R.A.V. v. City of St. Paul

On 22 June 1992, the Supreme Court issued its decision. In a unanimous vote, it reversed the Minnesota Supreme Court's ruling and decreed the St. Paul ordinance unconstitutional. Justice Scalia wrote a majority opinion signed by four other justices. The remaining four justices issued various opinions outlining their reasoning for coming to the same judgment.

"Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible," Scalia declared in his opinion. But he went on to decry the city of St. Paul's method for addressing the problem of bias crime. In his view, the ordinance was too selective in picking out certain topics and types or expression for official disfavor. "Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas," Scalia wrote--i.e. only ideas that incite on the basis of race, creed, religion, or gender. If a city wants to ban fighting words, Scalia declared, it must ban all fighting words, not those in a few selected categories. As he analogized, "[T]he government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government." He went on to laud the city of St. Paul for taking steps to safeguard the human rights of all its citizens, but recommended other methods to pursue that end that did not infringe upon First Amendment rights.

In a separate opinion, Justice White joined in the judgment but expressed the decidedly different view that the government does in fact have a right to discriminate among different types of speech. He lampooned Scalia's "all-or-nothing" formulation for banning fighting words. As White wrote:

It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil . . . but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is, by definition, worthless and undeserving of constitutional protection.

However, White agreed with Scalia that the St. Paul ordinance was too broadly drawn. "[T]he ordinance reaches conduct that is unprotected," White opined. "[I]t also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment." Thus, in White's view, if the ordinance had been tailored more narrowly to include only those expressions that truly incite violence, it would have passed constitutional muster.