First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In Beauharnais v. Illinois,1 relying on dicta in past cases,2 the Court upheld a state group libel law that made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, part of which was in the form of a petition to his city government, taking a hard-line white-supremacy position and calling for action to keep African Americans out of White neighborhoods. Justice Felix Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every state in the Union. These laws raise no constitutional difficulty because libel is within that class of speech that is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, then no good reason appears to deny a state the power to punish the same utterances when they are directed at a defined group, “unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.” 3 Justice Felix Frankfurter then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably have feared substantial evils from defamatory racist statements. He also held that the Constitution did not require states to accept a defense of truth, because historically a defendant had to show not only truth but publication with good motives and for justifiable ends.4

The holding of Beauharnais, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been undercut by subsequent developments, including the Court’s subjecting defamation law to First Amendment challenge and endorsing “uninhibited, robust, and wide-open” debate on public issues in New York Times Co. v. Sullivan.5 Further, in R.A.V. v. City of St. Paul, the Court, in an opinion by Justice Antonin Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not “entirely invisible to the Constitution,” even though they “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.” 6 Content discrimination unrelated to that “distinctively proscribable content,” however, runs afoul of the First Amendment.7 Therefore, the city’s bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. Consequently, the R.A.V. Court held: “The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.” 8

In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.9 The state law did not single out only speech on certain disfavored topics; nor, as a factual matter, did all “cross burners direct their intimidating conduct solely to racial or religious minorities.” 10 Under R.A.V., the statute permissibly targeted a subset of true threats “because burning a cross is a particularly virulent form of intimidation.” 11

The Court has also struck down non-libel legislation intended to prevent offense of individuals and groups of people as unconstitutional. For example, in Matal v. Tam, the Supreme Court considered a federal law prohibiting registering trademarks that “may disparage . . . or bring . . . into contempt[ ] or disrepute” any “persons, living or dead.” 12 In Tam, the Patent and Trademark Office rejected a trademark application for THE SLANTS for an Asian-American dance-rock band because it found the mark may be disparaging to Asian Americans.13 The Court held that the disparagement provision violated the Free Speech Clause as “[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” 14 Two years later, the Court invalidated another statutory trademark restriction—one prohibiting the registration of “immoral” or “scandalous” marks—on similar grounds.15

Footnotes

1

343 U.S. 250 (1952).

2

Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707–08 (1931).

3

Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952).

4

343 U.S. at 265–66.

5

376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp. 676 (N.D. Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff’d, 578 F.2d 1197 (7th Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 (1978) (Justices Harry Blackmun and William Rehnquist dissenting on the basis that Court should review case that is in “some tension” with Beauharnais). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval).

6

505 U.S. 377, 383 (1992).

7

505 U.S. at 384.

8

Id. 505 U.S. at 391. On the other hand, the First Amendment permits enhancement of a criminal penalty based on the defendant’s motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 485. It distinguished R.A.V. as involving a limitation on speech rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (for example, they are more likely to provoke retaliatory crimes). Id. at 487–88. See generally Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 Sup. Ct. Rev. 1.

9

538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as “a burning cross is not always intended to intimidate,” but may constitute a constitutionally protected expression of opinion. Id. at 365–66.

10

538 U.S. at 362 (majority opinion).

11

538 U.S. at 362–63.

12

No. 15-1293, slip op. (2017).

13

Id. at 1.

14

Id. at 1–2.

15

Iancu v. Brunetti, 588 U.S., No. 18-302, slip op. at 2 (2019) (quoting 15 U.S.C. § 1052(a)). See also Amdt1.7.5.11 Obscenity.