Amdt1.7.4.4 Viewpoint-Based Distinctions Within Proscribable Speech

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.

Although content-based regulation of speech typically receives strict scrutiny,1 there are certain, limited categories of speech—sometimes called “unprotected” speech—that the government may prohibit because of its harmful content.2 Even when regulating in these areas, however, the government is not free to draw viewpoint-based distinctions, as explained in R.A.V. v. City of Saint Paul.3 R.A.V. involved an ordinance that criminalized, among other acts, placing a burning cross on someone’s property knowing that it would “arouse[ ] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” 4 For purposes of its analysis, the U.S. Supreme Court accepted the Minnesota Supreme Court’s conclusion that the law reached only expressive acts that constitute “fighting words” —a category of unprotected speech.5 The Court nevertheless concluded that the law violated the First Amendment because it drew additional distinctions between different types of fighting words based on subject matter and viewpoint.6 The ordinance, the Court explained, applied “only to ‘fighting words’ that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’” 7 The Court held that the city could not “impose special prohibitions on those speakers who express views on disfavored subjects” —that is, on race, religion, or one of the other named topics.8 The Court also held that the ordinance effectively amounted to “actual viewpoint discrimination” because persons “arguing in favor of racial, color, etc., tolerance and equality” could use fighting words that “could not be used by those speakers’ opponents.” 9

Eleven years later, in Virginia v. Black, the Court held that a state could prohibit cross-burning with the intent to intimidate because “burning a cross is a particularly virulent form of intimidation,” and such “true threats” are considered unprotected speech under the First Amendment.10 The ordinance in R.A.V. was distinguishable, the Court explained, because it singled out threats made on the basis of certain viewpoints.11

See Amdt1.7.5.1 Overview of Categorical Approach to Restricting Speech. back
R.A.V. v. City of St. Paul, 505 U.S. 377, 383–84 (1992) (referring to “proscribable content” ); id. at 406 (White, J., concurring in the judgment) (referring to “unprotected speech” ). back
Id. at 388–91 (majority opinion). back
Id. at 380. back
Id. at 380–81. See Amdt1.7.5.5 Fighting Words. back
R.A.V., 505 U.S. at 381, 391. back
Id. at 391. Justice Antonin Scalia, writing for the majority, gave the following example: “One could hold up a sign saying, for example, that all ‘anti-Catholic bigots’ are misbegotten; but not that all ‘papists’ are, for that would insult and provoke violence ‘on the basis of religion.’” Id. at 391–92. back
Id. at 391. back
Id. back
538 U.S. 343, 359–60, 363 (2003). The Court ruled that a certain provision of the statute at issue was unconstitutionally overbroad. Id. at 367 (plurality opinion). back
Id. at 361 (majority opinion). back