v. City of St. Paul is a case that created a standard in which virtually all hate speech is protected by the first amendment. One of the reasons hate speech is protected is because symbolic expression is under the first amendment shield. The amendment never explains that the protection of freedom of speech is merely for words it could be also for symbols. Symbols can represent strong ideas and these ideas communicate. The First Amendment does not discriminate between symbols such as the United States flag, the Nazi swastika and the cross. There should be a balance between the speech and the harmony among the community, “a balance must be found that protects the civil rights of all without limiting the civil liberties of the speaker”.[15] For most points of view, cross burning is harmful speech however for others is just a way people expresses their selves (such as burning the flag to send a message to the community). One of the main reasons society does not put limits to the freedom of speech and especially censor hate speech, is thanks to American society, the community is afraid to be censored and become one of the countries they hate the most. Freedom of speech in the first amendment includes commercial speech, political speech and hates speech.

1] Debating the “mighty constitutional opposites”. (n.d.). Retrieved from http://www.americanbar.org/groups/public_education/initiatives_awards/students_in_action/debate_hate.html
[2] Westbrook, A. (1999, 09 17). The contested first amendment question. Retrieved from http://iml.jou.ufl.edu/projects/fall99/westbrook/dispap2.htm
[3] Debating the “mighty constitutional opposites”. (n.d.). Retrieved from http://www.americanbar.org/groups/public_education/initiatives_awards/students_in_action/debate_hate.html
[4] Silver, E., Stein, A., Surman, T., & Thompson, E. (n.d.). Fighting words. Retrieved from http://www.gvpt.umd.edu/gvpt339/fightingwords.html
[5] Silver, E., Stein, A., Surman, T., & Thompson, E. (n.d.). Fighting words. Retrieved from http://www.gvpt.umd.edu/gvpt339/fightingwords.html
[6] ABA Division for Public Education: Students: Debating the "Mighty Constitutional Opposites": Hate Speech Debate. (n.d.). ABA Division for Public Education: Students: Debating the "Mighty Constitutional Opposites": Hate Speech Debate. Retrieved October 23, 2013, from http://www.americanbar.org/groups/public_education/initiatives_awards/students_in_action/debate_hate.html
[7] Simmsparris, M. (n.d.). R.A.V. Decision: Where Law and Principles Collide. R.A.V. Decision: Where Law and Principles Collide. Retrieved October 23, 2013, from http://academic.udayton.edu/race/06hrights/waronterrorism/churchburn01c.htm
[8] R.A.V. v. City of St. Paul. 505 U.S. 377. (1992). Retrieved from: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0505_0377_ZC2.html
[9] Westbrook, A. (1999, 09 17). The contested first amendment question. Retrieved from http://iml.jou.ufl.edu/projects/fall99/westbrook/dispap2.htm
[10] Josh BurekWhat are the origins of cross-burning?. Online: http://www.csmonitor.com/2002/1213/p25s04-wonq.html. 2002
[11] Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753, 770-71 (1995) (Thomas, J., concurring).
[12] What is the Fighting Words Doctrine?. Online: http://www.freedomforum.org/templates/document.asp?documentID=13718
[15] ABA Division for Public Education: Students: Debating the "Mighty Constitutional Opposites": Hate Speech Debate. (n.d.). ABA Division for Public Education: Students: Debating the "Mighty Constitutional Opposites": Hate Speech Debate. Retrieved October 23, 2013, from http://www.americanbar.org/groups/public_education/initiatives_awards/students_in_action/debate_hate.html
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*Estudiante del Colegio de Jurisprudencia de la Universidad San Francisco de Quito 


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