R.A.V. v. St. Paul - Oral Argument

Argument of Edward J. Cleary

Chief Justice Rehnquist: We'll hear argument now in 90-7675, R.A.V. v. St. Paul, Minnesota.

Mr. Cleary.

Mr. Cleary: Mr. Chief Justice, and may it please the Court:

Each generation must reaffirm the guarantee of the First Amendment with the hard cases.

The framers understood the dangers of orthodoxy and standardized thought and chose liberty.

We are once again faced with a case that will demonstrate whether or not there is room for the freedom for the thought that we hate, whether there is room for the eternal vigilance necessary for the opinions that we loathe.

The conduct in this case is reprehensible, is abhorrent, and is well-known by now.

I'm not here to defend the alleged conduct, but as Justice Frankfurter said 40 years ago, history has shown that the safeguards of liberty are generally forged in cases involving not very nice people.

He might just as well have well said, involving cases involving very ugly fact situations.

I am here to discuss and to ask the Court to review the Minnesota supreme court's interpretation of a St. Paul ordinance.

Justice--

Justice O'Connor: Mr. Cleary, in reading your briefs, it appeared to me that you were arguing a case other than the one presented, which I thought involved the statute as construed by the Minnesota supreme court.

Mr. Cleary: --I did go into great--

Justice O'Connor: Now, do you agree at this point that we are looking at the statute as the Minnesota supreme court has interpreted it?

Mr. Cleary: --Yes.

Justice O'Connor: Not as it could theoretically have been interpreted?

Mr. Cleary: Yes.

The reason I went into as much detail as I did with the ordinance as written was to show the distance from A to B and the attempt to narrowly construe that law.

We have to acknowledge the State has a right under Federal statute to construe their laws.

Justice O'Connor: And in essence what the Minnesota supreme court appears to have said is, we interpret the law as reaching only those exceptions that the Supreme Court has recognized to the First Amendment... fighting words, for instance, out of our prior Chaplinsky case.

Now, do you agree that that's what they've done?

Mr. Cleary: I agree that the Court attempted to narrow the ordinance and in doing so cited Chaplinsky and Brandenburg to this Court.

Justice O'Connor: Right, and in essence they said what that statute means is what the Supreme Court has permitted in Brandenburg and Chaplinsky.

Mr. Cleary: They did cite those cases, Your Honor.

I do believe, however, that the expansive language that was used shows a much broader reach than what this Court indicated in those cases.

In discussing Chaplinsky they cite several times the afflict injury dictum from that case.

That took a standard that was very close to an offensiveness standard and raises the adverse emotional harm idea from the Hustler Magazine case in that the outrageousness standard is raised, and it really opens a hole to the First Amendment.

Justice O'Connor: Well, if we thought that the Minnesota court recognized that the Minnesota statute reaches only what was said in Chaplinsky could survive and in Brandenburg what survived, would you still be here?

Mr. Cleary: I would still object to the ordinance as construed, Your Honor.

Justice O'Connor: So you would ask us to somehow overturn those older holdings.

Mr. Cleary: No, I don't believe it's necessary to do that, Your Honor, to get to the position that I'm requesting.

The Court has acknowledged that the court cited Chaplinsky and Brandenburg, the lower court, but in doing so in Brandenburg, for instance, they refer to the provocative standard, and the Government may censor provocative conduct, and it does so in a manner where it cites the likely to incite imminent lawless action as opposed to the likely to and directed to, and I think the real significance of that is that you could have a hostile audience censor the expression.

I believe that Brandenburg was written in terms of a sympathetic audience, and I believe you get into the heckler's veto problem if you allow that type of interpretation, and the language of that opinion, combined with the language of the ordinance as originally written, really leaves that open as a possibility... as a significant possibility, combined with the injury language from Chaplinsky.

The problem is that the language is so broad that it leaves open the possibility of an outrageousness standard, a dignity standard as imposed, and just generally an offensiveness standard, and that is--

Justice Kennedy: Well, in your view, what is the constitutional boundaries for the fighting words doctrine, only those words which would provoke some other person to an assault on the speaker, physical assault?

Mr. Cleary: --From this Court's opinions, Your Honor, I believe it's limited to those words that bring on an immediate breach of peace, the reflexive violence idea.

I don't believe that the Court has construed, nor did the New Hampshire court originally construe, the inflict injury dictum as part of that holding.

I believe the Court has limited that to immediate breach of the peace type of cases.

Justice Kennedy: May a State validly proscribe words that cause alarm and fear for one's safety, even if the fear for the breach of the safety is some act that will occur maybe 24 hours, 48 hours later?

Mr. Cleary: I believe so, Your Honor, and I believe so in terms of a viewpoint-neutral type of law that may address the content of what you're referring to but would do so in terms of immediate breach of peace, or would do so in terms of another law such as a threat law, a terrorist or threat law which I think would be permissible and even fit the alleged fact situation in this case.

I don't mean to downplay the victims... in this case, for instance, certainly in the fact situation there were laws available to the State, significant and hard and tough laws, to deal with an ugly fact situation.

Instead, they chose a law that's not as serious, that addresses and attempts to address expression and the content of that expression with interest in its communicative impact, which is a totally different type of--

Chief Justice Rehnquist: Mr. Cleary, isn't one of your complaints that the Minnesota statute as construed by the supreme court of Minnesota punishes only some fighting words and not others?

Mr. Cleary: --It is, Your Honor.

That is one of my positions, that in doing so, even though it is a subcategory, technically, of unprotected conduct, it still is picking out an opinion, a disfavored message, and making that clear through the State.

It's a paternalistic idea, and the problem that we have is that the Government must not betray neutrality, and I believe it does, even when it picks out a subcategory.

With the First Amendment, it does not necessarily follow that if you punish the greater you can punish the lesser.

If we had a law that banned the posting of signs, for instance, somewhat akin to Vincent, and if we had in there including but not limited to signs regarding the Democratic Party symbols, now that might be a mere example, and it might be a subcategory, but I believe this Court would be offended by that.

I believe the Court would feel that that was betraying sympathy or hostility to a political viewpoint, and I believe the same principle is in course here, because I think the problem we have is that we have... regardless of whether those symbols are mere examples, we have the possibility, the real possibility, that we have a Government signaling its disagreement with the particular type of opinion.

Chief Justice Rehnquist: Do you understand the Supreme Court of Minnesota to have decided one way or another whether the conduct of this particular petitioner is included in the statute?

Mr. Cleary: No, I did not decide... I did not see their opinion as directly deciding whether or not the conduct of the petitioner was included.

Chief Justice Rehnquist: It left that presumably for the State district court.

Mr. Cleary: Yes, Your Honor.

Yes, Your Honor.

I believe that that... this is significant to Justice O'Connor's point, too.

I did spend a lot of time in the briefing on the--

Justice Stevens: But it held that the complaint should not be dismissed?

Mr. Cleary: --I'm sorry, Justice.

Justice Stevens: Didn't it uphold the charge?

Didn't the case go back for trial?

Mr. Cleary: No, it has not gone back for trial.

Justice Stevens: The Supreme Court did not send it back for trial?

Mr. Cleary: Oh, I'm sorry, I misunderstood the question.

I thought you asked whether it was tried.

Justice Stevens: If they did send it back for trial, is it not necessarily true that they held that the allegations in the complaint alleged a violation of the statute?

Mr. Cleary: I don't believe so, Your Honor, because it was an overbreadth challenge and I think what they were saying was that the ordinance itself was constitutional after the narrow construction, but I--

Justice Stevens: But in the other case you cite, or your opponent, I guess, that's the S.L.J. case, when they narrowly construed it they said, therefore the conduct isn't within the statute and they dismissed the charge.

Mr. Cleary: --They did.

They handled that in a different fashion than they handled this case.

Justice Stevens: But you think they left open the question whether the complaint should be dismissed or not.

Mr. Cleary: Well, I think they left open how the ordinance, once narrowly construed, would affect this alleged conduct, yes.

I think certainly the reasoning of the opinion is such that they are--

Justice Stevens: But normally you're more interested in judgments.

I mean, the defendant ought to know whether or not he's been charged with an offense or not, and he still doesn't know.

That's your point.

Mr. Cleary: --If you've been charged with an offense--

Justice Stevens: But whether permissibly charged... well, okay.

I don't understand.

Justice Scalia: Mr. Cleary, I don't understand the comments you made earlier in response to the Chief Justice.

You seem to concede that the statute here merely gives... or could be interpreted to be giving just some examples of a general prohibition.

How can it be read that way?

I mean, isn't it the case that the ordinance only considers disorderly conduct the placing on public or private property of a symbol, object, et cetera, 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?

Now, that's selective, isn't it?

Aren't there a lot of other reasons why anger might be aroused?

Mr. Cleary: --Yes, there are, Your Honor.

Justice Scalia: So then why do you have any doubt about whether it's just giving examples?

I mean, it does give the examples of burning a cross or a Nazi swastika, but in fact the text of the ordinance is limited to causing alarm or resentment for only certain reasons, and if you cause alarm or resentment for other reasons, that is not unlawful under the ordinance, isn't that right?

Mr. Cleary: That is right.

Chief Justice Rehnquist: That's what you said to me, was it not?

Mr. Cleary: Well, what I said was, the respondent's position is that these were mere examples and that there was not a viewpoint selected and discriminated against.

Justice Scalia: Yes, and I thought you said, even if that is so, and I didn't understand you to be contradicting that categorically.

Mr. Cleary: Well, I am... I am suggesting that's not true.

I'm simply suggesting the worst-case scenario, that if the Court were to believe that they were mere examples, that there's still problems with the narrow construction in that it does not address speech that would not be... that would either be tolerant or would be intolerant in other areas, and in that sense it's betraying a viewpoint from the Government that is no longer neutral.

They're picking out certain categories in that sense.

Justice Souter: With respect to words that injure, is it your position that the only words that injure that can constitutionally be punished are threats?

Mr. Cleary: No, Your Honor.

Justice Souter: Threats to immediate harm?

Mr. Cleary: No, Your Honor.

I'm not suggesting--

Justice Souter: How do you... where do you want to draw the line?

Mr. Cleary: --Well, I'm not suggesting the Court need overrule Chaplinsky, which talks about immediate breach of peace, and those would not necessarily have to be threatening words.

What I am suggesting is that when you get into an offensiveness standard--

Justice Souter: I guess I was drawing the Chaplinsky distinction between the fighting words and the words that injure, and I thought they were talking about two separate categories.

Do you think they are not talking about two separate categories, or the Court was not talking about two separate categories in Chaplinsky?

Mr. Cleary: --I think the Court was talking about two separate categories.

Justice Souter: Okay.

Now, with respect just to the words that injure, where would you draw the line on what is permissible?

Mr. Cleary: I believe, Your Honor, that that... I'll be very honest.

I think that's a very hard line to draw, and I think that's perhaps the crux of this case to a certain degree, is the offensiveness idea and how--

Justice Souter: Is it hard enough so that in fact we have to say that that simply was a mistaken statement and disavow it and leave Chaplinsky with the fighting words category in the strict sense as a lone subject to punishment?

Mr. Cleary: --No, I don't believe so.

I believe that the Court must draw the line in favor of the individual right of self-expression.

I think that if the line--

Justice Souter: Well, I agree, but aren't you really coming to the point of saying that the Chaplinsky reference to words that injure was in fact, at least by today's standards, an erroneous reference and we should disavow Chaplinsky to that extent?

Mr. Cleary: --I am.

Justice Souter: Okay.

Mr. Cleary: The debate in this case is not about the wisdom of eradicating intolerance, the debate is about the method of reaching that goal.

I believe that the city council officials in this case and in other communities are very well-meaning, and that's usually the case, but the problem is that I believe these type of laws cross the line from the Fourteenth Amendment duty of the State to not participate in any racist State action or any intolerant State action, in that sense, with the First Amendment right of self-expression, even if it be intolerant, provided it does not cross the line of illegal conduct itself.

I believe the danger in a law like this is that it does pick out viewpoints, that it is viewpoint-discriminatory, and that there's nothing to stop another State from taking a law just like this, having a different symbol such as... and it uses the example in the briefs of the Star of David... and suggesting that you can narrowly construe that to fighting words, that leaving that open to the law enforcement officials, it's not only vague--

Justice Blackmun: Mr. Cleary, do you think that Chaplinsky was wrongly decided?

Mr. Cleary: --No, Your Honor, I'm not suggesting Chaplinsky has to be overruled.

I believe the immediate breach of peace language is still active, I believe there's been a lot of confusion over the injury language.

Justice Blackmun: Of course, it was written on behalf of the Court by one of the great liberals of the country.

It always amused me that Chief Justice Stone assigned it to Frank Murphy to write.

But you feel it can still stand as good law.

Mr. Cleary: I don't believe that it has to be overruled to reverse this decision, Your Honor, because I think the inflict injury and the Brandenburg misconstruction is more important in terms of this opinion.

Justice Kennedy: I thought your answer to me was that an immediate breach of the peace is not required.

Mr. Cleary: No, I didn't mean to suggest that, Your Honor.

I don't mean to suggest Chaplinsky is no longer good law in terms of the immediate breach of peace standard.

Justice Kennedy: What is the constitutional test that you propose for those fighting words, whatever that means, which can be proscribed?

Mr. Cleary: If the Court... the Court has spent 50 years redefining the lines of Chaplinsky.

The immediate breach of peace language, as I understand it, is the only language that has really been construed because that is what New Hampshire construed.

I believe the reflexive violence theory of it perhaps is not as strong now as it was 50 years ago, but at the same time, I think that the Court need not overrule that type of thinking to get to this opinion and this decision.

Justice Kennedy: Well, is the theory that the hearer will commit violence on the speaker?

Mr. Cleary: I think the theory of Chaplinsky is a hostile audience idea as opposed to Brandenburg.

Justice Kennedy: And is that the theory the State proceeds on here so far as you understand the case?

Mr. Cleary: Yes, I believe so.

But I believe the State is--

Justice Kennedy: And is that theory constitutional so far as applied to this statute?

Mr. Cleary: --It's constitutional in the sense that immediate breach of peace is still good law under Chaplinsky, yes.

But it's my position that the balance of the language in the opinion leads to a vagueness which under Kolender is much more serious in terms of selective and discriminatory law enforcement.

Justice Kennedy: All right.

Could this conduct be punished by a narrowly drawn statute that proscribes threats that cause violence?

Could that state a cause of action against your client?

Mr. Cleary: I believe it could.

Justice Kennedy: On these facts?

Mr. Cleary: I believe it could.

I believe, I have never argued that... again, that the conduct alleged in this case could not be addressed by viewpoint-neutral laws, but this type of a law leaves open the possibility for viewpoint discrimination, and it opens up, again, the selective enforcement idea.

Justice O'Connor: Well, you say it's underinclusive.

Mr. Cleary: I do, Your Honor, in the sense, not necessarily exactly like Erznoznik, but in the sense that it definitely picks and betrays government neutrality.

I think the government must be neutral when they go about compiling laws or construing laws that may effect First Amendment rights.

Certainly in this current time there is a great deal of fear, and that First Amendment... and as it is construed and as it is before this Court has to face the environment that we find ourselves in as a Nation.

Justice Brandeis once said that fear breeds repression and repression breeds hate.

I believe that this is the hour of danger for the First Amendment in that there are many groups that would like to encroach upon its principles with well-meaning intentions, but in doing so, they are still punishing the content of the communication and they are doing so in a discriminatory manner, and the government is betraying a neutral principle in the sense that they are allowing that to happen and they are partaking in that.

Justice Scalia: Mr. Cleary, going back to what Justice Kennedy was asking about, the fighting words doctrine, it depends case by case on the reaction of the person who hears the words, is that right?

Mr. Cleary: That is as I understand it, Your Honor.

Justice Scalia: So you can use any language whatever in a Quaker community, if you are in a solid Quaker community, you can be much more insulting than you can somewhere else.

Does that make a lot of sense?

Mr. Cleary: I think it... pardon me?

Justice Scalia: Does that make a lot of sense?

Mr. Cleary: No, but it does rely on audience reaction, the idea of Chaplinsky does rely on audience reaction, the reflexive violence idea, and everyone is going to be different, but that kind of runs right into what I am referring to on the injury idea.

What if someone injured offensively--

Justice Scalia: Might it not be a reasonable man standard?

I guess you could have to consider Quakers not reasonable men, at least insofar as their strong aversion to violence is concerned, but might not that be the standard for the fighting words doctrine?

Mr. Cleary: --In terms of the immediate breach of peace, it might be.

Justice Scalia: Yes.

I mean, if you happen to be in a pacifistic community, why should the law take that into account, why should the law subject these people to that kind of abuse which other people would be provoked to respond to with violence.

Mr. Cleary: I agree--

Justice Scalia: So it doesn't necessarily depend on the particular people to whom the words are addressed.

Is that right?

Mr. Cleary: --No, except that I think it has been a case-by-case adjudication for 50 years under Chaplinsky in terms of the immediate breach of peace and getting into a reasonable man standard on immediate breach of peace I think would be much easier to litigate than the inflict injury because I think the inflict injury brings us back to the Boos v. Barry and Hustler Magazine idea, that political discourse involves outrageousness, and these are the some of the major issues of our day and there are going to be intolerant opinions displayed.

And the question--

Justice Blackmun: Have you had anymore cross burnings in St. Paul since this incident?

Mr. Cleary: --I am not aware of any, Your Honor.

That doesn't mean there haven't been any, but I am not aware of any.

Justice Blackmun: Well, there certainly would be publicity--

Mr. Cleary: I think there would in St. Paul, Your Honor.

The possibility, as Justice Scalia has indicated earlier, for the application of this ordinance to all kinds of opinions is clear.

We have again the most, perhaps the most hateful example that could come under this type of a law, but we are left with all the other political discourse and debate that could fall under its parameters, and that is the danger of the Minnesota supreme court opinion.

It leaves that possibility wide open.

It even talks about hate symbols at one point as not being totally banned and then in another point indicates, very close to indicating that they are fighting words per se, that swastikas and burning crosses are always symbols of hatred communities have the obligation to confront.

That reads very closely as being a ban in my view.

Justice Scalia: --So you think they can't be fighting words per se?

Mr. Cleary: The symbols themselves?

Justice Scalia: There is no such thing as a fighting word per se, you always... this is going back to our prior discussion.

You have to look at the particular group.

Mr. Cleary: I agree.

I don't think that fighting words, per se, would ever work.

I think that that would really involve a censoring of expression and that would--

Justice Scalia: So the Quakers have no protection or the peaceful family that would not punch out someone who waved a swastika in their face, that's their misfortune, that they are so law-abiding as not to be violent, and therefore, what would otherwise be fighting words can be used against them.

Mr. Cleary: --I think the tension, Justice Scalia is between the First Amendment right of expression and the--

Justice Scalia: Well, I know that is the tension, but why is it that there can't be such a thing as a fighting word per se, a kind of a word that would be likely to provoke a violent reaction from an ordinary person.

Whether this person or this crowd in particular would be violent doesn't matter.

Mr. Cleary: --I think the danger in that is that it could lead to a total ban of language or of symbols or other expression that any community would call fighting words per se.

I think when you get--

Chief Justice Rehnquist: Certainly the Court's opinion in Texas against Johnson suggested that there couldn't be a fighting symbol at any rate, per se, did it not?

Mr. Cleary: --That's correct, Chief Justice.

I think that the Court's holding in Texas v. Johnson supports the petitioner's position in this case, and I also would point out that I do not think that the dissents are necessarily inconsistent with the petitioner's position on this law.

I would say that is particularly true because of the fact that this Court put a great emphasis on the unique nature of the American flag and in doing so, I believe acknowledged the Stromberg red flag of the '30's, the black armband in the '60's, a tinker, and was mindful of the fact that once that door is opened, that it could lead to a ban on symbolic behavior in such a fashion that a great deal of expression would be prohibited.

Justice Kennedy: Suppose the listener fears for the listener's safety?

Is that a proscribable kind of expression?

Mr. Cleary: Describing a threat, Your Honor?

Justice Kennedy: Yes.

The listener fears for the listener's safety.

Mr. Cleary: I think it is pursuant to a viewpoint-neutral law in terms of a decision as to whether there is an intent to threaten.

Justice Kennedy: I take it the threat in your view has to be imminent?

Mr. Cleary: I believe that there would need to be a finding of intent to threaten and so therefore that would be one of the considerations as to whether or not it was imminent or not.

Justice Kennedy: Suppose the listener fears for the listener's safety over the period of the next month.

Is that an imminent danger?

Mr. Cleary: It is hard to draw the line on--

Justice Kennedy: There are 15 policemen there when the cross is being burned and so there is no imminent danger in that sense.

Mr. Cleary: --There is certainly communication and it certainly could be considered a threat, and I believe a prosecution pursuant to a viewpoint-neutral law such as terroristic threats might address that, but I don't believe this law either as written or narrowly construed would be the law to address that.

I would like to reserve the balance of my time.

Argument of Tom Foley

Chief Justice Rehnquist: Thank you, Mr. Cleary.

Mr. Foley, we will hear now from you.

Justice Blackmun: Mr. Foley, before you get started, let me ask a couple of trivial questions.

You are the county attorney, aren't you?

Mr. Foley: Yes, I am, Justice Blackmun.

Justice Blackmun: And yet the city is the respondent here.

Mr. Foley: Yes, under Minnesota law, Justice Blackmun, the county attorney handles all matters involving juveniles and this matter was a prosecution of a juvenile, so we represent any activity, whether the matter is under a city ordinance or State ordinance or a Federal crime.

Justice Blackmun: And this is why the city is a party to one of the amicus briefs as well as being the respondent in the case.

Mr. Foley: That's correct, Justice Blackmun.

Justice Blackmun: A little unusual, I suppose.

Mr. Foley: It is an unusual--

Justice Blackmun: Let me ask one other trivial question.

The cross burning took place on Earl Street, didn't it?

Mr. Foley: --Yes, it did.

Justice Blackmun: Whereabouts on Earl Street?

That is a long street, it runs from Mounds Park to Finland Park.

[Laughter]

Mr. Foley: 290 Earl Street.

Justice Blackmun: Hm?

Mr. Foley: 290 Earl Street.

Justice Blackmun: I know that, but where is 290?

What is the cross street?

Mr. Foley: I don't have the cross street, Justice Blackmun.

Justice Blackmun: You don't know--

[Laughter]

It is near Mounds Park or is it near Finland Park?

Mr. Foley: It's near Mounds Park.

Justice Blackmun: I was up there last June with some U.S. Marshals who had never been there.

And I think it's one of the most beautiful views in the City of St. Paul.

But the grass was so high you couldn't see the view.

Have your maintenance man cut the grass.

[Laughter]

Mr. Foley: Justice, under our Constitution everyone is presumed innocent until they've had a trial.

[Laughter]

Justice Scalia: Mr. Foley, if you're going to make all these concessions you might as well sit down now.

[Laughter]

Mr. Foley: Mr. Chief Justice, and may it please the Court:

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.

The City of St. Paul has the right to prohibit and prosecute such conduct.

The ordinance at issue in this case has been interpreted by the Minnesota supreme court to prohibit only conduct that inflicts injury, tends to incite an immediate breach of the peace, or provokes imminent lawless action.

Chief Justice Rehnquist: Mr. Foley, do you agree with your colleague on the other side that the supreme court of Minnesota in its opinion did not decide whether the conduct with which R.A.V. was charged came under the ordinance?

Mr. Foley: Your Honor, it's our contention that the Minnesota supreme court, yes, did decide that the conduct came under the ordinance and set it back for trial on the merits.

Chief Justice Rehnquist: So you and he disagree on that?

Mr. Foley: Yes, sir.

And unless this Court is willing to abandon its holdings in Chaplinsky and Brandenburg, holdings that it has upheld for the last 50 years, this ordinance must be upheld.

In this oral argument I'm going to touch on four propositions.

First is the purpose of the ordinance.

Second, that the ordinance has been narrowly construed by the Minnesota supreme court only to apply to fighting words.

Third, that the ordinance as construed is not overbroad or vague.

And fourth, that the ordinance does not interfere with legitimate First Amendment rights.

Justice O'Connor: Well, Mr. Foley, would you address the concern expressed by your opponent that the ordinance is limited to only fighting words that arouse anger, alarm, or resentment on the basis of race, color, creed, or religion or gender and not other fighting words that could cause the same reaction in people?

The argument is that the statute is underinclusive.

Mr. Foley: Your Honor, it's our position that the statute is not underinclusive, that this is a fighting words case, that this is unprotected conduct under the First Amendment, and that the City of St. Paul has the right to determine which harms it can proscribe within the limits of its jurisdiction.

Justice O'Connor: Well, certainly it is limited by subject matter or content of the fighting words that are spoken, is it not?

In that sense it is a content-based ordinance.

Mr. Foley: Your Honor, it's our position that it is not a content-based ordinance, that it certainly could be used to be a content-neutral ordinance.

Justice O'Connor: Well, but it doesn't cover fighting words that are not limited to words on the basis of race, color, creed, religion, or gender.

Mr. Foley: That's correct, Your Honor.

Justice O'Connor: So why, I mean, how can you possibly say it isn't content-based to that extent?

Mr. Foley: Your Honor, we have alternative theories that it is content-based, but it is unprotected conduct because it is fighting words, but we also believe that the main purpose of the ordinance is not to limit freedom of expression in that the harm that it's attempting to regulate is neutral and it could be considered content-neutral under the Renton-Barnes analysis that this Court has engaged in, but even if the Court feels that it is content-based, that there is a compelling State purpose in public safety and order and safety of their citizens for the City of St. Paul to pass such an ordinance.

Justice Scalia: Why is that?

Mr. Foley, suppose you, the other major area of speech that we have called nonspeech, I guess it's just a matter of analysis, but we call it obscenity, not speech, not protected by the First Amendment.

Now I assume that it would be bad, would it not, to have an ordinance that says you cannot use obscene photographs to advertise... I don't know, the Republican Party.

[Laughter]

You may not use obscenity for the following purposes, and then picking very content-based purposes for advertising the Republican Party, this cause, the other cause.

That would be bad, wouldn't it, even though you're dealing with unprotected speech.

If you want to prohibit obscenity, prohibit obscenity.

So it's the same here, if you want to prohibit fighting words, prohibit fighting words.

But why pick only if you use fighting words for these particular purposes, race, color, creed, religion, and gender?

What about other fighting words?

Mr. Foley: I think the city has an absolute right and purpose to try to regulate the harm that goes onto its citizens.

And certainly this bias-motivated conduct and violence is much more harmful and has more harmful impacts to its citizens--

Justice Scalia: That's a political judgment.

I mean, you may feel strongest about race, color, creed, religion, or gender.

Somebody else may feel strong as to about philosophy, about economic philosophy, about whatever.

You picked out five reasons for causing somebody to breach the peace.

But there are a lot of other ones.

What's your basis for making that subjective discrimination?

Mr. Foley: --Your Honor, the City of St. Paul is attempting to fashion responses to violence that it deems necessary to prohibit and will add additional harms to be regulated as it finds them.

Under this particular ordinance, it seemed that this is a particular harm going on that is necessary within the City of St. Paul to prohibit and regulate.

Justice Scalia: It doesn't have to add anything.

You could just drop the words and, you know, just say that arouses anger, alarm, or resentment in others, period, or shall be guilty of a misdemeanor.

It didn't have to say arouses anger, alarm, or resentment on the basis of race, color, creed, religion, or gender.

You don't need that for Chaplinsky.

If it's a fighting word, it's a fighting word.

They could get the cross burning, they could get all sorts of activities.

Mr. Foley: Your Honor, I think it's the city's position that this is a fighting words case, that the ordinance has been sufficiently narrowed by the Minnesota supreme court.

And you could reread that ordinance under these facts to say that whoever based on race, places an object or symbol with the intent to inflict injury, incite immediate violence, or provoke imminent lawless action is guilty of a crime.

And I think that the Minnesota supreme court's narrowing of that ordinance is sufficient to uphold its constitutionality under the Chaplinsky and Brandenburg holdings of this Court.

Justice Souter: Well, are you saying that because they can prevent or punish all fighting words, they can select any category within the broad scope of fighting words for it to be singled out?

Mr. Foley: Yes, Your Honor.

Justice Souter: If that is true, then why isn't it equally true in a case in which there's a time, place, or manner restriction?

Why can't that be, since time, place, and manner restrictions are constitutional, why can't they, too, be limited to certain particular harms based on content?

Mr. Foley: The... I think they can specify the harm.

Justice Souter: We can have content-based time, place, and manner?

Mr. Foley: Yes.

No, no.

Excuse me, Your Honor, I didn't catch the question.

The content-based application of this ordinance, under fighting words, is clearly within the power, if you find that it is a fighting words case outside the protection of the First Amendment, certainly the city has the right to prohibit harms that it sees are very harmful to citizens of St. Paul.

Justice Souter: So you're saying fighting words simply is not protected speech as such, and therefore, we can select anything within the category of fighting words.

It's different from time, place, and manner in that respect, is that what you're saying?

Mr. Foley: Yes, Your Honor.

Justice Souter: Isn't it true that the, at least up to now, that any concept we may have had of fighting words has been a concept which took fighting words as a whole and assumed that to the extent that they could be punished, they would be punished as fighting words, not as categories within fighting words?

So that if we accepted your view, we would be making new law, wouldn't we?

Mr. Foley: I don't believe we would be making new law under that analysis.

I think under the fighting words doctrine, if there is action that either inflicts injury or causes immediate breach of the peace and under this particular ordinance as construed by the Minnesota supreme court, there has to be action combined with an intent to cause that action with the defined affect of being based on the race, in this particular case, of the Jones family.

And I think under that narrowing of the elements of this particular crime, it falls within a very narrow category of fighting words and falls within the Chaplinsky-Brandenburg doctrine as outlined by this Court.

Justice Blackmun: Mr. Foley, does the fact of the burning of the cross on the lawn of the Jones family have any bearing here?

Perhaps I misunderstood you, but I take it in your approach it doesn't have any great bearing.

Mr. Foley: It does have a bearing on the violation of this ordinance in how you analyze what is a violation of fighting words.

In this particular case there was the burning of the cross within the fenced yard of the Jones family.

It was an immediate threat to inflict injury and fear to the Jones family to cause an immediate breach of the peace.

And in analyzing the ordinance, you really have to look at the total circumstance and the context used.

The Minnesota supreme court indicated that not all cross burnings were illegal, only those that--

Justice Blackmun: What if the burning were done in front of the Ramsey County courthouse at Wabasha and Kellogg Boulevard?

Mr. Foley: --Your Honor--

Justice Blackmun: Or in a different situation, around the plaza of the State Capitol?

Mr. Foley: --Your Honor, we believe this ordinance would not be applicable if the burning cross was done in a public forum or in a political parade of some sort.

It's only when the conduct in this case is done in a manner to inflict injury or cause an immediate breach of the peace that it violates this particular narrowed ordinance as construed by the Minnesota supreme court.

Justice Stevens: Let me... may I interrupt with this question?

As you read the Minnesota supreme court, would it violate the statute for a person to, who lived in an integrated neighborhood to burn a cross in his own front yard?

Mr. Foley: Not with... it would not unless there was the intent to cause, to inflict injury--

Justice Stevens: Those are the only facts you know.

If they burn the cross, is there an element of intent that you allege in your count against these people?

Mr. Foley: --There's an element of intent with the ordinance saying know or have reason to know that it would arouse--

Justice Stevens: That it would arouse anger, alarm, or resentment in others.

And if you made this same allegation against a person who lived in an integrated neighborhood where people go by his front yard all hours of the day and night, would you not think that would arouse, alarm, and resentment that perhaps--

Mr. Foley: --It would not arouse anger, alarm, or resentment under the fighting words doctrine as the Minnesota supreme court had previously construed that language in the S.L.J. case.

It's only when it arouses anger, alarm, or resentment that arises to fighting words, again, inflicting injury.

It has to be more than offending the sensibilities.

I think you have to look at the injury and the immediate breach of the peace.

Is it targeted and directed at a particular individual?

And under--

Justice Stevens: --But you have not alleged in count 2 that is targeted at a particular individual, as I understand it.

Mr. Foley: --The burning of the cross in the fenced yard--

Justice Stevens: We don't know anything except what's in the... alleged in counts 1 and 2 of the information.

Mr. Foley: --I think it's important to look at the facts that--

Justice Stevens: But this, it came up on motion to dismiss, didn't it?

Mr. Foley: --Yes it did, Your Honor.

Justice Stevens: Now how can we look at anything except what you've alleged in the complaint?

Mr. Foley: On a, on a motion to dismiss the facts of the file are all construed on behalf of the nonmoving party.

Justice Stevens: But you can't make up facts that you have it alleged.

Mr. Foley: No, but the facts that have been submitted to the court and all of the police reports that go to the intent of the--

Justice Stevens: You mean the police reports are a part of the charging papers?

Mr. Foley: --In Minnesota we have filed all of the police reports in, with the petition to the court.

Justice Stevens: Are they in the record?

Mr. Foley: They should be submitted to you and have all the police reports.

Justice Souter: Mr. Foley, I'm having trouble with terminology and it may be my fault, but I have assumed that Chaplinsky spoke to two different categories, the words that injure category and the fighting words category.

Are you claiming that at least as the Minnesota supreme court understands those two sets of terms, or those two categories, that this is a fighting words case or a word or expression that injures case?

Or does it have to be both as you understand the Minnesota supreme court's construction?

Mr. Foley: My understanding of the Minnesota supreme court's construction is that it could be either.

It could either be the inflicts injury prong of the Chaplinsky decision, which this Court has never really addressed since announcing it in Chaplinsky, or the immediate breach of the peace prong, and that the Minnesota supreme court upheld both prongs as still good, viable law and sent it back to the trier of fact to look at the totality of circumstances in the context in which this occurred.

Justice Souter: Do you at least allege that there is a fighting words offense here, that there is an immediate breach of the peace implied by what you have alleged about the burning of the cross?

Mr. Foley: Your Honor, I think we allege both prongs in this and that we would rely more heavily on the inflicts injury prong to the family, the Jones family, the burning of the cross in the middle of the night outside of their home is more than just outrageous conduct.

It is a direct harm to these people, causing fear, intimidation, threats, and coercion and I think that this Court could look at that inflicts injury and indicate what does the injury prong of Chaplinsky, what does it do?

It invaded a substantial privacy interest of these people in a totally intolerable manner, and we think that the injury prong should be addressed, but there is still--

Justice Kennedy: --I am sorry, I didn't mean to interrupt you.

Mr. Foley: --Excuse me.

We also feel that the immediate breach of the peace prong is viable under these facts as alleged in the petition.

Justice Souter: Going back to your earlier answer, if I understand it, with respect to the infliction of injury point, your theory is that because the category of words that inflict injury are outside First Amendment protection, it is not an objection in this case that the particular words or expression that inflict injury are identified by means of content.

Is that a fair statement of your position?

Mr. Foley: We think they can be content-based under those circumstances.

Justice Souter: For the reasons I just gave?

Mr. Foley: Yes.

I think it is important to look at bias-motivated violence which is significantly more harmful on the impact than similar criminal conduct not similarly motivated.

The burning of the cross and the African-American family is not the equivalent of a simple trespass or minor arson, either to the targeted victims or to the community in which it occurred.

Justice Scalia: Well, you say bias-motivated, but it depends on what your biases are.

If a family with a mentally deficient child should move into the neighborhood or if there should be established in the neighborhood a home for the mentally ill, and someone should burn a cross on the lawn of that home or institution with a sign that says, mentally ill out, that would not be covered by this ordinance, isn't that correct?

Mr. Foley: I don't believe under the facts that you described that it would.

Justice Scalia: It's the wrong kind of bias.

It's... at least until they come around to adding... which may well be the next one, gender, religion, gender or disability, until they come around to adding that, it's the wrong kind of bias and therefore you can't--

Mr. Foley: It's probably not addressed under this particular ordinance.

There are other alternative criminal laws that may apply to that particular situation.

Justice Scalia: --Why is that?

I mean, if you are concerned about breaches of the public peace, if it's a fighting words problem, why is it okay for the State to have the public peace broken for that reason?

It's only these other reasons they are worried about, why is that?

That seems to me like the rankest kind of subject matter discrimination.

Mr. Foley: Well, there are many reasons that cities and State legislatures look to a particular wrong that they are attempting to address, and I don't think they address all of those wrongs at the same time, and they attempt to get as many of them as they can and they do address in a content-based... under certain circumstances, certain harms that they want to address and including--

Justice Scalia: It wasn't hard, it wasn't hard to write this in such a way that it wouldn't discriminate in that fashion.

They just had to drop out, on the basis of race, color, creed, religion or gender, but those are the only things that they seemed to be concerned about.

Mr. Foley: --I think the Minnesota supreme court addressed or made reference to that issue when it said that the particular city ordinance could have been drawn a little bit better, but then went on to clearly narrow the impact of that ordinance and narrowed it only to apply to fighting words.

And in the context of the facts of this case, the burning of the cross, the historical context of a burning cross in the middle of the night is a precursor to violence and hatred in this country--

Justice O'Connor: Well, Mr. Foley, I would have thought you might respond to Justice Scalia's question by citing New York against Ferber for the proposition that if the language is unprotected by the Constitution as you assert is the case here, then underinclusiveness just doesn't apply.

The State can single out what it wants, at least that's what the Court said in that case.

Do you rely on that?

Mr. Foley: --We do rely on Ferber and FCC v. Pacifica as certain harms that this Court has looked at and addressed to protect certain individuals from harm, and certainly didn't mean to overlook the Ferber decision.

In the case of bias-motivated crimes, there is a compelling State purpose to deal with what is a cancer on society and it will unless effectively dealt with spread throughout the community.

Bias-motivated crimes have a devastating effect on the particular target victims and equally profound effect on all members of the minority that is indirectly targeted and a pervasive effect on the community as a whole.

Justice White: Mr. Foley, I take it you are not arguing that if the statute or the ordinance had not been narrowed by the supreme court that it would have, that it would be constitutional?

Mr. Foley: No, Your Honor.

We think it would have been constitutional, unconstitutional under the--

Justice White: Well, don't you have some trouble, then, with the Lewis case in this Court--

Mr. Foley: --I don't believe so--

Justice White: --Lewis seemed to hold that although a State supreme court purported to narrow an ordinance to fighting words, that it just hadn't successfully done so, and do you think the narrowing that was done or attempted in this case was somewhat different than what the Louisiana court did, for example?

Mr. Foley: --I believe, Justice White, your first question is that it would have been unconstitutional as written under the Gooding decision, and when the Lewis case was sent back in light of Gooding, the Louisiana supreme court essentially made very little effort to abide by the Gooding decision in how it referenced fighting words, but clearly the statute had a broader, more sweeping view of--

Justice White: Well, the supreme court said it was narrowing the law to fighting words.

It covers only fighting words and any fool would know what a fighting word is.

Mr. Foley: --It said it was narrowing it to fighting words, but left in effect some of the language that was clearly... appropriate language that was clearly broader--

Justice White: Your court didn't... it left the ordinance reading exactly what... left all the words in the ordinance in there.

They didn't say, which they might have... they should have said that to the extent this statute reaches other than fighting words, the statute is unconstitutional.

It didn't say that, it just gave a construction, and left those words... all the words in the--

Mr. Foley: --The Lewis Court just made a reference to fighting words.

The Minnesota supreme court not only made reference to fighting words, but each of the individual prongs cited in the opinion also cited Brandenberg in the imminent lawless action, it attempted to follow the directions of this Court as precisely as it could from the Lewis decision and cites to... and attempts to distinguish the Lewis decision, and I think the Minnesota supreme court did include fighting words and limit according to previous rulings of Minnesota, very similar to what the New Hampshire supreme court did in Chaplinsky.

So I think it did make... is different than the Lewis holding.

Given the historical experience of African-Americans, a burning cross targeted at a black family under the circumstances outlined is an unmistakable threat.

Terroristic conduct such as this can find no protection in the Constitution.

Thank you, Your Honors.

Rebuttal of Edward J. Cleary

Chief Justice Rehnquist: --Thank you, Mr. Foley.

Mr. Cleary, you have 4 minutes remaining.

Mr. Cleary: Thank you, Chief Justice.

In reference to Justice White's and Justice O'Connor's observations, this is Lewis, this is not Ferber.

This is not marginal effects on the First Amendment expression.

This is a huge hole and I believe it really represses a great deal of expressive conduct, much more so than the marginal impact of Ferber.

Mr. Foley mentions in relation to Justice Scalia's question concerning the underinclusiveness, there was a content-neutral disorderly conduct ordinance available that did not... underinclusive, fighting words.

More importantly perhaps, since Mr. Foley spends a lot of time talking about the terroristic factual allegations here, there were other more serious laws available that didn't make this kind of a political statement.

This is not a question about whether anyone here approves of this alleged conduct.

There were tough ways of dealing with it without implicating the First Amendment.

Justice Scalia: Excuse me.

Are you saying there was another general breach of the peace ordinance that could have covered this?

Mr. Cleary: Yes.

Justice Scalia: A general breach of peace ordinance that would have covered fighting words?

Mr. Cleary: The S.L.J. was--

Justice Scalia: All fighting words.

Mr. Cleary: --S.L.J. was narrowly construed by the Minnesota court to read, just fighting words without any subgroups or any of the rest of this language.

Justice Scalia: So then you could say that the municipality's law as a whole did not discriminate on the basis of subject matter?

I mean, under this particular ordinance you can only get certain types of fighting words, but you are saying under another ordinance you could get the rest.

What's wrong with that?

Mr. Cleary: I am saying... the other ordinance would implicate the First Amendment but not in terms of the viewpoint neutrality and not in terms of the under inclusiveness.

Justice O'Connor: Do we have that other ordinance, that--

Justice Stevens: That's a statute, not an ordinance.

Mr. Cleary: It's cited in the briefs, Your Honor.

Chief Justice Rehnquist: --Were there differences in penalties under one or the other?

Mr. Cleary: No.

Chief Justice Rehnquist: They are exactly the same--

Mr. Cleary: They are both misdemeanors.

Justice Stevens: --In S.L.J. wasn't it a statute, not an ordinance?

Mr. Cleary: Excuse me, it was a statute.

The penalty was the same, however.

They are both 90 days maximum.

Justice O'Connor: Where is the citation?

Will you furnish it later so we don't use up your last minute?

Mr. Cleary: Certainly, Your Honor.

In closing, I would ask the Court to consider this, that it would be a sad irony if we diminished the First Amendment right of free expression to American citizens in this way when the countries of Eastern Europe and the Baltic States and the Soviet bloc are returning their liberties to their citizens.

I would ask the Court to reverse the Minnesota supreme court decision to remand this case for trial on the remaining charge.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Cleary.

The case is submitted.