The Supreme Court yesterday considered whether a St. Paul, Minn., hate-crime law violates the constitutional guarantee of freedom of speech, with the lawyer for a man accused of burning a cross on a neighbor's yard warning that "this is the hour of danger for the First Amendment."
But a lawyer defending the city's ordinance insisted that "the First Amendment was never intended to protect an individual who burns a cross in the middle of the night in a fenced yard of an African-American family's home."
The case, R.A.V. v. St. Paul, is being closely watched because scores of state and local governments have passed laws intended to combat bias, and many universities and colleges have speech codes.
In this case, Robert Viktora, then 17, was accused of burning a cross at the home of a black family who had recently moved to an all-white block. Viktora, whose case has not yet come to trial because of the constitutional challenge, was charged with violating a city ordinance that makes it a misdemeanor to display symbols, including the burning cross and Nazi swastika, that arouse "anger, alarm or resentment in others."
His lawyer, Edward J. Cleary, said yesterday that his client's alleged conduct was "reprehensible" and "abhorrent" but that the ordinance, even as narrowed by the Minnesota Supreme Court, still infringed on freedom of speech. The Minnesota court, attempting to keep within the high court's precedents, interpreted the law to cover only speech that amounts to "fighting words" or threatens to incite "imminent lawless action."
"We are once again faced with a case that will demonstrate whether or not there is room for the freedom for the thought that we hate, whether there is room for the eternal vigilance necessary for the opinion that we loathe," Cleary said, quoting Justice Oliver Wendell Holmes.
"The debate in this case is not about the wisdom of eradicating intolerance, the debate is about the method of reaching that goal," he said, noting that Viktora could have been prosecuted under other laws.
Ramsey County Attorney Tom Foley said St. Paul and other communities have "an absolute right and purpose" to seek to protect their citizens from such harm. He said the cross-burning would not be prohibited if it were done "in a public forum or in a political parade. . . . It's only when the conduct in this case is done in a manner to inflict injury or cause an immediate breach of the peace" that it violates the ordinance.
"Given the historical experience of African Americans, a burning cross, targeted at a black family under the circumstances outlined, is an unmistakable threat," Foley said. "Terroristic conduct such as this can find no protection in the Constitution."
One area of disagreement between the two sides concerns the meaning of the 1942 Supreme Court case in which the court limited government prosecution of offensive speech to "fighting words." In that case, Chaplinsky v. New Hampshire, the court said "fighting words" "by their very utterance inflict injury or tend to incite an immediate breach of the peace."
Cleary and Foley debated whether words that "inflict injury" can by themselves be the subject of prosecution. Cleary, responding to questions by Justice David H. Souter, said that the court should disavow that part of the case, because it would allow people to be punished merely for using "offensive" language.
Foley said that part of Chaplinsky was "still good, viable law."
In the lively, hour-long argument, all the justices but Justice Clarence Thomas asked questions. They seemed most interested in the question of whether the city could punish a narrow category of "fighting words" -- those that arouse anger on the basis of race, religion or gender -- but not others.
Justice Antonin Scalia, for example, noted that burning a cross to terrorize a neighborhood home for the mentally ill would not be covered by the ordinance. "That seems to me like the rankest kind of subject matter discrimination," Scalia said.
Foley said that the city was entitled to single out the speech for punishment based on its content. "In the case of bias-motivated crime, there is a compelling state purpose to deal with what is cancer on society, and it will unless effectively dealt with spread throughout the community," he said.