Here are two good discussions of R.A.V. v. City of St. Paul. As you will see the authors did not take the same approach to the case, but each carefully addressed the legal issues raised in the case and each reached a clear conclusion as to the best approach.

These are not perfect papers and we've removed the footnotes, but they will give you an idea of the assignment. Pay special attention to the authors' organization of the discussion and conclusion and their use of the facts of the cases to advance their discussions of the legal issues.

Model No. One

R.A.V. v. City of St. Paul

After allegedly burning a cross on a black family's lawn, petitioner Robert A. Viktora, R.A.V.,
was charged under 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." Violation of this
ordinance constitutes a misdemeanor.

Arguing before the Untied States Supreme Court in 1992, petitioner R.A.V. held that the St.
Paul ordinance was substantially overbroad, criminalizing not only speech unprotected by the
First Amendment, "fighting words," but also expression that is protected by the First
Amendment. The Overbreadth claim had previously been rejected by the Minnesota State
Supreme Court because the phrase "arouses anger, alarm, or resentment in others," had been
construed in earlier cases to limit the ordinance's reach to "fighting words," a category of speech
unprotected by the First Amendment and narrowly defined as words which by their very
utterance offend, Chaplinsky v. New Hampshire, 315 U.S. 568, 572.

R.A.V. further claimed that the St. Paul ordinance was facially invalid and impermisssibly
content-based and therefore invalid under the First Amendment. The Court reversed the decision
of the State Supreme Court and remanded the case.

Justice Scalia, joined by Chief Justice Rehnquist, and justices Kennedy, Souter, and Thomas,
wrote the Court's opinion which held that the ordinance was facially violative of the First
Amendment because it applied only to fighting words that insult or incite violence on the basis of
"race, color, creed, religion, or gender."

Displays, no matter how offensive , were permissible under the ordinance unless directed at one
of the aforementioned topics. Displays using fighting words in reference to other ideas were
not covered. The Court held that certain categories of speech may be regulated because of their
constitutionally proscribable speech. They may not be regulated, however, on the basis of the
nonproscribable message they contain. The ordinance imposes viewpoint discrimination in
silencing those speakers who express disfavored views on "race, color, creed, religion, or
gender"

The ordinance was not aimed at the secondary effects of speech within the meaning of Renton v.
Playtime Theatres, Inc., 475 U.S. 41. Its content discrimination is not justified on the ground
that it is narrowly construed to protect a compelling state interest because an ordinance including
but not limited to said topics would serve the same purpose.

Justice White, joined by justices Blackmun, O'Connor, and Stevens, in part, concurred in the
judgment but not in the Court's analysis. White argued that First Amendment jurisprudence has
long held certain categories of speech, including fighting words, to be proscribable on the basis
of their content. Neither child pornography nor obscenity, for example, is protected by the First
Amendment, Roth v. United States, 354 U.S. 476, 484-485.

The ordinance was overbroad because it reached beyond the intended scope of the ordinance to
expressive conduct that causes offense or resentment and criminalized expression protected by
the First Amendment. White also argued that where there is a compelling state interest, the state
has the right to regulate speech, Chaplinsky.

Justice Stevens concurred in judgment but disagreed with White that fighting words are wholly
unprotected by the First Amendment. He held that the ordinance is not unconstitutionally
content-based but that it is unconstitutionally overbroad. Stevens disagreed with the Court that all
content-based regulations are "equally infirm and presumptively invalid." He argued that the St.
Paul ordinance regulates expressive activity that is wholly proscribable and does so not on the
basis of viewpoint, as the majority suggests, but on the basis of content, in recognition of the
harm caused by such activity. In its judgment, Stevens argued, the Court wrongly gave fighting
words the same protection afforded political speech.

Established First Amendment case law indicates that there are times when the state may, and has,
regulated the content of speech. Stevens points to Young v. American Mini Theatres in which the
Court upheld zoning ordinances regulating movie theatres based on the content of the films
shown there. Child pornography, libel, and obscenity are three categories of speech not afforded
protection under the First Amendment, as White indicates. What the state may not regulate is the
ideas expressed through speech as this stands in violation of the First Amendment.

The Court's categorical approach to First Amendment law fails to acknowledge the context in
which speech occurs. Stevens convincingly argues that context is paramount to speech as it takes
into consideration use and audience and therefore can establish whether a category of speech is or
is not appropriate. The St. Paul ordinance, as construed by the Court, is not facially invalid
because it does not attempt to drive ideas from the marketplace. Expression of ideas is wholly
permissible under the First Amendment so long as "it is not so threatening and so directed at an
individual as to by its very execution inflict injury," Stevens 352. This proscription serves a
larger state interest in protecting groups that have historically been discriminated against.

The St. Paul ordinance is not impermissibly content-based. As White argued, the Court is
inconsistent in arguing that the government may proscribe an entire class of speech but may not
proscribe a subset of that class of speech without violating the First Amendment. The subset is
by definition a part of the class of speech in question. The ordinance is intended to serve a larger
societal concern for local public safety and the avoidance of hate crimes. As written, it regulates
expression and not the viewpoints that being expressed.

The case should be decided on overbreadth claims. St. Paul's ordinance is overbroad because it
reaches beyond proscribable speech to speech that is protected by the First Amendment. The
statute criminalizes expression that, in the words of the Court, is reprehensible, but that is
guaranteed protection under the First Amendment. If the ordinance were not overbroad, it would
stand as a valid regulation of unprotected speech under the Constitution's Fourteenth Amendment
equal protection clause.

St. Paul's ordinance regulates speech that is constitutionally proscribable. Speech is regulated not
on the basis of viewpoint, but in recognition of the harm caused by such speech.Were the
ordinance not overbroad in reaching constitutionally protected speech, it should have been
upheld.

Model No. Two

In R.A.V. v. St. Paul, the court examines whether certain kinds of
fighting words can be singled out for regulation and, if so, how narrowly
tailored such legislation needs to be to address a compelling governmental
interest.

The Supreme Court ruled in Chaplinsky and elsewhere that certain
categories of speech are unprotected by the constitution. These categories
include libel, obscenity and "fighting words," all of which have been
regulated by statute. But the Supreme Court has also ruled content-based
regulation of speech is "presumptively invalid under the First Amendment."
These two conflicting principles delineate the central debate in this case.

Scalia writing for the majority, said the St. Paul ordinance is
both too narrow and too broad to pass constitutional muster. The ordinance
is too narrow because it is content-based - it singles out a certain kinds
of fighting words to proscribe. It is too broad because, in the interest
of compelling governmental interest, it censors protected speech where a
content-neutral ordinance would achieve the same goals.

The First Amendment permits banning speech, writes Scalia quoting
Chaplinsky, in the few areas "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."

But regulation of these types of speech must focus on the
unprotected content - prurience or defamation for example, insists Scalia.
The fact that speech is obscene cannot be used as an excuse to regulate
constitutionally protected content. Government cannot, for example,
regulate all obscene expressions which show women in a demeaning way, and
not regulate other obscene expressions depicting only men.

Applying these principles to the St. Paul ordinance, Scalia found
the ordinance too narrow because it bans only fighting words that express
hostility based on race, religion or gender.

Scalia notes that a law banning fighting words generally would
address the compelling governmental interest, so dismisses St. Paul's
contention that a content specific law is necessary for that end.
Although concurring in the outcome, White deplores the majority's
reasoning. White claims the Court, in its majority opinion, is reversing
long-standing precedent that excludes protection of certain narrow
categories of expression - libel, obscenity and fighting words. To permit
government to ban a class of speech, but not a subset of that class flies
in the face of established jurisprudence and logic.

Further, argues White, the court also abandons the strict scrutiny
doctrine which permits regulation of protected speech if the regulation
achieves a compelling state interest and is narrowly drawn to achieve that
end. Scalia is saying, in effect, that such legislation must be more
broadly drawn if it is to be found constitutional.

Blackmun, in a brief concurring opinion, agrees with White that the
majority's decision weakens First Amendment protection. "If all expressive
activity must be accorded the same protection, that protection will be
scant," he writes. "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 . . . ."

Stevens, in a succinct concurring opinion, notes that while the
court has ruled content-based regulations of speech are impermissible,3
other "decisions demonstrate that content-based distinctions, far from
being presumptively invalid, are an inevitable and indispensable aspect of
a coherent understanding of the First Amendment."

Stevens posits a hierarchy of protection (an instrumental
approach), with core political speech on top and libel, obscenity and
fighting words on the bottom. Even if fighting words are not wholly
unprotected as the majority indicates, says Stevens, "it certainly does not
follow that fighting words and obscenity receive the same sort of
protection afforded core political speech."

Stevens questions the categorical approach - championed in the
first part of White's opinion - because it lacks subtlety and because it
ignores the essential importance of context in the determining whether
speech should be protected.

Following his denial of the majority's "underbreadth" argument and
his doubts about the value of a categorical approach, Stevens asserts that
"selective, subject-matter regulation on proscribable speech is
constitutional." The St. Paul ordinance regulated speech on the harm it
causes, not on the basis of the topic or subject it addresses. Stevens
concludes that if the ordinance were not overbroad, he would deem it
constitutional.

I disagree with majority opinion because its effect could well
weaken protections on free speech by trying to expand them to forms of
speech that were formerly unprotected. In reaching this conclusion, I
agreed with all three concurring opinions, but with Stevens' most.
Claiming to move from all-or-nothing categorical approach (an
exaggeration), the majority creates a broader all-or-nothing requirement,
depriving government and judges of the ability to apply narrow remedies to
particular kinds of harm.

All speech has content. The distinctions Scalia presents are too
cloudy - the content of speech is what always determines whether it is
protected or not. Only very narrow areas of content should be regulated,
and only for the most compelling reasons. I believe it is always better to
err on the side of openness and free speech than on suppression. But to
remove content as a means of testing speech, is to render meaningless the
ability to regulate dangerous speech.

In the St. Paul case, sufficiently narrow tests existed that would
have led the court find the ordinance restricted protected expression
without the need for new theory. The St. Paul ordinance was flawed enough
that the test Scalia enunciated was superfluous. The court's opinion in
this case undermines the ability of citizens to place common-sense
restraints on harmful conduct and speech.

 

School of Journalism and Communication