IN the cross-burning case decided by the Supreme Court Monday, two core American values - tolerance for others and free speech - banged into each other. Free speech won. But that doesn't mean tolerance has to lose.
Under an ordinance that prohibits offensive expressions "on the basis of race, color, creed, religion, or gender," St. Paul, Minn., prosecuted a teenager who burned a cross on a black family's lawn. The justices ruled unanimously that the ordinance violates the First Amendment's guarantee of free speech, but their agreement masked a wide divide in judicial thinking.
Writing for five justices, Antonin Scalia said that government, with limited exceptions, cannot prohibit speech or symbolic actions on the basis of their content. Even so-called "fighting words" - speech that can be prohibited - cannot be regulated selectively in terms of the viewpoint behind them, Justice Scalia wrote. The St. Paul ordinance, he said, improperly singled out for regulation only certain kinds of spiteful language and conduct.
In the view of the four concurring justices, the hate-speech ordinance was unconstitutional simply because it was "overbroad" - that is, because it prohibited speech entitled to First Amendment protection as well as speech beyond the pale.
If the differences in approach seem technical and abstruse to nonlawyers, in practice they could be profound. Although some legal scholars disagree, many experts believe that, under the Scalia precedent, virtually all hate-speech laws and campus speech codes will be unconstitutional. The aim of the four concurring justices apparently was to preserve a line of analysis under which more narrowly written hate-speech regulations could survive constitutional challenge.
Was Scalia's opinion a "textbook" free-speech statement, as one approving legal scholar said, or "bizarre," as another contended? An honest debate among well-meaning people goes on.
What is beyond debate is that cross burning, bigoted invective, and other expressions of hatred are, in Scalia's word, "reprehensible." And research by the National Institute Against Prejudice and Violence proves that hate speech in fact has markedly harmful effects on its victims.
Because the First Amendment allows certain words and actions doesn't mean that they belong in American life. Every avenue of moral suasion in the press, churches, schools, and other institutions should be utilized to condemn bigotry.