THE legality of "hate speech" regulations throughout the United States is open to doubt after a Supreme Court decision June 22 in a Minnesota cross-burning case.
The court used a surprisingly wide broom to sweep away a St. Paul city ordinance against speech that causes "anger, alarm, or resentment" based on race or religion.
The unanimous decision plays against a backdrop of social controversy over political correctness. The majority opinion by Justice Antonin Scalia made clear that the injuries of racist epithets and symbols will not outweigh the right to free speech.
The justices were widely expected to throw out the St. Paul ordinance because it was written too broadly to get past the Constitutional right to free speech. Instead, the court made a nearly absolute ban on regulating speech according to the views it expresses.
The ruling "makes almost all possible forms of hate-speech bans unconstitutional," says Rod Smolla, a free-speech expert at the law school of the College of William and Mary in Williamsburg, Va.
In the past two years alone, seven states have enacted new hate-crimes legislation, and six states have strengthened existing legislation.
Most stiffen penalties when group bigotry is behind acts that are already criminal. The only states without hate-crime laws are Utah, Wyoming, Nebraska, and Alaska.
Jess Hordes, Washington director of the Anti-Defamation League of B'nai B'rith, is optimistic that the impact of this decision will be limited to such sweeping laws as the St. Paul ordinance. Yet he admits that the decision is "a near-absolute ban on content-based regulation."
One night in June of 1990, some white youths in a working class neighborhood in St. Paul made a cross from broken chair legs and set it on fire in the front yard of Russ and Laura Jones and their five children. The Joneses were the only black family living in the neighborhood.
The leader of the cross burners was prosecuted under a 1982 city ordinance that bars placing any symbol with the knowledge that it "arouses anger, alarm, or resentment in others based on race, color, creed, religion, or gender."
The young man can still be prosecuted for trespass or vandalism, but the court struck down the hate-speech ordinance for singling out speech for its specific content.
The only special category of speech left largely unprotected is obscenity. The court still acknowledges a special treatment of "fighting words" delivered in a threatening manner. But Justice Scalia emphasizes the manner of delivery rather than the words.
Some accuse Scalia of picking out which kind of speech he wants to protect under the guise of neutrality. "Here's a justice who cares about obscenity but doesn't care about racism," says Charles Lawrence, professor of law at Stanford University in Palo Alto, Calif. "At bottom, justices don't see this injury as all that serious."
The court was actually sharply divided in this case, even though the decision was unanimous. The most conservative justices, Anthony Kennedy, William Rehnquist, David Souter, and Clarence Thomas, signed Scalia's opinion.
The four considered more moderate signed a concurring opinion by Justice Byron White. Justice White voted to strike the ordinance because it was too broad. His opinion would leave room for more narrowly crafted bans on hate speech. He called the majority opinion a "radical" departure from free-speech doctrine.
So far, free-speech rights appear to be an exceptional area for this court. On many fronts, such as the rights of accused criminals and religion rights, it is majoritarian - tending to favor the decisions of government over protecting minority views.
But Professor Smolla links this decision back to the 1989 flag-burning case in which the court took a strong stand for protecting the right to very unpopular speech.
"The overall portrait of this court is of a very strong First Amendment right to free speech in the past several years," says Smolla.