Out of the Ashes of the Cross: The Legacy of R.A.V. v. City of St. Paul

"The decision . . . will surely confuse the lower courts."⁽¹⁾

"In my view, determining how to apply . . . R.A.V. v. City of St. Paul, . . . is a difficult matter."⁽²⁾

  Introduction

Few cases in recent years have confused the landscape of First Amendment jurisprudence more than R.A.V. v. City of St. Paul.⁽³⁾ For the first time, a majority⁽⁴⁾ of the United States Supreme Court said that a governmental body may not selectively proscribe expression that falls within a larger class of proscribable expression.⁽⁵⁾ The Court noted, however, that such content-based discrimination is permissible when it falls within certain exceptions.⁽⁶⁾ The R.A.V. concurring minority⁽⁷⁾ and a number of commentators⁽⁸⁾ argued that the R.A.V. general rule and its "nonexhaustive list of ad hoc exceptions"⁽⁹⁾ would lead to an array of convoluted and unpredictable judicial applications in federal and state courts.⁽¹⁰⁾ They further argued that, although the R.A.V. majority opinion struck down a hate-crime statute that proscribed a sub-class of fighting words,⁽¹¹⁾ the R.A.V. ruling would reach other kinds of statutes and other forms of expression that traditionally fall outside the purview of First Amendment protection.⁽¹²⁾

This Note examines the R.A.V. holding and the legacy that it has engendered. Part II discusses the evolution of First Amendment jurisprudence with particular emphasis on the fighting words doctrine.⁽¹³⁾ Part III discusses R.A.V., both the majority and concurring minority opinions.⁽¹⁴⁾ Part IV assesses the R.A.V. legacy.⁽¹⁵⁾ Part IV.B examines R.A.V.'s effect upon hate-crime legislation regulating expression.⁽¹⁶⁾ Part IV.C analyzes the impact of R.A.V. within the context of penalty enhancement statutes.⁽¹⁷⁾ Part IV.D provides an overview of R.A.V. within other post-R.A.V. contexts.⁽¹⁸⁾ Part V offers a brief conclusion.⁽¹⁹⁾

  The First Amendment and the Doctrine of Proscribable Expression

A.  Background

The First Amendment expressly provides that "Congress shall make no law . . . abridging the freedom of speech."⁽²⁰⁾ Few constitutional rights are protected with as much zeal as freedom of expression.⁽²¹⁾ Any government regulation that restricts the content of speech⁽²²⁾--that is, a content-based regulation--generally receives the highest form of judicial scrutiny.⁽²³⁾ The government may, however, restrict the content of certain categories of speech that are "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."⁽²⁴⁾ The United States Supreme Court has "recognized that `the freedom of speech' referred to by the First Amendment does not include a freedom to disregard [the] traditional limitations [of order and morality]."⁽²⁵⁾ Categories of speech that are excluded from total First Amendment protection and, thus, permissibly subject to regulation, include obscenity,⁽²⁶⁾ defamation,⁽²⁷⁾ child pornography,⁽²⁸⁾ advocacy of imminent illegal conduct,⁽²⁹⁾ threats,⁽³⁰⁾ and fighting words.⁽³¹⁾ The Supreme Court has never formulated precise guidelines in determining whether a type of speech should be categorically excluded from First Amendment protection.⁽³²⁾ Once the Court deems a category of speech unworthy of First Amendment protection, it does not do so irrevocably, as the Court has afforded a degree of protection to previously unprotected categories,⁽³³⁾ and has refined the definitional scope of others.⁽³⁴⁾

The United States Supreme Court has established that content-based regulations of protected expression, such as political speech, are presumptively invalid and subject to a strict scrutiny analysis.⁽³⁵⁾ Prior to R.A.V., the Court had never ruled on the presumptive invalidity of content-based regulations that fall exclusively within the context of an unprotected category of expression.⁽³⁶⁾ In R.A.V., the Court considered content discrimination that involved the unprotected category of fighting words.⁽³⁷⁾

B.  The Fighting Words Doctrine

1.  Chaplinsky v. New Hampshire⁽³⁸⁾

The United States Supreme Court first articulated the fighting words doctrine in Chaplinsky v. New Hampshire.⁽³⁹⁾ In Chaplinsky, the defendant distributed literature about Jehovah's Witnesses on a New Hampshire street corner as he verbally assailed "all religion."⁽⁴⁰⁾ He was charged with violating chapter 378, section 2, of the Public Laws of New Hampshire, which proscribed the use of offensive language against individuals in public places.⁽⁴¹⁾ Chaplinsky was found guilty in the municipal and superior courts, and his conviction was upheld by the New Hampshire Supreme Court.⁽⁴²⁾

Chaplinsky challenged the New Hampshire statute on the grounds that it violated his First Amendment rights of freedom of speech, the press, and worship.⁽⁴³⁾ A unanimous United States Supreme Court immediately dismissed his attacks as they related to his rights of freedom of the press and freedom to worship.⁽⁴⁴⁾ In addressing Chaplinsky's attack on free speech grounds, the Court first stated that "the right of free speech is not absolute at all times and under all circumstances."⁽⁴⁵⁾ Among those categories of speech that did not merit absolute First Amendment protection were "`fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."<sup>(46)</sup> The Court accepted the New Hampshire Supreme Court's statutory interpretation that the term "`"offensive" [was] not to be defined in terms of what a particular addressee [thought]. . . . The test is what men of common intelligence . . . understand . . . .'"⁽⁴⁷⁾ "[T]he limited scope of the statute as . . . construed [does not] contravene[] the Constitutional right of free expression."⁽⁴⁸⁾ In affirming the New Hampshire Supreme Court's conviction, the Chaplinsky Court concluded that the statute was "narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace."⁽⁴⁹⁾

2.  Fighting Words After Chaplinsky

The fighting words doctrine that the Chaplinsky Court formulated carried with it two prongs. Specifically, fighting words were those "which by their very utterance [either] [1] inflict injury or [2] tend to incite an immediate breach of the peace."⁽⁵⁰⁾ The Court has neither upheld any regulations of speech based on the injury prong, nor given a precise meaning to the kind of injury it requires.⁽⁵¹⁾ The Court, therefore, only referred to the second prong in considering subsequent cases that evoked the fighting words doctrine.⁽⁵²⁾

In 1949, only seven years after Chaplinsky, the Court refined the fighting words doctrine in Terminiello v. Chicago.⁽⁵³⁾ In Terminiello, the defendant made a speech in which he referred to his audience as "slimy scum,"⁽⁵⁴⁾ "snake[s],"⁽⁵⁵⁾ and "atheistic communistic Jew[s]."⁽⁵⁶⁾ Terminiello was charged and convicted under the local breach-of-the-peace statute, chapter 1939, section 193-1 of the Municipal Code of Chicago.⁽⁵⁷⁾ The trial court instructed the jury that it could convict the defendant if it found that Terminiello's language "`stir[red] the public to anger, invite[d] dispute, [brought] about a condition of unrest, or create[d] a disturbance.'"⁽⁵⁸⁾ Without addressing whether Terminiello's words constituted fighting words, the United States Supreme Court found that the statute was overbroad⁽⁵⁹⁾ in that it not only reached the permissibly regulable fighting words, but it also reached words that cause anger or dispute as well.⁽⁶⁰⁾ Such words, the Court reasoned, were well within the purview of political free speech.⁽⁶¹⁾ Most notably, the Terminiello Court advanced the proposition that mere offensiveness did not make words proscribable under the Chaplinsky doctrine.⁽⁶²⁾ "[F]reedom of speech, though not absolute, . . . [is] nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."⁽⁶³⁾ This "clear and present danger" standard appeared to extend beyond those words which merely "tend to incite an immediate breach of the peace."⁽⁶⁴⁾ Thus, a sensitive or easily offended audience would not be granted what amounted to a "heckler's veto."⁽⁶⁵⁾

In subsequent fighting words cases, the Court reaffirmed the notion that merely offensive language is protected.⁽⁶⁶⁾ Indeed, some commentators have suggested that the Chaplinsky progeny of cases have tempered the original fighting words doctrine to the extent that it is only applicable to virulent language within a direct personal encounter incorporating the totality of the circumstances.⁽⁶⁷⁾ Others suggest that the Chaplinsky standard reflects a gender-biased mindset.⁽⁶⁸⁾ Still others believe that Chaplinsky, even in a weakened guise, countenances violence as a permissible reaction to verbal assault and that, in itself, is morally wrong.⁽⁶⁹⁾ Some commentators simply fear that the fighting words doctrine gives cover to governmental authorities to censor unpopular viewpoints.⁽⁷⁰⁾ In the last analysis, however, the most telling reflection on Chaplinsky may have emanated from within the Court itself: "[T]he Court . . . is merely paying lip service to Chaplinsky."⁽⁷¹⁾

Although the Supreme Court has vitiated the original Chaplinsky doctrine, it has never explicitly overturned it.⁽⁷²⁾ In this regard, against a backdrop of increasing societal tensions in general, and hate-motivated crimes in particular,⁽⁷³⁾ various legislative and educational bodies enacted hate-crime statutes and codes that were predicated on the Chaplinsky fighting words exception.⁽⁷⁴⁾ The government of the City of St. Paul, Minnesota was one such legislative body.

  R.A.V. v. City of St. Paul⁽⁷⁵⁾

A.  Facts of the Case

On June 21, 1990, the petitioner⁽⁷⁶⁾ constructed a cross from wooden chair legs.⁽⁷⁷⁾ He and others burned the cross on the front lawn of a black family that lived across the street from the petitioner.⁽⁷⁸⁾ The petitioner was charged under the St. Paul Bias-Motivated Crime Ordinance.⁽⁷⁹⁾ The trial court granted the petitioner's motion to dismiss on grounds that "the St. Paul ordinance was substantially overbroad and impermissibly content based and therefore facially invalid under the First Amendment."⁽⁸⁰⁾ The Minnesota Supreme Court reversed by limiting the reach of the St. Paul statute only to "`fighting words' . . . `conduct that itself inflicts injury or tends to incite immediate violence.'"⁽⁸¹⁾ The Minnesota court also stated that the ordinance survived the application of strict scrutiny.⁽⁸²⁾ In a unanimous decision, the United States Supreme Court reversed.⁽⁸³⁾

B.  The Majority Opinion

Writing for the majority,⁽⁸⁴⁾ Justice Scalia accepted the Minnesota Supreme Court's interpretation of the statute as only reaching the unprotected class of expression called "fighting words" within the meaning of Chaplinsky.⁽⁸⁵⁾ Justice Scalia said, however, that such words are not "categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content."⁽⁸⁶⁾ In this regard, Justice Scalia said that although a "government may proscribe libel; . . . it may not . . . proscrib[e] only libel critical of the government."⁽⁸⁷⁾ Such selectivity, in the majority's view, would amount to a form of content discrimination.⁽⁸⁸⁾

"We have not said that [fighting words] constitute `no part of the expression of ideas' . . . only . . . `no essential part . . . .'"⁽⁸⁹⁾ In this regard, Justice Scalia likened the totality of fighting words to a "noisy sound truck."⁽⁹⁰⁾ "Each is . . . a `mode of speech' . . . both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment."<sup>(91)</sup> Just as the noise emitted by a sound truck is recognized as a non-speech element of the expression conveyed by the sound truck,<sup>(92)</sup> so too, "the unprotected features of [fighting] words are, despite their verbal character, . . . a `non-speech' element of communication."⁽⁹³⁾ It is these "non-speech" elements of expression that may be reached by "time, place, or manner restrictions . . . [provided that such restrictions] `are justified without reference to the content of the regulated speech.'"⁽⁹⁴⁾ Thus, a government statute may properly regulate the loudness of a sound truck, or the time of day it may operate, just as it may regulate the unprotected features of fighting words, provided "[t]he government . . . [does] not [so] regulate . . . based on hostility--or favoritism--towards the underlying message expressed."⁽⁹⁵⁾

Justice Scalia further stated that the "rationale of the general prohibition [against content discrimination] . . . is that content discrimination `raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.'"⁽⁹⁶⁾ "But content discrimination among various instances of a class of proscribable speech often does not pose this threat."⁽⁹⁷⁾ Thus, Justice Scalia asserted that there were circumstances in which the government could engage in content-based discrimination when the regulated speech fell within a larger class of proscribable speech.⁽⁹⁸⁾

The first such circumstance occurs, according to the Court, "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable."⁽⁹⁹⁾ To illustrate, Justice Scalia maintained that a government may choose to regulate particularly offensive types of obscenity.⁽¹⁰⁰⁾ "But [the government] may not prohibit . . . only that obscenity which includes offensive political messages."⁽¹⁰¹⁾ "[T]he Federal Government can criminalize only those threats of violence that are directed against the President . . . [because such threats] have special force when applied to the person of the President."⁽¹⁰²⁾ "But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities."⁽¹⁰³⁾

A second circumstance in which a government may proscribe a subclass of a larger, unprotected class of expression is if "the subclass happens to be associated with particular `secondary effects' of the speech."⁽¹⁰⁴⁾ As an example of this "secondary effects" exception, Justice Scalia noted that a state regulation could "permit all obscene live performances except those involving minors."⁽¹⁰⁵⁾

Justice Scalia implied that a third exception to the larger R.A.V. rule occurs when "a particular content-based subcategory of a proscribable class of speech . . . [is] swept-up incidentally within the reach of a statute directed at conduct rather than speech."⁽¹⁰⁶⁾ Justice Scalia noted, for example, that "Title VII's general prohibition against sexual discrimination in employment practices" may include incidental regulation of certain "sexually derogatory `fighting words.'"⁽¹⁰⁷⁾ "Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy."⁽¹⁰⁸⁾

These three exceptions to the larger prohibition against content-based discrimination of a subclass of proscribable expression are rooted in content-neutral reasoning.⁽¹⁰⁹⁾ Still, "to validate such selectivity . . . it may not even be necessary to identify any particular `neutral' basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."⁽¹¹⁰⁾ This represents a final, catch-all exception to the larger prohibition.

The Court held that the St. Paul ordinance was facially unconstitutional even if, as interpreted by the Minnesota Supreme Court, it only reached the unprotected category of fighting words.⁽¹¹¹⁾ The Court stated that:

[T]he ordinance applies only to "fighting words" that insult or provoke violence, "on the basis of race, color, creed, religion or gender". . . . Those who wish to use "fighting words" in connection with other ideas--to express hostility . . . on the basis of political affiliation, union membership, or homosexuality--are not covered.⁽¹¹²⁾

Thus, the St. Paul statute represented content-based discrimination within a larger class of proscribable expression.

Justice Scalia further stated that the St. Paul statute went "beyond mere content discrimination, to actual viewpoint discrimination."⁽¹¹³⁾ He acknowledged that the statute proscribed the use of certain fighting words, such as "odious racial epithets," by individuals of all viewpoints.⁽¹¹⁴⁾ He added, however, that "`fighting words' that do not . . . invoke race, color, creed, religion, or gender--aspersions upon a person's mother, for example--would seemingly be usable . . . in favor of racial, color, etc., tolerance and equality, but could not be used by these speakers' opponents."<sup>(115)</sup> To this end, Justice Scalia suggested that an individual "could hold up a sign saying . . . that all `anti-Catholic bigots' are misbegotten; but not that all `papists' are, for that would insult and provoke violence `on the basis of religion.'"⁽¹¹⁶⁾ Justice Scalia also asserted that were the St. Paul statute directed at certain individuals, or classes of individuals, it "would be facially valid if it met the requirements of the Equal Protection Clause."⁽¹¹⁷⁾

Justice Scalia rejected the idea that the St. Paul statute fell within any of the exceptions that enable a government to regulate a subclass of expression that falls within a larger class of unprotected expression.⁽¹¹⁸⁾ According to Justice Scalia, the St. Paul statute did not fall within the first exception "for content discrimination based on the very reasons why the particular class of speech at issue . . . is proscribable."⁽¹¹⁹⁾ Justice Scalia noted that fighting words are exempted from First Amendment protection because "their content embodies a particularly intolerable . . . mode of expressing whatever idea the speaker wishes to convey."⁽¹²⁰⁾ To this end, Justice Scalia asserted that St. Paul did not proscribe a specific subclass of fighting words on the basis that it represented a particularly intolerable or "offensive mode of expression."⁽¹²¹⁾ "Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance."⁽¹²²⁾

Justice Scalia rejected St. Paul's claim that its statute came under the second exception "that allows content discrimination aimed only at the `secondary effects' of the speech."<sup>(123)</sup> St. Paul had claimed that its statute was designed to protect the emotional sensibilities of members of groups that historically have been the objects of discrimination.<sup>(124)</sup> As Justice Scalia pointed out, however, "`[t]he emotive impact of speech on its audience is not a "secondary effect."'"⁽¹²⁵⁾

Finally, Justice Scalia categorically dismissed any notion that the St. Paul statute satisfied the final, catch-all exception.⁽¹²⁶⁾ "It hardly needs discussion that the ordinance does not fall within some more general exception permitting all selectivity that . . . is beyond the suspicion of official suppression of ideas."⁽¹²⁷⁾

Justice Scalia also stated that the St. Paul statute did not survive strict scrutiny analysis in which a content-based regulation "is nonetheless justified because it is narrowly tailored to serve compelling state interests."⁽¹²⁸⁾ St. Paul had claimed that its statute served the compelling state interest of "ensur[ing] the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish."⁽¹²⁹⁾ Justice Scalia conceded that the statute's purpose was a compelling state interest and that the ordinance was, in fact, designed to serve that interest.⁽¹³⁰⁾ He added, however, that "[t]he dispositive question in this case . . . is whether content discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not."⁽¹³¹⁾

C.  The Concurring Dissent

1.  Justice White's Opinion

Justice White authored a concurring opinion that read more like a dissent.⁽¹³²⁾ He agreed with the Court's judgment that the St. Paul statute was unconstitutional and that the decision of the Minnesota Supreme Court should be reversed.⁽¹³³⁾ Justice White argued, however, that the St. Paul statute was unconstitutional because it was "fatally overbroad . . . [as] it criminalize[d] not only unprotected expression but expression protected by the First Amendment [as well]."⁽¹³⁴⁾ Justice White asserted that the Minnesota Supreme Court was wrong in construing the St. Paul statute to reach only fighting words as defined in Chaplinsky.⁽¹³⁵⁾ Justice White interpreted the Minnesota court's application of the Chaplinsky language to the wording of the St. Paul statute to mean that "St. Paul may constitutionally prohibit expression that `by its very utterance'<sup>(136)</sup> causes `anger, alarm or resentment.'"⁽¹³⁷⁾ In this regard, Justice White asserted that "the mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected."⁽¹³⁸⁾ As such, he concluded that the St. Paul statute was overbroad because "expressive conduct that causes only hurt feelings, offense, or resentment" is made criminal.⁽¹³⁹⁾

While Justice White agreed with the Court's judgment, he sharply rebuked the majority's rationale.⁽¹⁴⁰⁾ He rejected Justice Scalia's analogy that fighting words were like a noisy sound truck in which both serve as a mode of expression.⁽¹⁴¹⁾ "Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury."⁽¹⁴²⁾ Justice White added that fighting words, like all proscribable classes of expression, were intrinsically "worthless or of de minimis value to society,"⁽¹⁴³⁾ and that any expressive interests inherent in such words were overwhelmingly outweighed by the evil that the legislation would aim to restrict.⁽¹⁴⁴⁾ He stated that it did not make sense to permit a state to proscribe an entire class of speech on the grounds that the speech was evil, but not allow a state to proscribe a subset of that class of speech on the same grounds.⁽¹⁴⁵⁾ "[A] ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate-speech, without creating the danger of driving viewpoints from the marketplace."⁽¹⁴⁶⁾

Justice White further asserted that even if the St. Paul statute were a content-based regulation that was not overbroad, it nonetheless would survive strict scrutiny.⁽¹⁴⁷⁾ He agreed with the majority that the statute served a compelling state interest but disagreed with the majority's reasoning that the key inquiry was whether content discrimination was reasonably necessary to serve that interest.⁽¹⁴⁸⁾ "Under the majority's view, a narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech."⁽¹⁴⁹⁾ Justice White maintained that the proscription of more speech rather than less speech was antithetical to principles of strict scrutiny analysis.⁽¹⁵⁰⁾

Justice White also sharply rebuked the majority's "apparently nonexhaustive list of ad hoc exceptions . . . [created] to anticipate some of the questions that will arise from its radical revision of First Amendment law."⁽¹⁵¹⁾ He said that the first exception--where content-based discrimination is permitted if it is predicated on "`the very reason the entire class of speech at issue is proscribable'"--should apply to the St. Paul statute.<sup>(152)</sup> To this end, he alluded to the majority's application of this exception to the content-based federal statute that proscribes specific threats against the President and not against government officials generally.<sup>(153)</sup> "`[T]he reasons why threats of violence are outside the First Amendment [is because they] . . . have special force when applied to the person of the President.'"⁽¹⁵⁴⁾ By analogy, Justice White said that this exception "should apply to the St. Paul ordinance, since `the reasons why [fighting words] are outside the First Amendment . . . have special force when applied to [groups that have historically been subjected to discrimination].'"⁽¹⁵⁵⁾ He further stated that the majority had erred in saying that the first exception did not apply to the St. Paul statute on the grounds that it did not target a "particularly objectionable mode of communication."⁽¹⁵⁶⁾ Fighting words are "a message that is at its ugliest [and, thus, most objectionable] when directed against groups that have long been the targets of discrimination. Accordingly, the ordinance falls within the first exception to the majority's theory."⁽¹⁵⁷⁾

Justice White also stated that the majority fashioned its "secondary effects" exception in order to insulate Title VII sexual harassment claims from falling into the Court's larger proscription on content-based discrimination within a larger class of proscribable expression.⁽¹⁵⁸⁾ "The regulation does not prohibit workplace harassment generally; it focuses on what the majority would characterize as the `disfavored topi[c]' of sexual harassment."⁽¹⁵⁹⁾ "In this way, Title VII is similar to the St. Paul ordinance . . . . [Therefore, u]nder the broad principle the Court uses to decide the present case, . . . [Title VII] claims based on sexual harassment should fail First Amendment review . . . ."⁽¹⁶⁰⁾

Finally, Justice White ridiculed the majority's general, catch-all exception as a means "to protect against unforeseen problems."⁽¹⁶¹⁾ "[T]his case does not concern the official suppression of ideas."⁽¹⁶²⁾

2.  Justice Stevens's Opinion

Justice Stevens wrote an opinion in which he agreed with Justice White that the St. Paul statute was fatally overbroad.⁽¹⁶³⁾ He criticized, however, both Justice White and the majority for their absolutist positions.⁽¹⁶⁴⁾ He sharply rebuked the majority's position that within an unprotected class of expression, "a government must either proscribe all speech or no speech at all."⁽¹⁶⁵⁾ Justice Stevens also asserted that the majority's prohibition of content-based discrimination of unprotected expression gave such expression the "same sort of protection afforded core political speech."⁽¹⁶⁶⁾

Like Justice White, Justice Stevens disparaged the majority's use of exceptions to its larger holding, and suggested that they were necessary "because the Court recogniz[ed] the[] perversities [of its decision]."⁽¹⁶⁷⁾ Justice Stevens further wrote: "[A]lthough the Court recognizes exceptions to its new principle, those exceptions undermine its very conclusion that the St. Paul ordinance is unconstitutional."⁽¹⁶⁸⁾

While Justice Stevens strongly disagreed with the majority's rationale, he also disagreed with parts of Justice White's analysis.⁽¹⁶⁹⁾ Specifically, he took exception to Justice White's endorsement of a categorical dichotomy between protected and unprotected expression.⁽¹⁷⁰⁾ He noted that "the categorical approach does not take seriously the importance of context."⁽¹⁷¹⁾ In this regard, Justice Stevens advanced the idea that expression in the abstract is not amenable to a categorical legislative judgment.⁽¹⁷²⁾ Justice Stevens remarked that the Court had moved in a less-categorical direction as "[t]he Court has recognized intermediate categories of speech."⁽¹⁷³⁾

In rejecting the categorical approach, Justice Stevens proposed that courts examine an array of factors in assessing the constitutionality of a content-based ordinance that regulates expression.⁽¹⁷⁴⁾ Specifically, he proposed that courts examine the expression's content, the context within which the expression is offered, and the nature and scope of the restriction.⁽¹⁷⁵⁾ In applying his multiple-factored test to the St. Paul statute, Justice Stevens concluded that it would have been constitutional were it not overbroad.⁽¹⁷⁶⁾

  Analysis: The R.A.V. Legacy

A.  Introduction

In its most limited interpretation, the R.A.V. holding simply served to strike down a city ordinance on the grounds that a legislative body may not proscribe a subclass of fighting words, subject to specific exceptions.⁽¹⁷⁷⁾ The concurring minority opinions, though in agreement with the majority's judgment, took strong exception to the Court's rationale.⁽¹⁷⁸⁾ More broadly, the concurring minority opinions and other commentators suggested that the R.A.V. holding would have a wide-ranging and inconsistent impact on subsequent First Amendment jurisprudence.⁽¹⁷⁹⁾ The thrust of this predictive commentary reduces itself to a series of rhetorical concerns. First, to what extent would the R.A.V. ruling affect other kinds of hate-speech ordinances, in particular, and regulations of proscribable expression generally?⁽¹⁸⁰⁾ Second, to what extent would the majority's list of exceptions vitiate the impact of R.A.V.?⁽¹⁸¹⁾ Third, would the R.A.V. holding lead to a movement toward broader restrictions on expression?⁽¹⁸²⁾ Fourth, in what other contexts would the R.A.V. holding apply?⁽¹⁸³⁾

Since 1992, the R.A.V. holding has influenced an array of federal and state cases. R.A.V.'s greatest impact has occurred on cases that involve hate-crime legislation. The majority of states and many communities have passed what is termed "hate-crime legislation."⁽¹⁸⁴⁾ Some of these statutes, like the St. Paul ordinance in R.A.V., are directed at expression.⁽¹⁸⁵⁾ Other hate-crime statutes enhance the penalty for crimes that were committed because of the victim's status.⁽¹⁸⁶⁾ It is this latter class of statutes that the Supreme Court said is designed to regulate conduct.⁽¹⁸⁷⁾ The subsequent analysis will examine the impact of R.A.V. on these two classes of hate-crime legislation.⁽¹⁸⁸⁾

B.  R.A.V. and Hate-Crime Statutes Regulating Expression

1.  Principal Case Law

In light of R.A.V., a number of courts have examined the constitutionality of hate-crime statutes regulating expression.⁽¹⁸⁹⁾ In State v. Vawter,⁽¹⁹⁰⁾ the New Jersey Supreme Court relied on R.A.V. to strike down two sections of that state's hate-crime statute.⁽¹⁹¹⁾ The Vawter court said that even if it limited the construction of the two content-based⁽¹⁹²⁾ sections to fighting words, the sections would "not fit within any of the [R.A.V.] exceptions to the prohibition against content discrimination."⁽¹⁹³⁾ The Vawter court also said that, like the St. Paul ordinance, the two New Jersey provisions would not survive strict scrutiny analysis.⁽¹⁹⁴⁾ The court "conclude[d] that Sections 10 and 11 [were] underinclusive and thus impermissible under R.A.V. . . . Inasmuch as the language of Sections 10 and 11 limit[ed] their scope to the disfavored topics of race, color, creed, and religion, the statutes offend[ed] the First Amendment."⁽¹⁹⁵⁾

In State v. Sheldon,⁽¹⁹⁶⁾ Maryland's highest court examined the constitutionality of a state statute that proscribed the burning of a "`cross or other religious symbol upon any private or public property'" without prior consent of the owner and notification to the fire department.⁽¹⁹⁷⁾ Like the courts in R.A.V. and Vawter, the Sheldon court ruled that Maryland's statute regulated expression in a content-based manner.⁽¹⁹⁸⁾ The Sheldon court did not, unlike the Minnesota Supreme Court,⁽¹⁹⁹⁾ limit the construction of the Maryland statute as only reaching a class of proscribable expression.⁽²⁰⁰⁾ The Sheldon court stated that even if it were to so limit the statute, the statute would not be saved by the R.A.V. exceptions that provide for content-based discrimination within a proscribable class of expression.⁽²⁰¹⁾ The court also found that the statute did not survive strict scrutiny analysis.⁽²⁰²⁾ The Sheldon court ruled that the statute was unconstitutional, affirming the decision of the trial court.⁽²⁰³⁾

The Sheldon court struck down a statute on the grounds that it impermissibly discriminated on the basis of content.⁽²⁰⁴⁾ A Florida appeals court in State v. T.B.D.⁽²⁰⁵⁾ struck down a similar statute on overbreadth grounds, only to be reversed by the Florida Supreme Court.⁽²⁰⁶⁾ While the statute in Sheldon referred to the burning of a cross "or other religious symbol,"⁽²⁰⁷⁾ the T.B.D. statute only referred to a "burning or flaming cross, real or simulated."⁽²⁰⁸⁾

The T.B.D. I court chose not to apply the R.A.V. analysis since the statute "is [overbroad and] not, by its terms, limited to types of expressive conduct traditionally recognized as being entitled to little or no protection under the First Amendment."⁽²⁰⁹⁾ The Florida court added that even if it could limit the construction of the statute as only reaching unprotected expression, such as fighting words or advocacy of imminent illegal conduct, it would still be unconstitutional under R.A.V. since it would only proscribe "one type of . . . conduct, [cross burning], based upon the content of the message."⁽²¹⁰⁾ Unlike the Sheldon court, the T.B.D. I court did not even consider whether, under such a construction, any of the R.A.V. exceptions would save the purportedly content-based statute.⁽²¹¹⁾

In 1995, the Florida Supreme Court saved the statute.⁽²¹²⁾ In direct contrast to the lower T.B.D. I ruling, the Florida high court said that the statue was not overbroad.⁽²¹³⁾ In so ruling, the Florida Supreme Court limited the statute as only reaching the proscribable classes of expression of threats and fighting words.⁽²¹⁴⁾ The court then ruled that the statute comported with R.A.V. because, unlike the St. Paul ordinance, the Florida statute did not proscribe expression on the basis of certain topics such as race, religion, or gender.⁽²¹⁵⁾ Rather, the Florida court said that the statute "cut[] across the board evenly" and was "an even-handed and neutral ban on a manifestly damaging form of expressive activity."⁽²¹⁶⁾

In State v. Ramsey,⁽²¹⁷⁾ the South Carolina Supreme Court struck down a statute whose only material difference in wording from the T.B.D. statute was that the Florida statute only referred to a cross burning "`on the property of another,'"<sup>(218)</sup> whereas the South Carolina statute also referred to cross burning "`in a public place.'"⁽²¹⁹⁾ In stark contrast with the Florida Supreme Court's T.B.D. II ruling, the Ramsey court held that the South Carolina statute was an impermissibly content-based regulation of protected expressive conduct.⁽²²⁰⁾ Unlike the Florida Supreme Court, the South Carolina Supreme Court added that even if it were to limit the construction of the statute to fighting words as the state urged, the statute would still be unconstitutional.⁽²²¹⁾ Like the intermediate appellate court in T.B.D. I, the Ramsey court did not consider whether any of the R.A.V. exceptions would have saved the statute under a limiting construction.⁽²²²⁾

In State v. Talley,⁽²²³⁾ the Washington Supreme Court examined the constitutionality of a malicious harassment statute.⁽²²⁴⁾ The statute provided that a person was guilty of malicious harassment if he or she committed certain acts against an individual on the basis of "`that person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap.'"<sup>(225)</sup> Subsection 2 of the statute further provided that the burning of a cross or defacement of the victim's property "`with symbols or words . . . [which] traditionally connote hatred or threats'"⁽²²⁶⁾ represented a per se violation.⁽²²⁷⁾ Subsection 3 of the statute assigned a felony status to malicious harassment.⁽²²⁸⁾

The Talley court ruled that subsection 2 fell "squarely within the prohibitions of R.A.V. [because] [l]ike the St. Paul Ordinance, [the Washington statute] criminalize[d] symbolic speech that expresse[d] disfavored viewpoints."⁽²²⁹⁾ "Even if construed to address only fighting words, as the Minnesota Supreme Court did with the St. Paul Ordinance, the statute is still unconstitutional under . . . R.A.V. . . . because even fighting words may not be regulated based on their content."⁽²³⁰⁾ Notwithstanding the Talley court's reliance on R.A.V. in ruling that subsection 2 was impermissibly content-based, it did not consider the applicability of the R.A.V. exceptions, just as the T.B.D. I and Ramsey courts did not.⁽²³¹⁾

2.  Statutory Classification

The statutes in Vawter, Sheldon, T.B.D., Ramsey, and Talley all involved substantially the same concept: a content-based proscription of expressive conduct.⁽²³²⁾ The statute in Vawter proscribed the placement of certain symbols "`including, but not limited to[,] a burning cross,'"<sup>(233)</sup> on public or private property that "`exposes another to threats of violence, contempt or hatred on the basis of race, color, creed or religion.'"⁽²³⁴⁾ In a similar fashion, the Talley statute rendered cross burning and certain kinds of property defacement per se felonious violations of its malicious harassment statute when "`directed toward, [a] person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap.'"⁽²³⁵⁾ Both the Vawter and Talley statutes, like the St. Paul ordinance, were content-based in that they "prohibit[ed] speech solely on the basis of the subjects the speech addresses."⁽²³⁶⁾

The Talley statute engaged in an additional form of content-based discrimination where subsection 2 specifically referred to cross burning and certain forms of property defacement "`with symbols or words . . . [which] historically or traditionally connote hatred or threats toward the victim.'"⁽²³⁷⁾ The R.A.V. and Vawter statutes, in contrast, did not discriminate on the basis of specific forms of expression but rather exclusively on the basis of those to whom the expression was directed.⁽²³⁸⁾ The Talley statute was content-based because it discriminated both on the basis of its proscriptions against specific forms of expression, as well as on the basis of those to whom the expression was addressed.⁽²³⁹⁾

The statutes in Sheldon, Ramsey, and, according to a Florida intermediate court of appeals,⁽²⁴⁰⁾ T.B.D. I, were content-based because they discriminated exclusively on the basis that they proscribed specific kinds of expressive conduct.⁽²⁴¹⁾ In Sheldon, the statute referred to the burning of "`cross[es] or other religious symbol[s].'"<sup>(242)</sup> The Ramsey statute proscribed a "`burning or flaming cross or any manner of exhibit [thereof].'"⁽²⁴³⁾ In relevant part, the T.B.D. statute made the same proscription as the Ramsey statute.⁽²⁴⁴⁾

These cases suggest that courts have applied R.A.V. to two classes of statutes regulating expression. One class of statutes--seen in R.A.V. and Vawter--served to proscribe limitless forms of expressive conduct that conveyed "messages of `bias-motivated' [group] hatred."<sup>(245)</sup> The forms of expression that the St. Paul ordinance addressed were determined on the basis of "`race, color, creed, religion or gender.'"⁽²⁴⁶⁾ The statute in Vawter referred to subjects which were determined on the basis of "`race, color, creed, or religion.'"⁽²⁴⁷⁾ Both statutes also required that the expressive conduct satisfy an emotive threshold when specifically addressed to these subjects.⁽²⁴⁸⁾ Neither statute delimited the kind of expressive conduct it proscribed, provided such conduct was addressed to an individual on one of the disfavored categorical bases and satisfied the statutory emotive threshold.⁽²⁴⁹⁾

The class of statutes seen in Sheldon, Ramsey, and T.B.D., in contrast, did not require that the proscribed acts satisfy an emotive threshold such as the "arousal of anger" or "exposure to hatred."⁽²⁵⁰⁾ Nor did they explicitly define a list of disfavored topics such as race or gender.⁽²⁵¹⁾ In relevant part, these statutes only proscribed the unauthorized placement of a burning cross.⁽²⁵²⁾

The R.A.V. Court held that the objectionable aspect of the St. Paul ordinance was that it targeted messages on the basis of specifically defined content.⁽²⁵³⁾ It was on this basis that the Vawter court struck down the New Jersey statute.⁽²⁵⁴⁾

Like the courts in R.A.V. and Vawter, the courts in Sheldon, Ramsey, and T.B.D. I ruled that their respective statutes were impermissibly content-based.⁽²⁵⁵⁾ Unlike the R.A.V. and Vawter courts, which based their rulings on the assertion that a city or state may not selectively proscribe a subclass of disfavored topics within what is otherwise a larger class of proscribable expression,⁽²⁵⁶⁾ the Sheldon, Ramsey, and T.B.D. I courts based their rulings on the notion that cross burning "conveys [protected] ideas . . . [and] the First Amendment mandates that government may not prohibit the expression of [such] ideas."⁽²⁵⁷⁾ The courts in these three cases said that limiting constructions to a proscribable class of expression such as fighting words would not save the statutes because they prohibit "only one type of [proscribable expressive] conduct."⁽²⁵⁸⁾

Sheldon, Ramsey, and T.B.D. I implied that a court may apply the R.A.V. prohibition against content discrimination of proscribable expression not only when the content discrimination occurs on the basis of disfavored subject matter, as seen in R.A.V. and Vawter,⁽²⁵⁹⁾ but also when it targets a specific form of expression, such as cross burning.⁽²⁶⁰⁾

The post-R.A.V. analysis of the Sheldon-Ramsey-T.B.D. class of statutes appeared fairly well settled until June 1995 when the Florida Supreme Court issued its ruling in T.B.D. II.⁽²⁶¹⁾ Unlike the lower court, the T.B.D. II court actually limited the reach of the Florida statute to the proscribable classes of fighting words and threats of violence.⁽²⁶²⁾ The T.B.D. II court asserted that the R.A.V. Court "held the [St. Paul] ordinance invalid because it played favorites: Rather than proscribing certain types of `fighting words' across the board, the ordinance prohibited such words . . . only where the words may offend due to `race, color, creed, religion, or gender.'"⁽²⁶³⁾ The T.B.D. II court then stated that the Florida statute "comport[ed] with R.A.V. because the Florida prohibition . . . cuts across the board evenly. No mention is made of any special topic such as race, color, creed, religion or gender."⁽²⁶⁴⁾

In essence, the T.B.D. II court interpreted the R.A.V. holding in a fashion that was entirely antithetical to the decisions in Sheldon, Ramsey, T.B.D. I, and Talley.⁽²⁶⁵⁾ Effectively, the T.B.D. II court asserted that the R.A.V. prohibition against content discrimination of proscribable expression only applied to the topic-oriented R.A.V.-Vawter class of statutes and not to the Sheldon-Ramsey-T.B.D. class of statutes, which targeted a specific kind of expressive conduct such as cross burning.⁽²⁶⁶⁾ Even more remarkable is that the South Carolina and Florida Supreme Courts examined virtually identical statutes and rendered opposing judgments.⁽²⁶⁷⁾

In light of T.B.D. II, a city or state may now construct a statute that is consistent with the Sheldon-Ramsey-T.B.D. model and argue that, like the Florida statute, it only reaches fighting words and does not violate R.A.V. since "[n]o mention is made of any special topic such as race, color, creed, religion or gender."⁽²⁶⁸⁾ An opponent to such a statute would pursue the reasoning used in Sheldon, Ramsey, and the T.B.D. II dissent.⁽²⁶⁹⁾ The judicial outcome would depend on where a court's sympathies rests.

The T.B.D. II ruling underscores a fundamental question left unanswered by the R.A.V. Court. Specifically, does the R.A.V. prohibition against content discrimination within a proscribable class of expression include those statutes that specifically proscribe a form of expression, such as cross burning, without direct reference to categories of expression that are determined on the bases of identifying characteristics such as race or gender?⁽²⁷⁰⁾

3.  Application of the R.A.V. Exceptions

The R.A.V. Court noted that the "prohibition against content discrimination . . . applies differently in the context of proscribable speech than in the area of fully protected speech."⁽²⁷¹⁾ The R.A.V. Court then articulated a series of exceptions in which content discrimination of wholly proscribable speech is permissible.⁽²⁷²⁾ This suggests that a prerequisite to the application of the R.A.V. exceptions is a real or presumed finding that the content-based statute in question affects a category of proscribable expression such as fighting words.⁽²⁷³⁾ The R.A.V. Court further implied that once a real or presumed finding were made, a court would then examine the statute's constitutionality with respect to the R.A.V. exceptions before proceeding to traditional strict scrutiny analysis.⁽²⁷⁴⁾

In this regard, the courts in Talley, Sheldon, Ramsey, and T.B.D. I either did not apply the R.A.V. exceptions or applied them inappropriately. In Talley, for example, the court said that "[i]f a regulation of . . . [proscribable] speech is content-based, the court applies the same stringent standard of review that it applies to all other content-based regulations."⁽²⁷⁵⁾ The Talley court then added that even if it were to limit the reach of its statute to fighting words, "the statute is still unconstitutional under the R.A.V. analysis because even fighting words may not be regulated based on their content."⁽²⁷⁶⁾ The Talley court made no allusion to the exceptions provided by the R.A.V. general rule.⁽²⁷⁷⁾ Similarly, the courts in Ramsey and T.B.D. I did not apply the R.A.V. exceptions.⁽²⁷⁸⁾

In Sheldon, the court analyzed the Maryland statute with respect to the R.A.V. exceptions despite the fact that the court had not limited or even extended the reach of the statute to a subclass of proscribable expression, an apparent prerequisite.⁽²⁷⁹⁾ To this end, the Sheldon court tentatively suggested that the R.A.V. exceptions applied to all content-based regulations.⁽²⁸⁰⁾ The Sheldon court apparently recognized that the final, R.A.V. catch-all exception only applied "`where totally proscribable speech [was] at issue.'"⁽²⁸¹⁾

Moreover, it is paradoxical that in failing to allude to the R.A.V. exceptions, the Talley court may have unwittingly applied the first R.A.V. exception.⁽²⁸²⁾ Specifically, the R.A.V. Court provided that content-based regulations of proscribable expression are permissible "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable."⁽²⁸³⁾ With respect to fighting words, the R.A.V. Court noted that "the reason why fighting words are categorically excluded . . . is . . . that their content embodies a particularly intolerable . . . mode of expressi[on]."⁽²⁸⁴⁾ The R.A.V. Court further noted that the St. Paul ordinance did not fall under this first exception because "St. Paul ha[d] not singled out an especially offensive [or intolerable] mode of expression."⁽²⁸⁵⁾ Yet, the Talley court struck down subsection 2 of the Washington statute because, "[l]ike the St. Paul Ordinance, [the Washington statute] criminalize[d] symbolic speech that expresses disfavored viewpoints in an especially offensive manner."⁽²⁸⁶⁾

Even a deliberate consideration of the first R.A.V. exception may be confused. In assessing the applicability of the first R.A.V. exception to the Maryland statute, the Sheldon court asserted that had the state "cast the cross burning law as an attempt to regulate only the most inciteful of constitutionally proscribable fighting words, it would [have] commit[ed] the same mistake as [St. Paul] in selecting only certain socially charged [fighting] words for prosecution."⁽²⁸⁷⁾ Yet, the first R.A.V. exception allows a city or state to regulate certain fighting words precisely because they represent a most inciteful and "especially offensive mode of expression."⁽²⁸⁸⁾ St. Paul's mistake, moreover, was not that it selected only certain socially charged fighting words, but that it "proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance."⁽²⁸⁹⁾

Two California cases provide an additional perspective on how courts have applied the R.A.V. exceptions to hate-crime statutes regulating speech. In re Steven S.⁽²⁹⁰⁾ examined the constitutionality of a state hate-crime statute that proscribed particular acts of terror.⁽²⁹¹⁾ The court reasoned that the statute targeted unprotected speech that fell within the fighting words doctrine in a content-based manner.⁽²⁹²⁾ The In re Steven S. court, however, distinguished the statute from the St. Paul ordinance.⁽²⁹³⁾ Specifically, it said that the statute targeted a particularly egregious form of cross burning on private property, whereas the St. Paul ordinance "applied to any cross burning, not just the act we call malicious cross burning."⁽²⁹⁴⁾ The In re Steven S. court noted that this distinction qualified the California statute for at least three of the R.A.V. exceptions.⁽²⁹⁵⁾ It said that the first exception applied because the "Legislature has singled out an especially offensive mode of expression: not any cross burning . . . but a `threatening' cross burning on a victim's private property."⁽²⁹⁶⁾ The In re Steven S. court said that the California statute also qualified under the second R.A.V. exception because the "statute targets secondary effects of malicious cross burning--the infliction upon a specific victim of immediate fear and intimidation and a threat of future harm--rather than the racist message conveyed."⁽²⁹⁷⁾ The In re Steven S. court further stated that the California statute satisfied the final, catch-all exception that permits content-based discrimination of a proscribable class of expression when "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."⁽²⁹⁸⁾

In re M.S.⁽²⁹⁹⁾ examined the constitutionality of another California hate-crime statute.⁽³⁰⁰⁾ Like the statutes in R.A.V. and Vawter, the California statute referred to an array of group-oriented disfavored topics.⁽³⁰¹⁾ Unlike the treatments of the statutes previously discussed, however, the California court of appeals limited the reach of its statute not to fighting words, but to the proscribable class of expression known as true threats.⁽³⁰²⁾ While the In re M.S. court said that the California statute was a content-based regulation of a proscribable class of expression, the statute fell within at least three of the R.A.V. exceptions.⁽³⁰³⁾ The In re M.S. court said that the first R.A.V. exception was applicable because the statute "focuses on threats which induce a distinct, greater fear of violence . . . and a greater risk the individual will actually be singled out for harm; hence, its content limitation is therefore justified by precisely the same reasons true threats are outside the First Amendment."⁽³⁰⁴⁾ The In re M.S. court said that the "secondary effects" exception applied to the California statute because it proscribed the secondary effects of "`the act of discrimination and differential treatment based on race or other status--not the thought behind the act.'"⁽³⁰⁵⁾ Finally, the In re M.S. court said that the California statute fell within the R.A.V. catch-all exception because it was "not calculated to suppress bigoted ideas."⁽³⁰⁶⁾

The California Supreme Court affirmed the lower court's ruling.⁽³⁰⁷⁾ The California Supreme Court declared that the California statute was "dissimilar in crucial respects to the St. Paul ordinance."⁽³⁰⁸⁾ The California Supreme Court said that while the St. Paul ordinance clearly regulated expression, the California statute only regulated the conduct of willful interference that incorporated content-based expression within the "proscribable category of true threats."⁽³⁰⁹⁾ To this extent, the California Supreme Court saved the statute by virtue of R.A.V.'s "sweeping up" and final, catch-all exceptions.⁽³¹⁰⁾

The foregoing analysis illustrates the inconsistent, capricious, and poorly understood applications of the R.A.V. exceptions.⁽³¹¹⁾ Depending on a particular court, one statute may fail to satisfy the R.A.V. exceptions, while a similar statute may satisfy each R.A.V. exception.⁽³¹²⁾ Sometimes, courts will not even consider the R.A.V. exceptions.⁽³¹³⁾ Within the context of hate-crime legislation regulating expression, the absence of a clear, unifying application of these R.A.V. principles beckons for answers to certain key questions.⁽³¹⁴⁾ These questions include: 1) Must a court actually find that a statute extends or is limited to a proscribable class of expression before it may review the statute under consideration of the exceptions?⁽³¹⁵⁾ 2) Even if such an actual finding were made, must a court then review the statute in light of the exceptions?⁽³¹⁶⁾ 3) Did the Court intend the "secondary effects" and "sweeping up" exceptions to be part of one larger exception?⁽³¹⁷⁾ 4) What is the precise meaning of the first R.A.V. exception?⁽³¹⁸⁾ 5) What mechanism prevents a state's highest court, which is sympathetic to the legislative purpose of a statute, from simply applying the final, catch-all exception under the guise of a limited construction?⁽³¹⁹⁾

C.  R.A.V. and Penalty Enhancement Statutes

Almost one year after the Supreme Court spoke in R.A.V., it addressed the constitutionality of hate-crime statutes regulating motive or penalty enhancement statutes⁽³²⁰⁾ in Wisconsin v. Mitchell.⁽³²¹⁾ In Mitchell, the Court examined the constitutionality of a Wisconsin penalty enhancement statute that increased the fines and sentences for certain violent crimes when the perpetrator selected the victim on the basis of specific identifying characteristics.⁽³²²⁾ Relying on R.A.V., the Wisconsin Supreme Court held that the statute was unconstitutional.⁽³²³⁾ "While the St. Paul ordinance invalidated in R.A.V. is clearly distinguishable from the [Wisconsin] . . . statute in that it regulates fighting words rather than merely the actor's biased motive, the [R.A.V.] Court's analysis lends support to our conclusion that the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees."⁽³²⁴⁾ "[T]he [Wisconsin] hate crimes statute is facially invalid because it directly punishes a defendant's constitutionally protected thought."⁽³²⁵⁾

In unanimously reversing the Wisconsin court's decision, the United States Supreme Court rejected respondent Mitchell's argument that the statute was not valid because "it punishes [his] discriminatory motive."⁽³²⁶⁾ The Court said that motive is a constitutionally legitimate basis on which to regulate.⁽³²⁷⁾ "Title VII . . ., for example, makes it unlawful for an employer to discriminate against an employee `because of such individual's race, color, religion, sex, or national origin.'"⁽³²⁸⁾ "[I]n R.A.V. . . ., we cited Title VII . . . as an example of a permissible content-neutral regulation of conduct."⁽³²⁹⁾

Ultimately, the Mitchell Court drew a sharp distinction between the objectives of the St. Paul ordinance and the Wisconsin statute.⁽³³⁰⁾ "[W]hereas the ordinance struck down in R.A.V. was explicitly directed at expression . . ., the statute in this case is aimed at conduct unprotected by the First Amendment."⁽³³¹⁾

Thus, in not extending R.A.V. to the Wisconsin statute, the Supreme Court created a dichotomy whereby the constitutionality of a hate-crime statute would depend on whether it more closely resembled the impermissibly content-based St. Paul ordinance regulating expression or the permissibly content-based Wisconsin statute⁽³³²⁾ providing additional penalties for specific types of criminal acts.⁽³³³⁾ The constitutionality of the latter type of statute was predicated not on personal belief, per se, but on the illegal manifestation of that belief.⁽³³⁴⁾ While the R.A.V. Court said that a state may not selectively proscribe a subclass of prejudicial expression, the Mitchell Court said that a state may selectively penalize a subclass of prejudicial thought, provided that the thought serves as motivation for criminal conduct.⁽³³⁵⁾ Yet, some believe that such a nice distinction may vitiate the R.A.V. ruling.⁽³³⁶⁾ Others believe that R.A.V. and Mitchell are simply irreconcilable or indistinguishable.⁽³³⁷⁾ Still others believe that the difference between the two cases is substantial.⁽³³⁸⁾ In any event, in the fourteen months after the Mitchell ruling, sixteen states created penalty enhancement legislation.⁽³³⁹⁾

D.  R.A.V. in Other Post-R.A.V. Contexts

1.  R.A.V. and Campus Speech

Courts have applied the R.A.V. principles in contexts other than those associated with the kind of hate-crime legislation discussed above.⁽³⁴⁰⁾ One such area involves expression within educational settings. In Dambrot v. Central Michigan University,⁽³⁴¹⁾ a Michigan court granted the plaintiff's motion for summary judgment and permanently enjoined a university, part of the state system, from enforcing its "discrimination harassment policy."⁽³⁴²⁾ In Dambrot, the plaintiff basketball coach used the word "nigger" in addressing his players, some of whom were black.⁽³⁴³⁾ The University said that the use of this term violated its policy against racial and ethnic harassment, which sought to prevent "`any intentional, unintentional . . . verbal . . . behavior that subjects an individual to an intimidating . . . environment by . . . using symbols, epitaphs [sic] or slogans that infer negative connotations about an individual's racial or ethnic affiliation.'"⁽³⁴⁴⁾ The Michigan court granted the summary judgment in part because

[j]ust as in R.A.V., the CMU policy confines its purpose to particular topics: race and ethnicity. Fighting words having to do with other, non-targeted topics may be used ad libitum on campus no matter how vile or harmful . . . . It therefore imposes upon a speaker the kind of "special prohibitions" [struck down] in R.A.V.⁽³⁴⁵⁾

The Dambrot court also said that the policy engaged in the kind of viewpoint discrimination that the R.A.V. Court had denounced.⁽³⁴⁶⁾ The court of appeals relied on R.A.V. in affirming the lower court's ruling.⁽³⁴⁷⁾

In IOTA v. George Mason University,⁽³⁴⁸⁾ the Fourth Circuit affirmed a district court's granting of summary judgment in an action for an injunction "seeking to nullify sanctions imposed" on the plaintiff fraternity by the defendant university.⁽³⁴⁹⁾ In IOTA, the fraternity ran a skit that it called the "ugly woman contest," in which several male members dressed as "caricatures of different types of women including one member [who] dressed as an offensive caricature of a black woman."⁽³⁵⁰⁾ The University said that the fraternity's behavior violated George Mason's "mission statement,"⁽³⁵¹⁾ which, by way of incorporation, served to "create a non-threatening, culturally diverse learning environment for students of all races and backgrounds, and of both sexes."⁽³⁵²⁾ As a result, the University imposed various sanctions on the fraternity.⁽³⁵³⁾ The court of appeals relied, in part, on R.A.V. in affirming the district court's granting of IOTA's motion for summary judgment.⁽³⁵⁴⁾ The IOTA court said that the University punished the fraternity because its "ugly woman contest" conveyed a message that "ran counter to the views the University sought to communicate to its students and the community."⁽³⁵⁵⁾ The IOTA court added that, because the University would not punish those whose expressive activity would further the goals of the mission statement, it engaged in the kind of viewpoint discrimination ruled impermissible by the R.A.V. Court.⁽³⁵⁶⁾ "The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint."⁽³⁵⁷⁾

Both Dambrot and IOTA involved university "policies" designed to curb discriminatory harassment or advance certain social goals, such as cultural diversity.⁽³⁵⁸⁾ Unlike the R.A.V.-Vawter and Sheldon-Ramsey-T.B.D. classes of statutes, these policies were not speech codes in the sense that their primary objectives were to regulate certain well-defined categories of expression.⁽³⁵⁹⁾ Still, the courts in both Dambrot and IOTA said that the policies effectively realized the outcome that the R.A.V. Court ruled impermissible--the imposition of viewpoint discrimination.⁽³⁶⁰⁾

Since the 1980s, anywhere between 100 and 200 universities have enacted campus speech codes that have served as "outright bans or qualified restrictions on hate speech."⁽³⁶¹⁾ Many universities have either abandoned, revised, or not enforced their speech codes in the wake of R.A.V.⁽³⁶²⁾ One of the first applications of R.A.V. to a campus speech code occurred in 1995 when a California Superior Court judge struck down Stanford University's campus speech code.⁽³⁶³⁾ The Stanford code prohibited students from "making inflammatory statements based on a fellow student's race, sex, handicap, religion or sexual orientation."⁽³⁶⁴⁾ The superior court ruled that the Stanford code was an impermissible regulation of expressive conduct.⁽³⁶⁵⁾ The court rejected Stanford's argument that the code targeted discriminatory conduct and only incidentally "swept up" forms of expression.⁽³⁶⁶⁾

2.  R.A.V. and Access to Abortion Clinics

Several other cases involved the use of R.A.V. in unsuccessful attempts to overturn the Freedom of Access to Clinic Entrances Act of 1994 (FACE).⁽³⁶⁷⁾ In relevant part, FACE imposes criminal and civil penalties against one who "`by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with any person because that person is . . . obtaining or providing reproductive health services.'"⁽³⁶⁸⁾ In light of R.A.V., some have tried to argue that FACE was impermissibly content-based because, even though "Congress could . . . have proscribed all force, threats, and obstruction," it proscribed "only those instances of force, threats, and obstruction motivated by a desire to prevent or punish access to reproductive health services."⁽³⁶⁹⁾ Courts have responded that FACE's "language is directed at actions, not words"⁽³⁷⁰⁾

3.  R.A.V. and Civil Rights

Two civil rights cases illustrate further the specious applications of the R.A.V. exceptions.⁽³⁷¹⁾ In one case, United States v. Lee,⁽³⁷²⁾ the Eighth Circuit rejected the federal government's argument that a federal civil rights conspiracy law incidentally "swept up" the expressive activity of cross burning vis-à-vis R.A.V.'s "sweeping up" exception, because cross burning "is not analogous to the examples [of treason and sexual harassment] set forth in R.A.V."⁽³⁷³⁾ At the same time, in United States v. Hayward,⁽³⁷⁴⁾ the Seventh Circuit accepted the same argument as it applied to a federal housing civil rights statute.⁽³⁷⁵⁾ Unlike the Lee court, the Hayward court did not seem to care whether cross burning was analogous to the examples that the R.A.V. Court had cited in consideration of the "sweeping up" exception.⁽³⁷⁶⁾

4.  R.A.V. and Commercial Speech

Several cases have examined R.A.V.'s impact on content-based regulation of commercial speech. Commercial speech merits an intermediate level of First Amendment protection.⁽³⁷⁷⁾ Any content-based regulation of commercial speech has been subjected to a level of scrutiny that is less stringent than the strict scrutiny that is normally applied to content-based regulations of speech that is fully protected by the First Amendment.⁽³⁷⁸⁾

The R.A.V. Court's application of strict scrutiny to a content-based regulation of an entirely proscribable category of expression⁽³⁷⁹⁾ has presented this question: Are content-based regulations of commercial speech now rightly subject to strict scrutiny?⁽³⁸⁰⁾

Without clear guidance from the R.A.V. Court, lower courts have not answered this question uniformly.⁽³⁸¹⁾ Some courts have devised a two-tiered level of analysis whereby they first apply an intermediate level of scrutiny to a content-based regulation of commercial speech and, only if the regulation satisfies that standard, do they apply the more rigorous standard of strict scrutiny.⁽³⁸²⁾ Some courts have demurred.⁽³⁸³⁾ One court asserted that the fact that the United States Supreme Court did not refer to R.A.V. in a subsequent commercial speech case "is extremely persuasive evidence that [intermediate scrutiny] is the correct standard."⁽³⁸⁴⁾ In any event, this serves as yet another issue that calls for judicial clarification in the aftermath of R.A.V.

  Conclusion

In the closing portion of his R.A.V. concurrence, Justice White admonished that the majority's holding was "mischievous . . . and will surely confuse the lower courts."⁽³⁸⁵⁾ The evidence is plain that Justice White's warning proved prescient. Since 1992, the lower courts have applied R.A.V. in ways that are arbitrary, incoherent, and, at times, self-serving.⁽³⁸⁶⁾

Just as the Mitchell Court spoke with clarity on the constitutionality of penalty enhancement statutes,⁽³⁸⁷⁾ the Court should now clarify its holding in R.A.V.⁽³⁸⁸⁾ In this regard, the Court must give precise, contextual meaning to the R.A.V. prohibition against content discrimination within a larger class of proscribable expression.⁽³⁸⁹⁾ It must recast the R.A.V. exceptions in a fashion that is clear and unambiguous, and safeguard them from specious application.⁽³⁹⁰⁾

In a broader sense, there are those who believe that the Court should overturn the R.A.V. holding altogether.⁽³⁹¹⁾ Such individuals maintain that a city or state should have the prerogative to determine which topics of proscribable hate speech impose the greatest harm to its social fabric.⁽³⁹²⁾ Indeed, Justice Blackmun saw "great harm in preventing the people of [a city] from specifically punishing the . . . fighting words that so prejudice their community."⁽³⁹³⁾ Who, after all, stands better able to redress a locality's most pressing social antagonisms than those legislative authorities most able to detect them?⁽³⁹⁴⁾ In this way, the St. Paul ordinance may have represented nothing more than a "pragmatic desire to respond directly to the most virulent and dangerous formulation of bias-motivated incitements to violence."⁽³⁹⁵⁾ Perhaps the day will arrive when a substantially different Court joins in such a determination. Until then, the chaotic landscape that is the legacy of R.A.V. implores the present Court for some kind of reformation. The sanctity of free expression requires no less.

Jonathan M. Holdowsky^*

1. R.A.V. v. City of St. Paul, 505 U.S. 377, 415 (1992) (White, J., concurring in the judgment).

2. United States v. Hayward, 6 F.3d 1241, 1258 (7th Cir. 1993) (Flaum, J., concurring).

3. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

4. The R.A.V. Court was unanimous in the judgment. Id. at 378. Only five justices, however, supported the Court's opinion, which was written by Justice Scalia. Id.; see also infra part III.B. Justices White, Blackmun, O'Connor, while concurring in the judgment, R.A.V., 505 U.S. at 397 (White, J., concurring in the judgment), sharply differed with the majority's rationale. See id. at 397-414 (White, J., concurring in the judgment); see also infra part III.C. Justice Stevens, for the most part, agreed with the minority opinion, although he wrote a separate concurring opinion as well. R.A.V., 505 U.S. at 416 (Stevens, J., concurring in the judgment); see also infra part III.D.

5. See generally R.A.V., 505 U.S. at 379-96. For a discussion of proscribable classes of expression, see infra notes 24-34 and accompanying text.

6. For a discussion of the R.A.V. exceptions, see infra notes 96-110 and accompanying text. The R.A.V. Court noted that the statute in question fell within none of the exceptions. R.A.V., 505 U.S. at 393-95.

7. See supra note 4.

8. For a partial list of critical assessments concerning the R.A.V. decision, see infra notes 179-80, 183.

9. Id. at 407 (White, J., concurring in the judgment).

10. See R.A.V., 505 U.S. at 407-09 (White, J., concurring in the judgment); id. at 415 (Blackmun, J., concurring in the judgment).

11. The fighting words doctrine was first articulated in Chaplinsky v. New Hampshire, 315 U.S. 568, 570-72 (1942). Such words, the Chaplinsky Court held, did not merit First Amendment protection. Id. at 571. See infra part II.B.1-2 for a discussion of Chaplinsky and its progeny.

12. See R.A.V., 505 U.S. at 407 (White, J., concurring in the judgment) ("[T]oday's decision would call into question the constitutionality of the statute making it illegal to threaten the life of the President."). See infra notes 24-34 for a discussion of the proscribable classes of expression.

13. See infra notes 20-74 and accompanying text.

14. See infra notes 75-176 and accompanying text.

15. See infra notes 177-384 and accompanying text.

16. See infra notes 189-319 and accompanying text.

17. See infra notes 320-39 and accompanying text.

18. See infra notes 340-84 and accompanying text.

19. See infra notes 385-95 and accompanying text.

20. U.S. Const. amend. I. The United States Supreme Court in Gitlow v. New York, 268 U.S. 652, 666 (1925), held that the free speech provisions of the First Amendment were applicable to the states.

21. In Palko v. Connecticut, 302 U.S. 319, 327 (1937), for example, the Court proclaimed freedom of expression as "the matrix, the indispensable condition of nearly every other form of freedom." The framers' historical intent in this regard is ambiguous. See generally Kent Greenawalt, Insults and Epithets: Are They Protected Speech?, 42 Rutgers L. Rev. 287 (1990). Commentators, however, have developed a series of philosophical rationales for the relative immunity that free expression enjoys. The first such rationale advances that expression of ideas should be unencumbered by regulation because "the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). The United States Supreme Court has widely adopted this so-called "marketplace of ideas" philosophy. See generally Hustler Mag., Inc. v. Falwell, 485 U.S. 46 (1988); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Keyishian v. Board of Regents, 385 U.S. 589 (1967). Still, critics have argued that the marketplace theory unrealistically presumes the inevitable rationality of expression. See generally C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964 (1978). Others have contended that the philosophical economic underpinning of the marketplace theory--the greatest social benefit flows from the least regulation--is, itself, suspect. See generally Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J. 1.

One scholar suggested a second rationale for freedom of expression. See Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 24-27, 39 (1948). He posited that the aim of the First Amendment's provision for free expression is rooted in the means provided by such uncensored expression in achieving societal self-governance. Id.

The principle of the freedom of speech springs from the necessities of the program of self-government. . . . It is a deduction . . . that public issues shall be decided by universal suffrage.

. . . .

. . . [T]he limited guarantee of the freedom of a man's wish to speak is radically different in intent from the unlimited guarantee of the freedom of public discussion, which is given by the First Amendment. . . . [The latter protects the speech] of a citizen who is planning for the general welfare.Id. at 26-27, 39. Some critics assail the narrow political foundation on which Meiklejohn based his rationale. See generally Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591 (1982).

A third rationale suggests that freedom of expression is essential in order for the individual and, thus, society to achieve self-fulfillment. For various manifestations of the self-fulfillment rationale, see David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45 (1974); Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204 (1972).

Among other, less widely recognized, rationales is one which advances the notion that free expression provides a check against the abuse of official power. See generally Vincent Blasi, The Checking Value in First Amendment Theory, 1977 Am. B. Found. Res. J. 521. Another rationale posits that free speech serves as a "safety valve," and thereby promotes social stability. See generally T. Emerson, The System of Freedom of Expression (1970). Still another among this group of secondary rationales considers free speech as the hallmark of a tolerant society. See generally Lee C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986).

22. Speech is not restricted to verbal expression. The United States Supreme Court has a strong tradition of affording First Amendment protection to expressive conduct or symbolic speech. See Stromberg v. California, 283 U.S. 359, 368-70 (1931) (holding that the display of a red flag is protected speech). Recently, the Court afforded similar protection to the burning of the American flag. See, e.g., United States v. Eichman, 496 U.S. 310, 317-18 (1990); Texas v. Johnson, 491 U.S. 397, 418-20 (1989). Other examples of protected expressive conduct include Clark v. Community for Creative Non-Violence, 468 U.S. 288, 290 (1984) (sleeping overnight on public grounds); Schacht v. United States, 398 U.S. 58, 60-63 (1970) (wearing of a military uniform); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 514 (1969) (wearing of a black armband).

In granting First Amendment protection to expressive conduct, the Court has steadfastly included performance in such forms as outdoor rock concerts and motion pictures. See Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); Southeastern Promotions v. Conrad, 420 U.S. 546, 558 (1975); Jenkins v. Georgia, 418 U.S. 153, 161 (1974). The Court has also said that "[s]exual expression which is indecent but not obscene is protected by the First Amendment." Sable Communications v. FCC, 492 U.S. 115, 126 (1989). In this regard, the Court has afforded First Amendment protection to non-obscene nude dancing. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991).

Although the Supreme Court grants some First Amendment protection to expressive conduct, it does not necessarily follow that such conduct garners the same level of protection enjoyed by verbal expression. To this end, the Barnes Court said that "nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment." Barnes, 501 U.S. at 566 (emphasis added); see also Johnson, 491 U.S. at 406 (suggesting that government has a "freer hand" in regulating expressive conduct than verbal expression (citing City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); United States v. O'Brien, 391 U.S. 367, 376-77 (1967))).

In assessing whether a particular type of conduct carries an aspect of expression, the Court has used a standard first articulated in Spence v. Washington, 418 U.S. 405 (1974), and ultimately crystallized in Johnson, 491 U.S. at 404. Specifically, the Court has asked whether "`[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.'" Johnson, 491 U.S. at 404 (alterations in original) (quoting Spence, 418 U.S. at 410-11).

23. The strict scrutiny doctrine, in the First Amendment context, holds that when a government interferes, even slightly, with the content of a message, that government "must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Widmar v. Vincent, 454 U.S. 263, 270 (1981) (footnote omitted) (citing Carey v. Brown, 447 U.S. 455, 461, 464-65 (1980)); see also Police Dep't v. Mosley, 408 U.S. 92 (1972); Cantwell v. Connecticut, 310 U.S. 296 (1940). A content-based regulation will not be considered sufficiently narrowly drawn if the government has less restrictive means available to achieve its compelling state interest. See, e.g., Boos v. Barry, 485 U.S. 312, 328-29 (1988). Although strict scrutiny is generally fatal to content-based regulations, a recent exception to this notion occurred in Burson v. Freeman, 504 U.S. 191 (1992). In Burson, the Court upheld a total ban of electioneering within 100 feet of polling places. Id. at 211.

24. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (footnote omitted). Such classes of expression are "not within the area of constitutionally protected speech." Roth v. United States, 354 U.S. 476, 483 (1957) (citing Beauharnais v. Illinois, 343 U.S. 250, 266 (1952)); see also infra notes 26-31 and accompanying text.

25. R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (citing Simon & Schuster v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 124 (1991) (Kennedy, J., concurring); Roth v. United States, 354 U.S. 476 (1957); Beauharnais v. Illinois, 343 U.S. 250 (1952); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). The Court has, more generally, maintained that freedom of expression is not absolute. See generally Konigsberg v. State Bar, 366 U.S. 36 (1961); Terminiello v. Chicago, 337 U.S. 1 (1949); Chaplinsky v. New Hampshire 315 U.S. 568 (1942).

26. Roth, 354 U.S. at 476; see also Miller v. California, 413 U.S. 15, 20-23 (1973).

27. Beauharnais, 343 U.S. at 266 (holding that libelous utterances are not "within the area of constitutionally protected speech"). The United States Supreme Court, in cases decided after Beauharnais, narrowed the scope of regulations of defamatory statements. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 354 (1974); New York Times Co. v. Sullivan, 376 U.S. 254, 283-92 (1964).

28. New York v. Ferber, 458 U.S. 747, 765-66 (1982) (upholding the validity of a state statute that proscribed the depiction of minors engaged in the live presentation of non-obscene sexual acts).

29. Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (holding invalid a state statute that punished mere advocacy of violence without imminent likelihood that such violence would occur).

30. Watts v. United States, 394 U.S. 705, 705 (1969) (affirming facial validity of a statute that proscribed threats only against the President of the United States).

31. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). The United States Supreme Court defined fighting words as those "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. (footnote omitted).

32. See, e.g., Harry Kalven, Jr., The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev. 1, 1. Professor Kalven discusses his "two-level" theory of speech in which speech is either "protected" or "unprotected" depending upon the particular value system of the Court at the time. Id. at 10.

33. For example, in 1942, the Supreme Court excluded purely commercial speech from First Amendment protection. Valentine v. Chrestensen, 316 U.S. 52, 54 (1942). In 1976, however, the Court abandoned this holding and ruled that even purely commercial speech deserves some intermediate level of First Amendment protection. Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 748, 770-73 (1976).

In Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980), the Court articulated a four-pronged test of intermediate scrutiny that a governmental entity must satisfy in order to regulate commercial expression. First, the commercial expression must refer to lawful activity and not be misleading. Id. at 563-64. Second, the governmental entity must establish a substantial interest in regulating the commercial expression, and the regulation "must be in proportion to that interest." Id. at 564. Third, the regulation must directly advance the asserted governmental interest. Id. Finally, "the restriction must directly advance the state interest involved [and] . . . if the government interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive." Id.; see also R.A.V. v. City of St. Paul, 505 U.S. 377, 427-28 (1992) (Stevens, J., concurring in the judgment).

34. See infra part II.B.2.

35. See, e.g., Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 122-23 (1991); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 543-44 (1980); see also supra note 23 and accompanying text.

36. R.A.V., 505 U.S. at 386-87 n.5. "[Justice White] cites not a single case (and we are aware of none) that even involved, much less considered and resolved, the issue of content discrimination through regulation of `unprotected' speech." Id.

37. See infra part III.

38. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

39. Id. at 571.

40. Id. at 570. The defendant was a member of the Jehovah's Witness religion. Id. at 569. According to the original complaint, Chaplinsky said to passersby, including police officers, "You are a God damned racketeer . . . a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Id. Chaplinsky acknowledged that he made these statements "with the exception of the name of the Deity." Id.

41. Id. at 569. The whole of the statute read as follows:

No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.Id. (quoting Pub. Laws of N.H. ch. 378, § 2).

42. Id.

43. Chaplinsky, 315 U.S. at 571.

44. Id. ("The spoken, not the written, word is involved. And we cannot conceive that cursing a public officer is the exercise of religion in any sense of the term.").

45. Id. "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Id. at 571-72 (footnote omitted).

46. Id. at 572 (footnote omitted). "It has been well observed that such utterances are no essential part of any exposition of ideas, and are 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." Id. (footnote omitted).

47. Id. at 573 (third alteration in original) (quoting Chaplinsky v. New Hampshire, 18 A.2d 754, 762 (1941)).

48. Chaplinsky, 315 U.S. at 573.

49. Id. (citing Cantwell v. Connecticut, 310 U.S. 296, 311 (1940); Thornhill v. Alabama, 310 U.S. 88, 105 (1940)).

50. Id. at 572.

51. See Victoria L. Handler, Legislating Social Tolerance: Hate Crimes and the First Amendment, 13 Hamline J. Pub. L. & Pol'y 137, 147 (1992). Some commentators thus believe that the injury prong is no longer viable. See generally Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal?, 1990 Duke L.J. 480; Note, The Demise of the Chaplinsky Fighting Words Doctrine: An Argument for Its Interment, 106 Harv. L. Rev. 1129, 1137-40 (1993) [hereinafter Note, The Demise of the Chaplinsky Fighting Words Doctrine]; see also Cohen v. California, 403 U.S. 15, 26 (1971) (rejecting the State's assertion that Cohen's use of profane language amounted to injurious fighting words notwithstanding the absence of any audience reaction). Still, the Court has never definitively overruled the injury prong. See Note, The Demise of the Chaplinsky Fighting Words Doctrine, supra, at 1138. As such, advocates of the injury prong maintain that, in certain egregious circumstances, its use is appropriate. See, e.g., Rosenfeld v. New Jersey, 408 U.S. 901, 906 (1972) (Powell, J., dissenting) ("[A] verbal assault on an unwilling audience may be so grossly offensive and emotionally disturbing as to be the proper subject of criminal proscription . . . .").

52. See Strossen, supra note 51, at 509-10.

53. Terminiello v. Chicago, 337 U.S. 1 (1949); see also supra notes 33-34 and accompanying text (discussing how the Court has shown a willingness to change the status of "excluded" categories).

54. Terminiello, 337 U.S. at 17 (Jackson, J., dissenting).

55. Id. at 21 (Jackson, J., dissenting).

56. Id. at 20 (Jackson, J., dissenting).

57. Id. at 2. The statute read as follows:

All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city . . . shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense.Id. at 1 n.1 (omission in original) (quoting Chicago, Ill., Municipal Code § 193-1 (1939)).

58. Id. at 4 (quoting the trial judge's instructions to the jury).

59. Terminiello, 337 U.S. at 4-5. Overbreadth is a major First Amendment doctrine which holds that constitutionally regulable activities may not be so regulated by legislation "`which sweep[s] unnecessarily broadly and thereby invade[s] the area of protected [First Amendment] freedoms.'" Zwickler v. Koota, 389 U.S. 241, 250 (1967) (quoting NAACP v. Alabama, 377 U.S. 288, 307 (1964)). In order for a statute to be overbroad, it must "sweep[] within its prohibitions what may not be punished under the First . . . Amendment[]." Grayned v. City of Rockford, 408 U.S. 104, 115 (1972). The overbreadth also must be "real [and] substantial [when it is] judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Such overbreadth effectively chills the exercise of free speech in intimidating people not to speak even though they would ultimately prevail in court. An overbroad statute "hangs over [people's] heads like a sword of Damocles." Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting).

60. Terminiello, 337 U.S. at 5.

61. Id. at 4. "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Id. at 5. Terminiello's conviction was reversed even though he might have been convicted under a more narrowly drawn statute. Id. at 6.

62. See id. at 4.

63. Id. (citing Craig v. Harney, 331 U.S. 367, 373 (1947); Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73 (1942); Bridges v. California, 314 U.S. 252, 262 (1941)).

64. Chaplinsky, 315 U.S. at 572 (footnote omitted). The Terminiello Court gave a contextual gloss over the fighting words doctrine in which the totality of the circumstances was to be considered, and not merely the nature of the words themselves as the Chaplinsky Court had suggested. See Terminiello, 339 U.S. at 4-5; see also Laurence H. Tribe, American Constitutional Law § 12-10, at 850 (2d ed. 1988) (positing that the Chaplinsky doctrine concerned the expression's content, not the context within which it was offered); Mark A. Rabinowitz, Nazis in Skokie: Fighting Words or Heckler's Veto?, 28 DePaul L. Rev. 259, 264 (1979). Only one case followed Chaplinsky using this modified "clear and present danger" standard. See Feiner v. New York, 340 U.S. 315, 320-21 (1951). In Feiner, the petitioner had made a speech which included disparaging comments about President Truman, the American Legion, and others. Id. at 317. As the crowd threatened to attack the speaker, the police intervened and arrested the speaker under a state disorderly conduct statute. Id. at 318. A five-to-four Court upheld the conviction of the petitioner asserting that the petitioner's conduct was tantamount to an incitement to riot. Id. at 321. "[O]rdinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker . . . . [However,] the speaker passe[d] the bounds of argument or persuasion and under[took] incitement to riot . . . ." Id. at 320-21 (citation omitted).

In his dissent, Justice Black maintained, that as a matter of law, before the police may interfere with a speaker who is engaged in lawful expression, they must make "all reasonable efforts to protect him"--a requirement that the Feiner majority did not articulate. Id. at 326 (Black, J., dissenting) (footnote omitted). Commentators believe that Feiner would be read quite narrowly today. See Tribe, supra, § 12-10, at 855.

65. See Harry Kalven, Jr., The Negro and the First Amendment 140-45 (1965); see also Rabinowitz, supra note 64, at 274.

66. See, e.g., City of Houston v. Hill, 482 U.S. 451, 462 (1987) ("The Constitution does not allow such [insulting] speech to be made a crime." (footnote omitted)); Gooding v. Wilson, 405 U.S. 518, 528 (1972) (striking down a Georgia statute on overbreadth grounds because it proscribed language that was merely insulting); Cohen v. California, 403 U.S. 15, 22-26 (1971) (holding that absent an intent to incite illegal conduct, the use of profane language is not per se excisible from political discourse); Street v. New York, 394 U.S. 576, 592 (1969) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.").

67. See Stephen W. Gard, Fighting Words As Free Speech, 58 Wash. U. L.Q. 531, 536 (1980) ("[The Chaplinsky doctrine is] nothing more than a quaint remnant of an earlier morality that has no place in a democratic society dedicated to the principle of free expression."); Thomas F. Shea, "Don't Bother to Smile When You Call Me That"--Fighting Words and the First Amendment, 63 Ky. L.J. 1, 1-2 (1975) (concluding that the Supreme Court has afforded fighting words the mantle of First Amendment protection).

68. See Kathleen M. Sullivan, The First Amendment Wars, New Republic, Sept. 28, 1992, at 35, 40 (advancing the idea that violence in response to personal insult is a particularly male-oriented characteristic).

69. See, e.g., Sean M. SeLegue, Campus Anti-Slur Regulations: Speakers, Victims, and the First Amendment, 79 Cal. L. Rev. 919, 933-34 (1991).

70. See, e.g., Vincent Blasi, The Pathological Perspective and the First Amendment, 85 Colum. L. Rev. 449, 474 (1985).

71. Gooding v. Wilson, 405 U.S. 518, 537 (1972) (Blackmun, J., dissenting).

72. See Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech on Campus, 1990 Duke L.J. 431, 437 n.29 ("[T]he Court has yet to reject . . . Chaplinsky . . . .").

73. See, e.g., State v. Mitchell, 485 N.W.2d 807, 810 (Wis.) (substantiating the manner in which hate-motivated crime has burgeoned in the twentieth century), cert. granted, 506 U.S. 1033 (1992), and rev'd, 508 U.S. 476 (1993); see also Lawrence III, supra note 72, at 431-44 (characterizing racially motivated hate crimes on campus in recent years); see generally, Anti-Defamation League, Hate Crimes Laws: A Comprehensive Guide (1994) [hereinafter Hate Crimes Laws].

74. See, e.g., Lawrence III, supra note 72, at 449-57; see also infra part IV.

75. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

76. Then a minor, the petitioner went through the judicial process known only by his initials--R.A.V. See Edward J. Cleary, Beyond the Burning Cross: The First Amendment and the Landmark R.A.V. Case 4 (1994).

77. R.A.V., 505 U.S. at 379.

78. Id.

79. Id. at 380. The ordinance, St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Leg. Code § 292.02 (1990), read as follows:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.R.A.V., 505 U.S. at 380 (quoting St. Paul, Minn., Leg. Code § 292.02 (1990)).

The petitioner was also charged with a violation of the Minnesota delinquency statute which he did not challenge. Id. at 380 n.2. The United States Supreme Court made a point of stating that the petitioner could have been charged under a number of conduct-based arson and other criminal laws. Id. at 379-80.

80. R.A.V., 505 U.S. at 380 (footnote omitted).

81. Id. (quoting In re Welfare of R.A.V., 464 N.W.2d 507, 510 (Minn.) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)), cert. granted sub nom. R.A.V. v. City of St. Paul, 501 U.S. 1204 (1991), and rev'd, 505 U.S. 377 (1992)). In so constructing the statute, the Minnesota Supreme Court looked to the ordinance's modifying emotive language: "`arouses anger, alarm or resentment in others.'" Id. (quoting In re Welfare of R.A.V., 464 N.W.2d at 510).

82. See id. at 381 ("`[T]he ordinance is a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.'" (quoting In re Welfare of R.A.V., 464 N.W.2d at 511)).

83. See supra note 4 for the majority/minority breakdown of the Justices' majority and concurring opinions.

84. The majority consisted of Chief Justice Rehnquist and Justices Scalia, Kennedy, Souter, and Thomas. R.A.V., 505 U.S. at 378.

85. Id. at 381 ("[W]e are bound by the construction given to [the statute] by the Minnesota court." (citing Posados de Puerto Rico Ass'n v. Tourism of Puerto Rico, 478 U.S. 328, 339 (1986); New York v. Ferber, 458 U.S. 747, 769 n.24 (1982); Terminiello v. Chicago, 337 U.S. 1, 4 (1949))).

86. Id. at 383-84.

87. Id. at 384.

88. Id.

89. R.A.V., 505 U.S. at 385 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

90. Id. at 386. A sound truck is "[a] vehicle . . . having one or more loudspeakers, usu[ally] on top, for area broadcasting." Webster's II New Riverside University Dictionary 1111 (1984).

91. R.A.V., 505 U.S. at 386 (quoting Niemotko v. Maryland, 340 U.S. 268, 282 (1951) (Frankfurter, J., concurring)).

92. See generally Kovacs v. Cooper, 336 U.S. 77 (1949).

93. R.A.V., 505 U.S. at 386.

94. Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Constitutional time, place, or manner restrictions on expression are designed to regulate qualitative, non-communicative aspects of expression, such as loudness, brightness, and access to public facilities. Such restrictions must be content-neutral and, therefore, "`justified without reference to the content of the regulated speech.'" Ward, 491 U.S. at 791 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). Such restrictions must be "narrowly tailored to serve a significant governmental interest." Clark, 468 U.S. at 293. The government must also "`leave open ample alternative channels for communication of the information.'" Metromedia, Inc. v. San Diego, 453 U.S. 490, 516 (1981) (quoting Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976)).

Where expressive conduct is the subject of government regulation, the Court uses a test articulated in United States v. O'Brien, 391 U.S. 367, 377 (1968), to determine whether the regulation is content-neutral. The four-pronged O'Brien test specifies the following:

[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.Id.; see also Clark, 468 U.S. at 298-99 (observing that the test to examine the content neutrality of regulations on verbal speech is virtually the same as the test for expressive conduct articulated in O'Brien).

95. R.A.V., 505 U.S. at 386. Again, such content-neutral regulations must be made "`without reference to the content of the regulated speech.'" Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at 293). A government regulation that proscribed the use of all sound trucks between midnight and 6 a.m. would be permissible because it is content-neutral. A government regulation that proscribed sound trucks that emitted a distinctly anti-government message between midnight and 6 a.m. would not be permissible because it is a content-based time, place, or manner restriction and shows "hostility . . . towards the underlying message expressed." R.A.V., 505 U.S. at 386; see also Frisby v. Schultz, 487 U.S. 474, 487-88 (1988) (upholding a content-neutral proscription on targeted residential picketing); Carey v. Brown, 447 U.S. 455, 470-71 (1980) (striking down a proscription on residential picketing that exempted organized union picketing).

96. R.A.V., 505 U.S. at 387 (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) (citing Leathers v. Medlock, 499 U.S. 439, 448 (1991); FCC v. League of Women Voters, 468 U.S. 364, 383-84 (1984); Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536 (1980); Police Dep't v. Mosley, 408 U.S. 92, 95-98 (1972))).

97. Id. at 388. "Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute. It applies differently in the context of proscribable speech than in the area of fully protected speech." Id. at 387.

98. Id. at 387-88.

99. Id. at 388.

100. Id.

101. R.A.V., 505 U.S. at 388 (citing Kucharek v. Hamaway, 902 F.2d 513, 517 (7th Cir. 1990), cert. denied, 498 U.S. 1041 (1991)). Such a regulation would be impermissible because it discriminates on the basis of the message such obscenity conveys; that is, it is impermissibly content-based. Kucharek, 902 F.2d at 517-18.

102. R.A.V., 505 U.S. at 388 (citing Watts v. United States, 394 U.S. 705, 707 (1969)). Threats of violence are generally outside the protection of the First Amendment because of the public interest in "protecting individuals from the fear of violence, from the disruption that fear engenders; and from the possibility that the threatened violence will occur." Id. Regarding threats exclusively against the President of the United States, Justice Scalia referred to 18 U.S.C. § 871 (1991). R.A.V., 505 U.S. at 388; see also Watts v. United States, 394 U.S. 705, 708 (1969) (upholding facial validity of § 871(a)).

103. R.A.V., 505 U.S. at 388 (emphasis added).

104. Id. at 389 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986)).

105. Id. The "secondary effects" exception implies that the object of the regulation is not to suppress expression, but to control undesirable consequences of the proscribed expression such as, in Justice Scalia's example, corrupting the morals of a minor. See Renton, 475 U.S. at 43 (upholding a zoning ordinance that required all adult theatres to be at least 1000 feet from a residential area, church, school, or park). The Renton Court said that the zoning ordinance was not designed to suppress expression, but rather to control the secondary effects that accompany such adult establishments, including lower property values and higher crime rates. Id. at 47-48.

106. R.A.V., 505 U.S. at 389 (emphasis added) (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 571 (1991) (plurality opinion); Barnes, 501 U.S. at 577 (Scalia, J., concurring); Barnes, 501 U.S. at 582 (Souter, J., concurring); FTC v. Superior Court Trial Lawyers Ass'n, 493 U.S. 411, 425-32 (1990); United States v. O'Brien, 391 U.S. 367, 376-77 (1968)). This exception may be viewed as the corollary to the O'Brien test, which gauged whether a statute regulating conduct with expressive elements was sufficiently content-neutral in design. See supra note 94. This third exception effectively allows a statute that exclusively regulates conduct to reach or "sweep up" a content-based subclass of proscribable expression provided that the impact on the proscribable subclass is incidental to the purpose of the statute. See R.A.V., 505 U.S. at 389-90.

107. R.A.V., 505 U.S. at 389. In this example, the sexually derogatory fighting words represent a subclass of the larger proscribable category of fighting words, which is incidentally "swept up" by the Title VII anti-discrimination statute. See id.

108. Id. at 390. It appears that many commentators and judges treat the "secondary effects" exception and this "sweeping up" exception as part of one larger exception. The "secondary effects" exception applies to statutes that target the harmful consequences that are derivative of proscribable expressive conduct, such as the higher crime rates that often flow from the presence of exotic dancing establishments. See supra note 105. In contrast, the "sweeping up" exception applies to statutes that are designed to regulate conduct and, which only incidentally, reach a subclass of proscribable expression. See R.A.V., 505 U.S. at 389. The confusion in this regard may be traced to the fact that the Court never examined the St. Paul ordinance in light of the "sweeping up" exception. See id. at 394. The Court's decision not to examine the ordinance ostensibly occurred because "St. Paul acknowledge[d] that the ordinance [was] directed at expression." Id. at 392 (emphasis added). Apparently, Justice White recognized this confusion when he asserted that the "majority's conflation of the [two exceptions] . . . will haunt us and the lower courts." Id. at 409 n.11 (White, J., concurring in the judgment) (citing O'Brien, 391 U.S. at 376-77).

109. That is, these exceptions allow the government to make distinctions within the larger, unprotected class of expression because such distinctions do not reflect a sanctioned point of view. See R.A.V., 505 U.S. at 390.

110. Id. ("We cannot think of any First Amendment interest that would stand in the way of a State's prohibiting only those obscene motion pictures with blue-eyed actresses.").

111. Id. at 391.

112. Id. For example, the St. Paul ordinance would reach the deliberate burning of a cross that "`arouses anger . . . on the basis of race,'" but would not reach an anti-gay appellation deliberately placed on the home of a homosexual couple, regardless of the degree to which such an act manifested hostility. Id. at 380 (quoting St. Paul, Minn., Leg. Code § 292.02 (1990)). "The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on [officially] disfavored subjects." Id. at 391 (emphasis added).

113. Id.

114. R.A.V., 505 U.S. at 391.

115. Id. See supra note 79 for the wording of the St. Paul statute.

116. R.A.V., 505 U.S. at 391-92. Of course, Justice Scalia's "viewpoint discrimination" argument is vitiated by the fact that the word "papist" is not the only channel of expression open to that individual. See id. at 435 (Stevens, J., concurring in the judgment). Such an individual could conceivably rejoinder that "`all advocates of religious tolerance are misbegotten'" and seemingly not run afoul of the St. Paul ordinance. See id. (Stevens, J., concurring in the judgment).

117. Id. at 392. Rather, he said that the statute was directed against "messages of . . . hatred and in . . . this case, messages `based on virulent notions of racial supremacy.'" Id. (quoting In re Welfare of R.A.V., 464 N.W.2d 507, 511 (Minn.), cert. granted sub nom. R.A.V. v. City of St. Paul, 501 U.S. 1204 (1991), and rev'd, 505 U.S. 377 (1992)).

118. Id. at 393; see also supra notes 96-110 and accompanying text.

119. R.A.V., 505 U.S. at 393; see also supra notes 99-103 and accompanying text.

120. R.A.V., 505 U.S. at 393.

121. Id. ("St. Paul has not . . . for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner.").

122. Id. at 393-94 (emphasis added).

123. Id. at 394 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)); see also supra notes 104-05, 108 and accompanying text.

124. R.A.V., 505 U.S. at 394 ("According to St. Paul, the ordinance is intended . . . to `protect against the victimization of a perso