SUMMARY:
The city of St. Paul, Minnesota, enacted an ordinance which made it a misdemeanor to place on public or private property a symbol, object, appellation, characterization, or graffiti--including a burning cross--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. A teenager who allegedly burned a cross inside the fenced yard of a black family was charged with violating this ordinance. In a Minnesota trial court, the teenager moved to dismiss the charge on the ground that the ordinance was substantially overbroad and impermissibly content-based and thus facially invalid under the Federal Constitution's First Amendment. The trial court granted this motion. On appeal, the Supreme Court of Minnesota, in reversing and remanding, said that (1) the ordinance was to be construed as reaching only conduct that amounts to "fighting words," that is, conduct that itself inflicts injury or tends to incite immediate violence; (2) the ordinance thus reached only expression that the First Amendment did not protect; and (3) so construed, the ordinance was a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against bias-motivated threats to public safety and order (464 NW2d 507). On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Scalia, J., joined by Rehnquist, Ch. J., and Kennedy, Souter, and Thomas, JJ., it was held that the ordinance, even as narrowly construed by the Supreme Court of Minnesota, was facially violative of the First Amendment, because (1) the ordinance applied only to fighting words that insult or provoke violence on the basis of race, color, creed, religion, or gender; (2) displays containing abusive invective, no matter how vicious or severe, were thus permissible under the ordinance unless such displays were addressed to one of the specified disfavored topics, but those who wished to use fighting words in connection with other ideas were not covered; (3) the ordinance imposed viewpoint discrimination, in that fighting words that did not themselves invoke race, color, creed, religion, or gender would seemingly be usable in the placards of those arguing in favor of tolerance and equality, but such words could not be used by such speakers' opponents; (4) the ordinance did not fall within any exception to the First Amendment prohibition of content discrimination; and (5) although the ordinance could be said to promote a compelling state interest in insuring the basic human rights of members of groups that have historically been subjected to discrimination, the ordinance's content discrimination was not reasonably necessary to achieve such interests. White, J., joined by Blackmun and O'Connor, JJ., and joined in part (except as to point 2 below), by Stevens, J., concurring in the judgment, expressed the view that (1) the Supreme Court of Minnesota's judgment should have been reversed on the ground that the ordinance, in reaching expressive conduct that causes only hurt feelings, offense, or resentment, criminalized expression protected by the First Amendment and thus was overbroad; (2) certain categories of speech, including "fighting words," are not protected by the First Amendment; and (3) if the ordinance had not been overbroad, it would have been a valid regulation of unprotected speech for purposes of the Constitution's Fourteenth Amendment equal protection clause. Blackmun, J., concurring in the judgment, expressed the view that (1) the ordinance was invalid because it reached beyond fighting words to speech protected by the First Amendment, but (2) the majority's approach would either (a) result in a relaxation of the level of strict scrutiny applicable to content-based laws, or (b) be regarded as a manipulation of First Amendment doctrine to strike down an ordinance whose premise the majority opposed. Stevens, J., joined in part (as to points 1 and 2 below) by White and Blackmun, JJ., expressed the view that (1) the ordinance was unconstitutionally overbroad; (2) the majority, in ruling that proscribable speech cannot be regulated based on subject matter, wrongly gave fighting words and obscenity the same sort of protection afforded core political speech; (3) not all content-based distinctions are equally infirm and presumptively invalid; and (4) fighting words are not wholly unprotected by the First Amendment.

SUMMARY:
After an accused requested that a group of black males attack a white boy who was walking nearby, the group beat the boy severely. In the Circuit Court of Kenosha County, Wisconsin, the accused was convicted of aggravated battery, which, under a Wisconsin statute, ordinarily carried a maximum prison sentence of 2 years. However, because the jury found that the accused had intentionally selected his victim because of the victim's race, the circuit court sentenced the accused to 4 years' imprisonment, under a Wisconsin penalty-enhancement statute, known as the "hate crimes" statute, which provided a longer maximum sentence for an offense whenever an accused intentionally selected a victim because of the victim's race, religion, color, disability, sexual orientation, national origin, or ancestry. On appeal of the conviction and sentence, the Wisconsin Court of Appeals rejected the accused's contention that the penalty-enhancement statute violated the Federal Constitution's First Amendment (163 Wis 2d 652, 473 NW2d 1). The Wisconsin Supreme Court, reversing the Court of Appeals judgment, held that the statute (1) violated the First Amendment by punishing what the state legislature had deemed to be offensive thought, and (2) was unconstitutionally overbroad because the evidentiary use of speech uttered before the commission of an offense subject to the penalty enhancement would have a chilling effect on those who feared the possibility of prosecution for such an offense (169 Wis 2d 153, 485 NW2d 807). On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Rehnquist, Ch. J., expressing the unanimous view of the court, it was held that the accused's First Amendment free speech rights were not violated by application of the penalty-enhancement statute to increase the accused's prison sentence to 4 years, because (1) motive played the same role under the penalty-enhancement statute as it did under federal and state antidiscrimination laws, which the Supreme Court had upheld against constitutional challenge, (2) the statute was aimed at conduct unprotected by the First Amendment, (3) the state's desire to redress individual and societal harm thought to be inflicted by bias-motivated crimes provided an adequate explanation for penalty-enhancement and went beyond mere disagreement with offenders' beliefs or biases, (4) the prospect of a citizen suppressing the citizen's bigoted beliefs for fear that evidence of such beliefs would be introduced against the citizen at trial if the citizen committed a serious criminal offense was too speculative a hypothesis to support a claim that the statute impermissibly chilled free speech, so as to be unconstitutionally overbroad, and (5) the First Amendment did not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.