A teenager who placed a burning cross in the fenced back yard of a black family was charged under a City of St. Paul bias-motivated crime ordinance. At trial, the teenager moved for dismissal, alleging the ordinance was violative of the First Amendment. The Trial Court agreed and dismissed the case. On appeal, the MN Supreme Court reversed the lower court’s ruling, citing the “fighting words doctrine” from Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), saying that the ordinance was a “narrowly tailored means toward accomplishing the governmental interest in protecting the community.”
The ordinance was facially invalid under the First Amendment.
In the Opinion of the Court, Justice Scalia looks to the association of the “fighting words doctrine” used by the MN Supreme Court and agrees that the phrase “arouses anger, alarm or resentment in others” is within the scope of the doctrine. However, the remaining words in the ordinance criminalize acts that are based only on “race, color, creed, religion, or gender.” Referring to that language, Justice Scalia said the following:
Displays containing “fighting words” that do not invoke the disfavored subjects would seemingly be usable ad libitum by those arguing in favor of racial, color, etc., tolerance and equality, but not by their opponents. St. Paul’s desire to communicate to minority groups that it does not condone the “group hatred” of bias-motivated speech does not justify selectively silencing speech on the basis of its content.
Even though the intent of the ordinance was to ensure the “basic human rights” of groups “historically discriminated” against, the ordinance can not stand. Justice’s White, Blackmun, O’Connor, and Stevens concurred with the Opinion of the Court.
Justice Scalia spent a great deal of time focusing on the importance of the “fighting words doctrine.” In their concurring opinion, Justice’s White, Blackmun, O’Connor, and Stevens looked at the ordinance as invalid because it was, as the petitioner argued, overbroad. In the concurring opinion, the Justice’s said:
In the First Amendment context, criminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have a legitimate application…Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment…The ordinance is therefore fatally overbroad and invalid on its face.
Whether the ordinance is overbroad or invalid under the scope of the fighting words doctrine, the end result was the correct and best summarized by Justice Scalia:
Let there be no mistake about our belief that burning a cross in someone’s yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.