Symbolic speech

“The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long recognized that its protection does not end at the spoken or written word.”136 Thus wrote the Supreme Court when it held that a statute prohibiting flag desecration violated the First Amendment. Such a statute is not content-neutral if it is designed to protect “a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals.”137

By contrast, the Court upheld a federal statute that made it a crime to burn a draft card, finding that the statute served “the Government’s substantial interest in assuring the continuing availability of issued Selective Service certificates,” and imposed only an “appropriately narrow” incidental restriction of speech.138 Even if Congress’s purpose in enacting the statute had been to suppress freedom of speech, “this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”139

In 1992, in R.A.V. v. City of St. Paul, the Supreme Court struck down an ordinance that prohibited the placing on public or private property of a symbol, such as “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.”140 Read literally, this ordinance would clearly violate the First Amendment, because, “[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”141

In this case, however, the Minnesota Supreme Court had construed the ordinance to apply only to conduct that amounted to fighting words. Therefore, the question for the Supreme Court was whether the ordinance, construed to apply only to fighting words, was constitutional. The Court held that it was not, because, although fighting words may be proscribed “because of their constitutionally proscribable content,” they may not “be made the vehicles for content discrimination unrelated to their distinctively proscribable content.”142 Thus, the government may proscribe fighting words, but it may not make the further content discrimination of proscribing particular fighting words on the basis of hostility “towards the underlying message expressed.”143

In this case, the ordinance banned fighting words that insult “on the basis of race, color, creed, religion or gender,” but not “for example, on the basis of political affiliation, union membership, or homosexuality.... The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”144 This decision does not, of course, preclude prosecution for illegal conduct that may accompany cross burning, such as trespass, arson, or threats. As the Court put it: “St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”145

In a subsequent case, the Supreme Court held that its opinion in R.A.V. did not mean that statutes that impose additional penalties for crimes that are motivated by racial hatred are unconstitutional. Such statutes imposed enhanced sentences not for bigoted thought, but for the commission of crimes that can inflict greater and individual and societal harm because of their bias-inspired motivation. A defendant’s motive has always been a factor in sentencing, and even in defining crimes; “Title VII [of the Civil Rights Act of 1964], 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.’”146

In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.147 Such a prohibition does not discriminate on the basis of a defendant’s beliefs &mdash; “as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. . . . The First Amendment permits Virginia to outlaw cross burning done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages. . . .”148