sustained the conviction of a Jehovah's witness
who addressed a police
officer as a "God dammed racketeer" and "a damned
v. New Hampshire). The Court's opinion
in the case stated
there was a category of face-to-face epithets, or
was wholly outside of the protection of the First
"which by their very utterance inflict injury" and
which "are no
part of any exposition of ideas."
In 1988, the Supreme Court considered a jury award of damages against Hustler Magazine for publishing a malicious and untrue story about Rev. Jerry Falwell. The piece, labeled in small print "a parody," stated that Falwell's first sexual encounter was with his mother while drunk in an outhouse. A Virginia jury concluded that the Hustler piece constituted "intentional infliction of emotional distress" and awarded $150,000 to Falwell. The Supreme Court unanimously reversed the award, saying that it saw no principled basis for distinguishing the Hustler article from hard-hitting political cartoons and other speech clearly worthy of First Amendment protection. The Court distinguished the sort of character assassination practiced by Hustler from the face-to-face insult threatening an immediate breach of the peace that was in issue in Chaplinsky.
American Booksellers v Hudnut (1986) involved a First Amendment challenge to an Indianapolis civil rights ordinance that made it a crime to distribute materials that depicted women as "sexual objects for domination, conquest, or use." The Sixth Circuit Court of Appeals invalidated the ordinance calling it "thought control." The Court ruled that the First Amendment gives government no power to establish "approved views" of various subgroups of the population.
R. A. V. considered a challenge to a St. Paul ordinance punishing the placement of certain symbols that were "likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender." Robert Victoria, a teenager, had been convicted of violating the ordinance after having been found to have burned a cross on the yard of a black family. The Court, in an an opinion by Justice Scalia, reversed R. A. V.'s conviction on the ground that the ordinance unconstitutionally criminalized some hurtful expression (specifically that aimed at racial and religious minorites) and not other hurtful expression (that aimed at other unprotected groups) based on the political preferences of legislators. Scalia makes clear that "fighting words" is not, as Chaplinsky had suggested, a category of speech that is wholly outside of First Amendment protection.
A year after R. A. V., the Supreme Court unanimously upheld, in Wisconsin v. Mitchell, a statute that imposed stiffer sentences for racially-motivated assaults than for other types of assaults. The Court reasoned that the statute did not violate the First Amendment because it was aimed primarily at regulating conduct, not speech.
(2003), the Court divided on the question of
whether a state could
cross burning carried out with the intent to
of the Court concluded that, because cross-burning
has a history as a
virulent form of intimidation," Virginia could
prohibit that form of
while not prohibiting other types of intimidating
the majority found the cross-burning statute to
fall within one of R.
A. V.'s exceptions to the general rule that
on speech violate the First Amendment.
Nonetheless, the Court
the Virginia cross-burner's conviction because of
a jury instruction
might produce convictions of cross-burners whose
not an attempt to arouse fear. Justice
Thomas dissented, arguing
that cross-burning is conduct, not expression, and
does not raise serious First Amendment issues.
Supreme Court granted cert in a case that will
consider whether to
uphold a jury verdict against a Kansas-based
anti-gay church group that
funeral of a marine who died on duty in
Iraq. (The group believes
that soldiers' deaths are a form of punishment
against America for
tolerating homosexuality). A Maryland jury
found that the
Internet postings by the group targeted the
soldier's parents and
constituted intentional infliction of emotional
Fourth Circuit overturned the jury's award, noting
that the group
complied with all local ordinances and expressed
only opinions (rather
than false statements of fact). The court
also noted that the
family of the dead marine learned of the group's
protest only after
Supreme Court's announced its decision in Snyder v
Phelps. Writing for an 8 to 1
Court, Chief Justice Roberts
noted that the Westboro group's speech generally
related to a matter of
public concern, that the group complied with all
city ordinances and
police department requests, and that the funeral
itself was not
disrupted. Given these facts, Roberts wrote,
"We cannot react to
[Snyder's] pain by punishing the speaker. As
a nation we have
chosen a different course--to protect even hurtful
speech on public
issues to ensure that we do not stifle public
Alito dissented, arguing that at least some of the
directly attacked the Snyder family and therefore
did not relate to a
matter of public concern.
Robert A. Victoria (above photo), a St.Paul teenager, was prosecuted for burning a cross in the yard of a black family.
2. Are you surprised that the Court in Hustler is unanimous, and that the opinion is authored by Chief Justice Rehnquist?
3. The Indianapolis anti-pornography ordinance involved in American Booksellers was supported by an odd coalition of Fundamentalists and feminists. How does the ordinance differ from the typical anti-pornography law?
4. Under the Indianapolis ordinance, is there a variety of "good"--although sexually explicit--pornography that might be legally displayed and distributed?
5. Would the sale of Sports Illustrated's annual "swimsuit issue" (featuring many pages of women in skimpy swimsuits) be a violation of the Indianapolis ordinance?
6. Why should we (or shouldn't we) protect expression of the idea that women should be treated as sexual objests?
7. Should R. A. V. have been decided on the more limited "overbreadth" ground suggested by the concurring justices?
8. Some have called R. A. V. "the most important First Amendment decision in decades." Do you agree?
9. Does Scalia's opinion in R. A. V. suggest that he was writing to send a message to judges and administrators who might be reviewing or considering the adoption of "politically correct" university hate speech regulations?
10. After R. A. V., would a hate speech statute specifically protecting children or senior citizens be constitutional?
11. Why doesn't R. A. V. call into question Title VII actions based on, e.g., a male supervisor's relating a dirty joke or making a sexually suggestive remark to a female employee?
12. After Wisconsin v Mitchell, how should a court evaluate the constitutionality of a statute that sentences perpetrators of race-based assaults to 3 years, perpetrators of most types of assaults to 1 year, and perpetrators of assaults based on sexual orientation to 3 weeks?
13. How easy will it be to determine when a KKK cross-burning is a statement of group solidarity (protected by the First Amendment) rather than an unprotected attempt to arouse the fear of racial or religious minorities?
14. Could a state, consistent with the First Amendment, ban the flying of the Confederate flag if "done with the intent to intimidate"? The showing of a swastika when done "with an intent to intimidate"? What has to be shown before a potentially threatening form of symbolic expression can be targeted?
15. Do you think that the messages conveyed by the Westboro Baptist group in the Snyder case all addressed matters of public concern?
16. After Snyder, what options are open for states and communities that seek to protect families mourning loved ones at funerals from the harms inflicted by Westboro group?
17. The Court in Snyder stressed that the Westboro group complied with all ordinances and police requests. If they hadn't, would the Court have reached a different result in the case?