R.A. V. v. City of St Paul, Minnesota, No. 90-7675

CourtUnited States Supreme Court
Writing for the CourtSCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and KENNEDY, SOUTER, and THOMAS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in which BLACKMUN and O'CONNOR, JJ., joined, and in which STEVENS, J., joi
Citation505 U.S. 377,120 L.Ed.2d 305,112 S.Ct. 2538
Decision Date22 June 1992
Docket NumberNo. 90-7675
PartiesR.A.V., Petitioner, v. CITY OF ST. PAUL, MINNESOTA

505 U.S. 377
112 S.Ct. 2538
120 L.Ed.2d 305

R.A.V.,

Petitioner,

v.

CITY OF ST. PAUL, MINNESOTA.

No. 90-7675.
Argued Dec. 4, 1991.
Decided June 22, 1992.
Syllabus *

After allegedly burning a cross on a black family's lawn, petitioner R.A.V. was charged under, inter alia, the St. Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge on the ground that the ordinance was substantially overbroad and impermissibly content-based, but the State Supreme Court reversed. It rejected the overbreadth claim because the phrase "arouses anger, alarm or resentment in others" had been construed in earlier state cases to limit the ordinance's reach to "fighting words" within the meaning of this Court's decision in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 a category of expression unprotected by the First Amendment. The court also concluded that the ordinance was not impermissibly content-based because it was narrowly tailored to serve a compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.

Held: The ordinance is facially invalid under the First Amendment. Pp. 381-396.

(a) This Court is bound by the state court's construction of the ordinance as reaching only expressions constituting "fighting words." However, R.A.V.'s request that the scope of the Chaplinsky formulation be modified, thereby invalidating the ordinance as substantially overbroad, need not be reached, since the ordinance unconstitutionally prohibits speech on the basis of the subjects the speech addresses. P. 381.

(b) A few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content. However, these categories are not entirely invisible to the Constitution, and government may not regulate them based on hostility, or favoritism, towards a nonproscribable message they contain. Thus the regulation of "fighting words" may not be based on nonproscribable content. It may, however, be underinclusive, addressing some offensive instances and leaving other, equally offensive, ones alone, so long as the selective prescription is not based on content, or there is no realistic possibility that regulation of ideas is afoot. Pp. 382-390.

Page 378

(c) The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of "race, color, creed, religion or gender." At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation the ordinance goes beyond mere content, to actual viewpoint, discrimination. Displays containing "fighting words" that do not invoke the disfavored subjects would seemingly be useable ad libitum by those arguing in favor of racial, color, etc. tolerance and equality, but not by their opponents. St. Paul's desire to communicate to minority groups that it does not condone the "group hatred" of bias-motivated speech does not justify selectively silencing speech on the basis of its content. Pp. 391-393.

(d) The content-based discrimination reflected in the ordinance does not rest upon the very reasons why the particular class of speech at issue is proscribable, it is not aimed only at the "secondary effects" of speech within the meaning of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, and it is not for any other reason the sort that does not threaten censorship of ideas. In addition, the ordinance's content discrimination is not justified on the ground that the ordinance is narrowly tailored to serve a compelling state interest in ensuring the basic human rights of groups historically discriminated against, since an ordinance not limited to the favored topics would have precisely the same beneficial effect. Pp. 393-396.

464 N.W.2d 507 (Minn.1991), reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and KENNEDY, SOUTER, and THOMAS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in which BLACKMUN and O'CONNOR, JJ., joined, and in which STEVENS, J., joined except as to Part I-A. BLACKMUN, J., filed an opinion concurring in the judgment. STEVENS, J., filed an opinion concurring in the judgment, in Part I of which WHITE and BLACKMUN, JJ., joined.

Page 379

Justice SCALIA delivered the opinion of the Court.

In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely-made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been pun-

Page 380

ished under any of a number of laws,1 one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn.Legis.Code § 292.02 (1990), which provides:

"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."

Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment.2 The trial court granted this motion, but the Minnesota Supreme Court reversed. That court rejected petitioner's overbreadth claim because, as construed in prior Minnesota cases, see, e.g., In re Welfare of S.L.J., 263 N.W.2d 412 (Minn.1978), the modifying phrase "arouses anger, alarm or resentment in others" limited the reach of the ordinance to conduct that amounts to "fighting words," i.e., "conduct that itself inflicts injury or tends to incite immediate violence . . .," In re Welfare of R.A.V., 464 N.W.2d 507, 510 (Minn.1991) (citing Chapli-

Page 381

nsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)), and therefore the ordinance reached only expression "that the first amendment does not protect." 464 N.W.2d, at 511. The court also concluded that the ordinance was not impermissibly content-based because, in its view, "the ordinance is a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against bias-motivated threats to public safety and order." Ibid. We granted certiorari, 501 U.S. ----, 111 S.Ct. 2795, 115 L.Ed.2d 969 (1991).

I

In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota court. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 339, 106 S.Ct. 2968, 2975-2976, 92 L.Ed.2d 266 (1986); New York v. Ferber, 458 U.S. 747, 769, n. 24, 102 S.Ct. 3348, 3361, n. 24, 73 L.Ed.2d 1113 (1982); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131 (1949). Accordingly, we accept the Minnesota Supreme Court's authoritative statement that the ordinance reaches only those expressions that constitute "fighting words" within the meaning of Chaplinsky. 464 N.W.2d, at 510-511. Petitioner and his amici urge us to modify the scope of the Chaplinsky formulation, thereby invalidating the ordinance as "substantially overbroad," Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2914-2915, 37 L.Ed.2d 830 (1973). We find it unnecessary to consider this issue. Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the "fighting words" doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.3

Page 382

The First Amendment generally prevents government from proscribing speech, see, e.g., Cantwell v. Connecticut, 310 U.S. 296, 309-311, 60 S.Ct. 900, 905-906, 84 L.Ed. 1213 (1940), or even expressive conduct, see, e.g., Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 2540, 105 L.Ed.2d 342 (1989), because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. ----, ---- - ----, 112 S.Ct. 501, ---- - ----, 116 L.Ed.2d 476 (1991) id., at ---- - ----, 112 S.Ct., at ---- - ---- (KENNEDY, J., concurring in judgment); Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 536, 100 S.Ct. 2326, 2332-2333, 65 L.Ed.2d 319 (1980); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289-2290, 33 L.Ed.2d 212 (1972). From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a

Page 383

few limited areas, which are "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." Chaplinsky, supra, 315 U.S., at 572, 62 S.Ct. at 762. We have recognized that "the freedom of speech" referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity); Beauharnais v. Illinois, 343 U.S. 250, 72...

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1678 practice notes
  • McLaughlin v. City of Lowell, CIVIL ACTION NO. 14-10270-DPW
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 23, 2015
    ...exacting 140 F.Supp.3d 188standard. Content-based regulations are "presumptively invalid," R.A.V. v. City of St. Paul, Minn. , 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), and it is the "rare case" in which strict scrutiny is overcome, Williams – Yulee v. F......
  • Citizens for Equal Protection, Inc. v. Bruning, No. 4:03CV3155.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • May 12, 2005
    ...The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Moreover, "[t]he voters may no more violate the Constitution by enacting a ballot measure than a ......
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    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 24, 2003
    ...side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." R.A.V. v. City of St. Paul, 505 U.S. 377, 392, 112 S.Ct. 2538,120 L.Ed.2d 305 For the foregoing reasons, the defendants' motion for summary judgment regarding the statements quoted a......
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    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 26, 2014
    ...“justified without reference to the content of the regulated speech.” See Ezell, 651 F.3d at 706–08 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), and War......
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1640 cases
  • McLaughlin v. City of Lowell, CIVIL ACTION NO. 14-10270-DPW
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 23, 2015
    ...This is an exacting 140 F.Supp.3d 188standard. Content-based regulations are "presumptively invalid," R.A.V. v. City of St. Paul, Minn. , 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), and it is the "rare case" in which strict scrutiny is overcome, Williams – Yulee v. Florida Ba......
  • Citizens for Equal Protection, Inc. v. Bruning, No. 4:03CV3155.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Nebraska
    • May 12, 2005
    ...The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Moreover, "[t]he voters may no more violate the Constitution by enacting a ballot measure than a legis......
  • Wagner v. City of Holyoke, No. CIV.A. 98-30170-MAP.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 24, 2003
    ...one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." R.A.V. v. City of St. Paul, 505 U.S. 377, 392, 112 S.Ct. 2538,120 L.Ed.2d 305 For the foregoing reasons, the defendants' motion for summary judgment regarding the statements quoted ab......
  • Colo. Outfitters Ass'n v. Hickenlooper, Civil Action No. 13–cv–01300–MSK–MJW
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • June 26, 2014
    ...“justified without reference to the content of the regulated speech.” See Ezell, 651 F.3d at 706–08 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), and War......
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  • The Legal Status of Conversion Therapy
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    • Georgetown Journal of Gender and the Law Nbr. XXII-1, October 2020
    • October 1, 2020
    ...(1968)50. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949).51. FAIR II, 547 U.S. at 62. See also R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992).52. R.A.V., 505 U.S. at 389.53. Giboney, 336 U.S. at 502.258 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. The Ninth Circui......
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    ...v. Alvarez, 567 U.S. 709, 717 (2012) (plurality op.); United States v. Stevens, 559 U.S. 460, 462 (2010); R.A.V. v. City of St. Paul, 505 U.S. 377 (213.) Falossi v. Koenig, No. E048400, 2010 WL 4380112, at *13 (Cal. Ct. App. Nov. 5, 2010). (214.) Id. (215.) See, e.g., Idaho Code Ann. [secti......
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    • Michigan Law Review Vol. 120 Nbr. 4, February 2022
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    ...written material and even expressive conduct. (6.) Bridges v. California, 314 U.S. 252, 270 (1941). (7.) R.A.V. v. City of St. Paul, 505 U.S. 377,383 (1992); see also Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (8.) Virginia v. Black, 538 U.S. 343, 359 (2003). (9.) See infra note 33. ......
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    ...U.S. at 447-48 (articulating the line between protected advocacy and unprotected incitement). (36.) See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 390 (1992) (recognizing concerns over viewpoint discrimination even in situations where the government is authorized to discriminate based......
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