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

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CERTIORARI TO THE SUPREME COURT OF MINNESOTA No. 90-7675. Argued December 4, 1991-Decided June 22,1992

After allegedly burning a cross on a black family's lawn, petitioner R. A. V. was charged under, inter alia, the St. Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge on the ground that the ordinance was substantially overbroad and impermissibly content based, but the State Supreme Court reversed. It rejected the overbreadth claim because the phrase "arouses anger, alarm or resentment in others" had been construed in earlier state cases to limit the ordinance's reach to "fighting words" within the meaning of this Court's decision in Chaplinsky v. New Hampshire, 315 U. S. 568, 572, a category of expression unprotected by the First Amendment. The court also concluded that the ordinance was not impermissibly content based because it was narrowly tailored to serve a compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.

Held: The ordinance is facially invalid under the First Amendment.


(a) This Court is bound by the state court's construction of the ordinance as reaching only expressions constituting "fighting words." However, R. A. Vo's request that the scope of the Chaplinsky formulation be modified, thereby invalidating the ordinance as substantially overbroad, need not be reached, since the ordinance unconstitutionally prohibits speech on the basis of the subjects the speech addresses. P.381.

(b) A few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content. However, these categories are not entirely invisible to the Constitution, and government may not regulate them based on hostility, or favoritism, towards a nonpros crib able message they contain. Thus the regulation of "fighting words" may not be based on nonproscribable content. It may, however, be underinclusive, addressing some offensive instances and leaving other, equally offensive, ones alone, so long as the selective proscription is not based on content, or there is no realistic possibility that regulation of ideas is afoot. Pp. 382-390.



(c) The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of "race, color, creed, religion or gender." At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation the ordinance goes beyond mere content, to actual viewpoint, discrimination. Displays containing "fighting words" that do not invoke the disfavored subjects would seemingly be useable ad libitum by those arguing in favor of racial, color, etc., tolerance and equality, but not by their opponents. St. Paul's desire to communicate to minority groups that it does not condone the "group hatred" of bias-motivated speech does not justify selectively silencing speech on the basis of its content. Pp. 391-393.

(d) The content-based discrimination reflected in the ordinance does not rest upon the very reasons why the particular class of speech at issue is pros crib able, it is not aimed only at the "secondary effects" of speech within the meaning of Renton v. Playtime Theatres, Inc., 475 U. S. 41, and it is not for any other reason the sort that does not threaten censorship of ideas. In addition, the ordinance's content discrimination is not justified on the ground that the ordinance is narrowly tailored to serve a compelling state interest in ensuring the basic human rights of groups historically discriminated against, since an ordinance not limited to the favored topics would have precisely the same beneficial effect. Pp. 393-396.

464 N. W. 2d 507, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and KENNEDY, SOUTER, and THOMAS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in which BLACKMUN and O'CONNOR, JJ., joined, and in which STEVENS, J., joined except as to Part I-A, post, p. 397. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 415. STEVENS, J., filed an opinion concurring in the judgment, in Part I of which WHITE and BLACKMUN, JJ., joined, post, p. 416.

Edward J. Cleary argued the cause for petitioner. With him on the briefs was Michael F. Cromett.

Tom Foley argued the cause for respondent. With him on the brief was Steven C. DeCoster. *

*Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Steven R. Shapiro, John A. Powell, and Mark R. Anfinson; for the Association of American Publishers et al. by

Full Text of Opinion

Primary Holding

The First Amendment does not permit a state to use content discrimination to achieve a compelling interest if it is not necessary to achieve that interest.


A group of teenagers, including R.A.V., made a cross and burned it in the yard of an African-American family. They were charged by the City of St. Paul under its Bias-Motivated Crime Ordinance, which was designed to impose penalties for hate crimes. R.A.V. challenged the ordinance under the First Amendment, arguing that it was overly broad and based on the content of speech. While the trial court agreed, the state Supreme Court reversed on the grounds that the ordinance was defined in a way that limited its scope to "fighting words." (These are a categorical exception to First Amendment protection.) The state Supreme Court also ruled that, while the ordinance was content-based, it was not unconstitutional for that reason because it met the strict scrutiny standard. It found that the government had a compelling interest in protecting public safety and that this ordinance was a sufficiently narrowly tailored way to achieve this goal.



  • Antonin Scalia (Author)
  • William Hubbs Rehnquist
  • Anthony M. Kennedy
  • David H. Souter
  • Clarence Thomas

Obscenity, defamation, and fighting words are categorical exceptions to the First Amendment because of their content. While this ordinance may extend only to fighting words, it distinguishes among types of fighting words according to their content. It is limited to fighting words that insult or incite violence on the basis of race, religion, or gender. The city may not constitutionally impose special penalties on speakers who discuss certain subjects, so the statute is void in its entirety. There are other ways to punish a defendant for the admittedly reprehensible behavior of cross burning.


  • Byron Raymond White (Author)
  • Harry Andrew Blackmun
  • Sandra Day O'Connor

The ordinance is unconstitutional because it extends beyond fighting words to expression protected by the First Amendment. There was no need to create a new "underbreadth" rule and find that a rule is impermissible because it does not criminalize enough speech.


  • Harry Andrew Blackmun (Author)

The outcome in this case was properly reached because the ordinance is overly broad and extends to protected speech. The strict scrutiny that usually applies to content-based regulations seemed to be used in an overly lenient manner here, though.


  • John Paul Stevens (Author)

Case Commentary

This is a content-specific regulation, which almost always will be invalidated based on vagueness and overbreadth. It is possible to interpret it as applying only to fighting words, but even that context does not remove the problem of its content-specific nature, which would make it unconstitutional regardless.

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