505 U.S. 377 (1992), argued 4 Dec. 1991, decided 22 June 1992 by vote of 9 to 0, Scalia for the Court. During the late 1980s and early 1990s, the issue of hate speech became important amid a rash of cross burnings and similar activities. In response more than one-half of the states and the federal government had enacted hate crime statutes, with sixteen of these specifically targeted against cross burnings. The city of St. Paul, Minnesota, in 1989 adopted such a measure, known as the Bias-Motivated Crime Ordinance, which, among other things, made it a misdemeanor for anyone to place “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…. ”
In the early morning hours of June 21, 1990, Robert A. Viktora (R.A.V.), age seventeen, and Arthur Miller, age eighteen, along with several other teenagers allegedly burned a cross inside the fenced yard of a black family that lived across the street from the house where they were staying. Viktora's counsel in the trial court successfully moved to have the case dismissed on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content-based and hence an unconstitutional limit on freedom of speech guaranteed under the First Amendment. The Minnesota Supreme Court, however, reversed the trial court judge and held that the measure was an appropriate means of accomplishing a compelling governmental interest in protecting the community of St. Paul from bias-motivated threats to public safety and order.
Few high court cases have produced such dissent amid unanimity. Justice Antonin Scalia's opinion for the Court resoundingly condemned the St. Paul ordinance, although some of his colleagues, in various sharply worded concurring opinions, sought to limit the impact of Scalia's pronouncements. Scalia found the measure wholly incompatible with the First Amendment since it aimed to silence speech on the basis of its content. Scalia noted that the St. Paul ordinance singled out for limitation only speech that communicated a message of racial, gender, or religious intolerance. While such speech might be offensive, the actions of the city in punishing it effectively and inappropriately handicapped a particular form of expression. Thus, it was possible for persons to express hostility toward others based on political affiliation, union membership, or homosexuality and not be covered by the ordinance.
Chief Justice William H. Rehnquist and Associate Justices Anthony M. Kennedy, David Souter, and Clarence Thomas agreed with the judgment, but did so on different grounds. For these four justices the ordinance failed because it was “overbroad,” meaning that it could be used to limit speech or expression that would otherwise deserve constitutional protection.
The remainder of the Court agreed with Scalia's decision, but they rejected entirely the rationale that he used in reaching it. Led by Justice Byron White, the three other members of the Court wanted to find a way to sustain the constitutionality of hate crime measures. As Justice Harry Blackmun, a resident of Minnesota, observed, “I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns, but I see great harm in preventing the people of St. Paul from specifically punishing the race-based ‘fighting words’ that so prejudice their community” (p. 416). Blackmun's appeal to the concept of “fighting words” invoked Chaplinsky v. New Hampshire (1942), where the justices had held that certain words, along with obscenity and defamation, were essentially outside the protection of the First Amendment. Justice Scalia recognized the importance of the fighting words exception but concluded that in this case they did not apply, a matter sharply disputed by White and his supporters. While they could not agree on the reasons, they did unite in the belief that the St. Paul ordinance was constitutionally unacceptable.