By: Max Ehrlich
Volume X – Issue I – Fall 2024
I. INTRODUCTION
“The First Amendment was never intended to protect an individual who burns a cross in the middle of the night in the fenced yard of an African-American family's home,” declared Hennepin County attorney Tom Foley during the oral argument for R.A.V. v. Saint Paul. [1] In a 9-0 decision, the Supreme Court disagreed. The majority explained in their decision that the government cannot proscribe speech based on viewpoint, no matter if it falls within a broader unprotected category of speech. Even if the St. Paul statute at issue only proscribed hate speech that fell into the category of fighting words, its inclusion of only fighting words espousing certain views made it unconstitutional. The case set the precedent that viewpoint-based restrictions on speech are facially invalid, even if they regulate a category of speech that would normally not be protected. [2]
This article’s analysis will begin in Part II with an examination of the majority’s argument. Then, Part III will explore the main concurring opinions and their use of the traditional categorical approach. Next, Part IV will delve into the concept of content-based under-inclusion, central to understanding the tension between the majority and dissent in RAV v. Saint Paul. Part V will argue that hate speech should be considered its own category of unprotected speech given the Court’s reasoning in Roth, Chaplinsky, and Wisconsin v. Mitchell. Finally, Part VI will consolidate these arguments into a two-pronged test for determining whether a hate speech regulation is valid.
II. JUSTICE SCALIA’S MAJORITY OPINION AND VIEWPOINT DISCRIMINATION
Justice Scalia’s majority opinion, at its core, argues that a regulation of speech which discriminates against certain viewpoints is unconstitutional regardless of any other features of the speech. Even if the statute only regulates fighting words, which would be proscribable without a viewpoint restriction, Scalia asserts that it does not matter. A statement’s categorization as fighting words does not make it “entirely invisible to the constitution.” [3] The bottom line is that the speech’s proscribability does not simply depend on the speech’s content, but also depends on the government’s intent behind making the regulation. If the government intended to proscribe a particular viewpoint, that brings the regulation back under constitutional scrutiny, regardless of whether the speech belongs to an unprotected category.
i. Government Intent and Protection of Speech
Scalia justifies this view with examples of other cases where the government can regulate speech in one way but not in another. For instance, he cites that laws can regulate the burning of an American flag with an ordinance against outdoor fires but not with an ordinance specifically targeting actions dishonoring the flag. [4] Similarly, time, place, or manner restrictions can regulate speech that the government cannot based on aspects of its content. [5] However, in using this argument, Scalia explicitly assumes a major premise. He writes “just as the power to proscribe particular speech on the basis of a non-content element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the basis of other content elements.” [6]
Scalia is correct that the power to regulate speech’s non-content elements does not confer the power to regulate the speech’s content. His mistake, however, is in equating that situation to the case at hand. The notable difference is that this case does not ask whether speech can be proscribed for a content element unrelated to its proscribable non-content element. Instead, this is a case where the government bans speech falling under the unprotected “fighting words” category based on content that is a subset of that category. Regulating a subset of an unprotected category of speech does not operate in the same way as proscribing protected speech for non-content purposes. A content-based restriction on an already unprotected type of speech cannot be treated the same way as a content-based restriction on protected speech.
While this paper does not aim to completely disregard Scalia’s focus on viewpoint discrimination, it does show that viewpoint discrimination within a category of unprotected content should not be treated the same way as viewpoint discrimination that affects otherwise protected speech. Part IV explores exactly how viewpoint discrimination should be treated, considering the concept of content-based under-inclusion and proposing a rule that incorporates Scalia’s concept of viewpoint discrimination for content-based regulations. This rule will recognize that certain viewpoint discriminations need to be protected against while not making the sweeping logical jump that Scalia makes to constitutionally invalidate all viewpoint discriminatory regulations.
ii. Subject Matter Regulations vs. Viewpoint Discrimination
On top of highlighting statutory intent’s role in the regulation of speech, Scalia finds a way to sidestep a central argument of Justice White’s concurrence. White argues that Scalia’s opinion completely bars any content-underinclusive regulation of unprotected categories of speech. Content-underinclusive regulations are those that only regulate a portion of an unprotected category of speech (e.g. protecting only hateful fighting words, as opposed to all fighting words). To White, completely disallowing content- underinclusive regulations flew in the face of Court precedent.
To combat White’s argument, Scalia draws a clear distinction between permissible subject matter regulations and viewpoint-based regulations. This distinguishes the constitutionally allowed regulation of speech based on its non-viewpoint content (i.e. regulating fighting words, obscenity, libel/defamation) from what he considers unconstitutional viewpoint discrimination. This allows him to sidestep the concurrence’s argument that the majority’s ruling completely disallows content-underinclusive regulations, instead saying that the ruling only prohibits those underinclusive regulations that are based on viewpoint. [7] He further states that some content based under-inclusions not based on viewpoint (subject matter restrictions) would be permissible, giving the example of only regulating the most prurient speech within the category of obscene speech. [8]
The difference between subject matter and viewpoint regulations of speech makes logical sense on its face. The founders wrote the First Amendment with the intent to protect the marketplace of ideas, and eliminating certain viewpoints threatens that marketplace, skewing the societal discourse. [9] However, Court precedent shows that the process of determining which content-underinclusive regulations are permissible under the Constitution is more complex than Scalia makes it. Scalia’s distinction here undoubtedly matters, but Part IV will demonstrate how it fails to fully explain some of the Court’s other cases which address content-based under-inclusion.
III. JUSTICE WHITE’S CONCURRENCE AND UNPROTECTED SPEECH
Justice White’s concurrence sees the majority opinion as inventing entirely new precedent to limit the government’s ability to regulate unprotected speech as it sees fit. White argues that Scalia’s holding completely eliminates the government’s ability to choose which unprotected speech it regulates. He takes a strict categorical approach, saying that the First Amendment does not apply to unprotected categories of speech, regardless of how the state chooses to regulate those categories. He argues that this approach stays consistent with the Court’s precedent, while the majority invents a brand new rule, never proposed, argued, or briefed by either of the case’s parties.
The categorical approach to the First Amendment is built off the concept that “[i]n light [of the First Amendment’s] history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.” [10] Certain categories of speech, which provide little or no value to society and “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality,” [11] are immune from First Amendment protection. These categories include obscenity [12], libel [13], and fighting words [14], among others. Importantly, as White points out in this concurrence, these categories are defined by their content, and the Court has consistently said that “the evil to be restricted [by these categories] so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required” [15] and that these categories are “not within the area of constitutionally protected speech.” [16]
White says that the majority opinion abandons the clearly and consistently stated principle that these categories of speech fall entirely outside the bounds of constitutional consideration. It elevates the Court’s appraisal of hateful and violent speech above the threshold such that it “outweigh[s] the social interest in order and morality that has traditionally placed such fighting words outside the First Amendment.” [17] Furthermore, White points out that the majority’s rule against viewpoint discrimination conflicts with various precedents. The majority tries to contour the rule to these precedents, but ultimately fails to convincingly explain why a simple prohibition on viewpoint-based regulations can accurately apply to precedent where the Court has explicitly allowed regulations on certain viewpoints. [18] The following section will explore in more detail the majority opinion’s inability to align with precedent, specifically in how it deals with content based underinclusion.
IV. CONTENT-BASED UNDERINCLUSION: IN SEARCH OF A CONSISTENT RULE
Both the concurrence and dissent in RAV grapple with how to handle what then Professor Elena Kagan called content-based underinclusion. [19] The majority argues that all underinclusions based on viewpoint are facially unconstitutional with few exceptions. The concurrence, on the other hand, argues that this essentially forces the state to prohibit either an entire category of speech or none of it. Justice White argues that the new viewpoint discrimination rule is overly restrictive and that the state should be allowed to regulate portions of unprotected categories of speech. [20] While the Court presents these two opposite positions as the only options, this article argues that the Court’s decisions and the First Amendment do not support either of these stances. After explaining the problems inherent within both approaches, this paper will propose a new approach to dealing with content-based underinclusion that addresses the pros and cons of Scalia’s and White’s approaches.
i. Analyzing Scalia’s Viewpoint Based Approach
The logic of presumptively holding viewpoint regulations unconstitutional is straightforward. The First Amendment’s intent is to promote the exchange of views, and ordinances that pick and choose opinions cut against that goal. Even the most stringent supporter of the concurrence’s approach to content underinclusion must admit that an inherent discomfort exists in allowing the government to regulate, for instance, only obscenity which critiques the government, or only libel which discredits supporters of a particular political ideology. Speech central to our civil society, like political speech and speech in protest of the government, obtains elevated value from its vital place in our democratic system. In gaining value from its place in our civil society, the speech’s value comes from a source other than just its content, which makes the speech vital to protect, even if it belongs to an unprotected category.
Scalia’s detractors would argue that these viewpoint distinctions are irrelevant. Unprotected speech exits the purview of First Amendment protection, regardless of the regulation’s breadth or lack thereof. The Court’s precedent already deemed the speech worthless by definition, and the state should be left to determine how to regulate that speech. This criticism, while fair, fails to really address the examples above of protest and political speech. Applying a rigid reading of precedent that strictly enforces the categorical approach to speech is untenable for these cases. Clearly, viewpoint discrimination needs to be disallowed in at least some instances.
That said, the Court’s precedents make it clear that presumptively invalidating all content- underinclusive viewpoint regulations does not make sense either. The Court’s precedents with respect to Title VII sexual harassment claims and hate crime laws clearly allow content-underinclusions based on viewpoint. Justice White mentions the Title VII issue in his concurrence, arguing that the majority’s rule would prohibit the regulation of sexual harassment, as regulating this speech constitutes an underinclusion within the category of all workplace fighting words. Scalia attempts to address this by saying that the speech is “swept up incidentally” by a statute targeting discriminatory conduct. [21] But this reasoning does not hold up: The speech’s relationship to the conduct may categorize the speech as unprotected, but that is already the assumption for a content based underinclusion. Fighting words are unprotected too, even though they are not related to any conduct. The viewpoint discrimination within speech involved in harassment follows the same legal reasoning as a viewpoint discrimination within the category of fighting words. The conduct element of the harassment that Scalia cooked up did not change the status of the speech for the purposes of content underinclusiveness. In other words, just because the speech was involved in harassment does not change the fact that regulating it is a content based underinclusion.
Hate crime laws receive the same treatment, as seen in Wisconsin v. Mitchell. In fact, the Court in Mitchell cited the very flawed reasoning that Scalia used to exempt Title VII from the viewpoint-based rule. The Court argued that hate crime laws criminalize viewpoints only within the context of conduct, an argument which falls prey to the same flawed reasoning. [22] Speech involved in conduct may be unprotected, but so is any other category to which this rule against viewpoint regulation applies. Clearly, the Court’s precedents contravene an absolute rule prohibiting viewpoint-based underinclusions. That being said, some viewpoint-based regulations obviously should not stand when they implicate fundamental speech rights against the government and political speech.
ii. Analyzing White’s Approach: Free Regulation of Unprotected Categories
The concurring opinions take an absolute stance. The Court’s decades-old categorical approach already clearly states what speech to protect. The Court has determined that certain types of speech have so little value that their harms greatly outweigh their merits. The views espoused by that speech, then, become irrelevant. The Court has decided that the government can regulate these categories of speech, and the legislative branch has the power to make policy respecting how that speech is regulated. Applying additional First Amendment protection to unprotected speech becomes entirely paradoxical under this argument. [23]
This logic feels strong, but edge cases described in IV(i) poke holes that such a rigid framework fails to address. Again, speech criticizing the government or espousing a political ideology requires special consideration. But how can unprotected speech that has no inherent value as a part of its regulatable category suddenly have value in the eyes of the First Amendment once it is regulated for its viewpoint? The only thing that has changed between regulating the full category and the underinclusive regulation is the regulation’s intent, and that is where the answer lies. Certain regulations, in targeting certain sorts of viewpoints, imbue speech that lacks value under the First Amendment with novel value simply by the nature of the regulation’s intent. This suggests that a more proper way to apply a rule restricting viewpoint regulations is a reverse categorical approach, by which certain categories of unprotected speech become protected when specifically targeted by statute.
iii. The New Approach
The reverse categorical approach, developed in sections A and B by analyzing the absolute approaches at either end of the debate, both preserves the long-standing precedent of allowing for relatively free regulation of categories of unprotected speech, and incorporates the portions of Scalia’s viewpoint approach that actually warrant protecting otherwise unprotected speech. This approach would create protected viewpoint categories that invalidate certain content underinclusive regulations, while otherwise leaving the state free to regulate unprotected categories of speech as they see fit. While impossible to anticipate every vital category of viewpoint before it arises, some categories would include speech criticizing the government and speech espousing a particular political ideology. Any speech whose value comes from a place beyond simply its content would get such treatment, as those viewpoint categories would be deserving of protections despite their content being unprotected.
V. HATE SPEECH AS ITS OWN CATEGORY OF UNPROTECTED SPEECH
The hurdle hate speech regulation faces, beyond the question of which content-based restrictions are valid, is the issue that ultimately led RAV v. St. Paul to be unanimous in its judgment. Even if viewpoint-based regulations are permissible, hate speech regulations generally go far beyond simply proscribing hateful fighting words. Even the concurrences saw the St. Paul ordinance as overly broad, going beyond regulating just a subset of fighting words. [24] In this section, this article will argue that hate speech deserves to be treated as its own category of proscribable speech, consistent with the Court’s past decisions of what makes speech unworthy of the First Amendment’s protection. This new category has overlap with fighting words but also includes some speech that does not fall in that category.
To determine what makes hate speech proscribable as its own category, we have to delve into the Court’s precedent. As was previously pointed out, the Court has said that speech is proscribable when it has so little value that “any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” [25] Over the Court’s history, hateful speech has never explicitly been considered a category of unprotected speech, but Supreme Court precedent suggests an underlying doctrine of excluding hateful speech from protections. In Wisconsin v. Mitchell and Hishon v. King and Spalding, the Court did not extend protection to certain speech, using reasoning that is dubious at best. Both cases tied the speech to proscribable conduct, stripping the speech of protections despite the fact that the regulations clearly involved viewpoint-based content discrimination that the Court should have considered unlawful under RAV v. Saint Paul’s reasoning.
i. Wisconsin v. Mitchell
In Wisconsin v. Mitchell, as has been previously discussed, the Court upheld legislation that punished hate crimes with higher penalties than the same crimes carried out without hateful motives. In other words, hateful viewpoints carried with them a criminal penalty when they existed along with some criminal conduct. The Court would say that this case does not implicate hate speech, because it ultimately punishes conduct. [26] Furthermore, Court precedent usually allows for crimes to be assigned different penalties based on motive. However, under the Court’s reasoning in RAV v. Saint Paul, even speech that has become unprotected as part of a particular category (in this case as a motive for some crime) is still protected from regulations based on viewpoint. If hateful speech was not protected in RAV v. Saint Paul, hateful motives should not be protected speech in hate crime legislation. Under RAV’s reasoning, the Mitchell decision does not make any logical sense. Either the decision is simply wrong or there is something else underlying the Court’s reasoning. This article argues for the latter, which will be addressed in subsection iii.
ii. Hishon v. King and Spalding
In Hishon v. King and Spalding, the Court rejected the argument that sexual harassment in the workplace warranted First Amendment protections, citing precedent where discrimination at private schools or labor unions also lacked First Amendment protections. [27] As discussed before, White’s concurrence in RAV explicitly argues that Scalia’s reasoning in that case eliminates such protections against harassment and discrimination. [28] Indeed, speech meant to harass and discriminate falls squarely into a viewpoint-based, hateful type of speech that RAV v. Saint Paul protects. Like in Wisconsin v. Mitchell, the Court in Hishon v. King and Spalding tied speech to conduct, attempting somehow to circumvent the RAV rule against viewpoint discrimination. And just like in Wisconsin v. Mitchell, the Court’s reasoning fails to recognize the strength with which RAV condemns such viewpoint based underinclusions. Once again, there must be some underlying reason why the Court is willing to undermine its rule in RAV.
iii. Defining Hate Speech
This article is not fashioning a new category completely out of thin air. It is recognizing a workaround that the Court has never explicitly recognized but has clearly used to already remove constitutional protections from certain distasteful hate speech. This article simply formalizes a rule that broadens and gives strength to existing Court interpretation. While the category is certainly new, it is not without basis in Court precedent. In fact, formalizing hate speech as a category harmonizes the Court’s decisions in Wisconsin v. Mitchell and Hishon v. King and Spalding with broader First Amendment doctrine.
First Amendment precedent at least hints at an implicit tendency to allow viewpoint regulations of certain speech like in Wisconsin v. Mitchell and Hishon v. King and Spalding. In order to define the hate speech category that this article will create, the underlying reasoning for the First Amendment exceptions in those cases must be discerned. The former case allows for the regulation of crimes with hateful motives, and the latter case allows for the regulation of practices based on discriminatory beliefs. Since both involve viewpoint restrictions on speech, there must be a category of unprotected speech which each case implicates. That category is precisely the new hate speech category that this article seeks to formalize. Both cases flew in the face of RAV’s reasoning in order to protect minority groups from hate and discrimination which would diminish their ability to participate in our society.
The basis for allowing the regulation of such speech lies in the underlying protection our constitutional system affords to “discrete and insular minorities.” [29] Our democracy relies not only on the absence of speech regulation, but also on the defense of protected groups’ ability to speak freely. Hate speech cuts against society’s interest in an environment where all can speak and none are excluded based on their immutable characteristics. Creating an atmosphere of fear, intimidation, or discomfort for members of a particular group has a chilling effect on that group’s speech and participation in civil society, the very thing that the First Amendment is meant to protect. This chilling effect so detracts from the value of certain hateful speech that it wrenches that speech out of the confines of First Amendment protection.
It follows that speech is unprotected hate speech when it meets two criteria: when the speech’s primary effect is to exclude or diminish someone who belongs to a minority group, and the speech has minimal to no societal value separate from the speech’s hateful content. Defining the category in this way allows the state to restrict hateful speech that harms our society’s discourse, while also recognizing that some hateful speech needs to be protected despite its harms, due to some value it brings to the table. For instance, certain speech in an educational setting has value aside from its potential effects on minority groups. This definition for the category balances the need for regulations on hateful speech with the importance of allowing certain speech that has other value.
VI. A NEW TEST FOR HATE SPEECH
Bringing all of the analysis together, any hate speech regulation would have to pass a two- pronged test. First, it would have to be a permissible viewpoint regulation as defined in Part IV, and second, it would have to fall under the hate speech category defined in Part V. Even though regulating hate speech would not be a content under-inclusion given the fact that Part V establishes hate speech as its own category, it still implicates the issue of viewpoint discrimination given hate speech’s unique nature as a viewpoint-based category. Therefore, the viewpoint rule from Part IV must be included in the rule.
The test will ask two questions: Does the speech damage the environment for public participation of a protected class without any secondary elements that provide some societal value as discussed in Part V? And does the regulation invoke special protections under the reverse categorical approach discussed in Part IV? If the answers to those questions are yes and no respectively, then the regulation at issue is permissible. This rule strikes the balance between regulating speech that damages the very marketplace of ideas that the First Amendment seeks to create and allowing for political speech that is central to our democracy, even when that speech is distasteful.
Endnotes
[1] R.A.V v. City of Saint Paul, Docket No. 90-7675, 505 U.S. 377 (U.S. Supreme Court, Dec. 4, 1991, Oral Argument at 00:25:43-00:25:55).
[2] R.A.V. v. City of Saint Paul, Minnesota, 505 U.S. 377 (1992).
[3] Ibid.
[4] R.A.V. v. City of Saint Paul, Minnesota; Texas v. Johnson, 491 U.S. 397 (1989).
[5] R.A.V. v. City of Saint Paul, Minnesota; Ward v. Rock Against Racism 491 U.S. 781 (1989).
[6] R.A.V. v. City of Saint Paul, Minnesota.
[7] Elena Kagan, “The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion,” The Supreme Court Review Vol. 1992 (1992): 29-77; R.A.V. v. City of Saint Paul, Minnesota, 505 U.S. 377 (1992).
[8] R.A.V. v. City of Saint Paul, Minnesota.
[9] Kagan, “The Changing Faces of First Amendment Neutrality.”
[10] R.A.V. v. City of Saint Paul, Minnesota.
[11] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
[12] Roth v. United States, 354 U.S. 476 (1957).
[13] New York v. Ferber, 458 U.S. 747 (1982).
[14] Chaplinsky v. New Hampshire.
[15] New York v. Ferber.content-und
[16] Roth v. United States.
[17] R.A.V. v. City of Saint Paul, Minnesota.
[18] Ibid.
[19] Kagan, “The Changing Faces of First Amendment Neutrality.”
[20] R.A.V. v. City of Saint Paul, Minnesota.
[21] R.A.V. v. City of Saint Paul, Minnesota.
[22] Wisconsin v. Mitchell, 508 U.S. 47 (1993).
[23] R.A.V. v. City of Saint Paul, Minnesota.
[24] R.A.V. v. City of Saint Paul, Minnesota.
[25] Chaplinsky v. New Hampshire.
[26] Wisconsin v. Mitchell.
[27] Hishon v. Spalding, 467 U.S. 69 (1984).
[28] R.A.V. v. City of Saint Paul, Minnesota.
[29] U.S. v. Carolene Products, 304 U.S. 144 (1938).