Summary of RAV v. St. Paul
P burned a cross in a black family’s yard. Was convicted under an ordinance that provides: “Whoever places on public or private property a symbol, including a burning cross, which one knows arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct"
Is the ordinance unconstitutional because it discriminates on the basis of conduct?
An ordinance that applies only to those fighting words that insult or provoke violence on the basis of race, religion or gender is invalid. Although the general class of “fighting words" is prohibitable, you can’t restrict only those fighting words that advance a certain view point.
The first amendment imposes a content discrimination limitation (distinguish from a underinclusive limitation) upon a State’s prohibition of proscribable speech. For example, you can prohibit only the post patently offensive obscene speech, but you can’t prohibit only obscene speech that includes political messages.
Exceptions to the above rule banning content-based partial bans:
Content-based distinctions may be drawn in order to proscribe the worst of the category
- Think about this hypo: Federal law says you cannot threaten the president because threats are more than just speech, poses a danger and the danger can be regulated. So why is it we can just take threats to the president alone and criminalize those without criminalizing all threats? Scalia says there’s an exception – you can pick the worst of a category, since the worst threat is threatening the president then it’s okay to pick that.
Certain content-based regulations will survive if the regulated subclass is associated with secondary effects.
- you don’t ban sexual harassment because you don’t like the speech parts of it but because you think there are more secondary effects, impairment of the function of the workplace, that comes with sexual harassment.
- Also, content-based regulations are okay if there’s no realistic possibility that official suppression of ideas is afoot.
D also argues it has an interest in ensuring basic human rights to traditionally discriminated groups. Although this is a substantial valid interest, it is not narrowly tailored. You could accomplish he same thing by banning all fighting words.
You can’t draw a content discrimination within an unprotected category unless it’s the worst of the category, based on secondary effects, no potential for a viewpoint discrimination, or doesn’t meet strict scrutiny.