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 Burek. What 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
[13] Virginia v. Black (2003). online: http://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-texas-v-johnson
[14] Freedom of Speech. Online: http://legal-dictionary.thefreedictionary.com/Protected+speech
[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
___________________________________________
*Estudiante del Colegio de Jurisprudencia de la Universidad San Francisco de Quito
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ResponderEliminarThe U.S. Supreme Court's R.A.V v. City of St. Paul decision suggests that all hate speech or fighting words are constitutionally protected, but this statement is oversimplification. The First Amendment protects free speech, but it has limitations and exceptions, including when speech incites violence or poses a direct threat. The R.A.V case involved a local ordinance targeting offensive expression, which was struck down as unconstitutional due to its content-based and viewpoint discriminatory nature. The decision does not guarantee that hate speech or fighting words are always protected, but it emphasizes the importance of content-neutral regulations when limiting speech. Hate speech remains a contentious issue in American jurisprudence, with courts often balancing free speech rights with the need to protect individuals from harm or incitement. Subsequent Supreme Court decisions have clarified limitations on hate speech, such as Virginia v. Black, which addressed cross burning as a form of hate speech. The article should provide a nuanced discussion of the complexities surrounding hate speech and the legal framework within which it is evaluated.