505 U.S. 377 (1992)
In the predawn hours of June 21, 1990, petitioner R.A.V., then a juvenile, and several other teenagers assembled a crudely made cross by taping together broken chair legs and burned the cross inside the fenced yard of a black family that lived across the street from the house where R.A.V. was staying.1 Although this conduct could have been punished under several Minnesota statutes carrying significant penalties, the City of St. Paul chose to charge R.A.V. under the St. Paul Bias-Motivated Crime Ordinance.2
The ordinance provides that 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.3
R.A.V. moved to dismiss the charge on the ground that the ordinance was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment, and the trial court granted the motion.4 The Minnesota Supreme Court reversed, construing the ordinance to reach only fighting words and concluding that it was not impermissibly content-based.5 This Court granted certiorari.6
Whether the St. Paul Bias-Motivated Crime Ordinance is facially invalid under the First Amendment?7
The First Amendment generally prevents government from proscribing speech or expressive conduct because of disapproval of the ideas expressed.8 Content-based regulations are presumptively invalid.9 Even within categories of proscribable speech such as fighting words, the government may not discriminate on the basis of content or viewpoint.10 This rule applies unless the distinction is based on the very reason the entire class of speech is proscribable or on secondary effects unrelated to the content of the speech.11
Yes. The ordinance as construed by the Minnesota Supreme Court reaches only fighting words but applies solely to those that insult or provoke violence on the basis of race, color, creed, religion or gender.12 Displays containing abusive invective are permissible unless addressed to one of the specified disfavored topics.13 The city has not shown that content discrimination is reasonably necessary to achieve its compelling interests because an ordinance not limited to the favored topics would have precisely the same beneficial effect.14
The ordinance regulates speech on the basis of the subjects the speech addresses rather than secondary effects within the meaning of Renton v. Playtime Theatres, Inc.15 The content-based nature of the ordinance is evident on its face because it regulates speech that arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.16 A particular belief about those characteristics causes the proscribed reaction.17 The ordinance therefore imposes special prohibitions on speakers who express views on disfavored subjects.18 It goes beyond content discrimination to actual viewpoint discrimination by allowing some speakers to use fighting words while requiring others to follow different rules.19 The selectivity of the restriction is not justified by any neutral basis that eliminates the realistic possibility of official suppression of ideas.20
The ordinance is facially invalid under the First Amendment.21
Related opinions on this issue
Joined by Blackmun, O'connor, And Stevens, Jj.
Justice White concurred in the judgment.22 He agreed that the St. Paul ordinance is unconstitutional. However, he concluded that the ordinance is impermissibly overbroad rather than content-based.23
The ordinance criminalizes a substantial amount of protected speech that causes only hurt feelings or offense.24 The Minnesota Supreme Court's narrowing construction does not eliminate the overbreadth.25 White disagreed with the majority's analysis that turns on whether the ordinance is content-based.26
He argued that the Court should have decided the case within established First Amendment law by holding the ordinance fatally overbroad.27 White emphasized that the majority's new theory departs from precedent and weakens traditional protections of speech.28
Justice Blackmun agreed with Justice White that the ordinance is overbroad.29 He wrote separately to note that the ordinance also impermissibly chills protected expression.30 Blackmun regretted the majority's decision because it signals either an abandonment of the categorical approach or an aberration driven by opposition to the ordinance's premise.31
He saw no First Amendment values compromised by a law prohibiting race-based fighting words that prejudice the community.32 Blackmun concurred in the judgment because the ordinance reaches beyond fighting words to speech protected by the First Amendment.33
Joined by White And Blackmun, Jj., As To Part I
Justice Stevens agreed that the ordinance is unconstitutional but for different reasons.34 The ordinance is not impermissibly content-based in the way the Court suggests because it regulates only a particularly virulent form of expression.35 The ordinance is nonetheless invalid because it is not narrowly tailored.36
The city could have achieved its interests through less restrictive means.37 Stevens disagreed with both the majority's near-absolute ban on content-based regulations and Justice White's categorical approach.38 He argued that content-based distinctions are an inevitable aspect of First Amendment jurisprudence and that the ordinance's selective regulation on the basis of harm is constitutional when the harms caused are qualitatively different.39