R.A.V. v. City of St. Paul

On the night of June 21, 1990, Robert A. Viktora — identified in court records by the initials R.A.V. because he was a juvenile — and several companions assembled and burned a crude wooden cross inside the fenced backyard of a Black family, Russ and Laura Jones, who were one of the few Black families living in their St. Paul, Minnesota neighborhood. The burning cross was not abstract symbolism; it was an act of terror with a specific target.

Viktora was charged under the St. Paul Bias-Motivated Crime Ordinance, which made it a misdemeanor to place on public or private property a 'symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, 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.' The Minnesota Supreme Court construed the ordinance narrowly to cover only 'fighting words' — the historically unprotected category of face-to-face provocations likely to cause an immediate breach of peace — and upheld it on that basis.

The Supreme Court unanimously struck down the ordinance but fractured sharply on the rationale. Justice Scalia wrote for five justices with the controlling analysis. Even assuming the ordinance reached only unprotected fighting words, Scalia held that the government still cannot regulate only a viewpoint-specific subset of that unprotected category. The ordinance targeted fighting words that expressed hostility based on race, religion, or sex, but not equally virulent fighting words based on other characteristics — political affiliation, union membership, sexual orientation. This content-based, viewpoint-discriminatory selection was unconstitutional even within an unprotected category.

Four justices — White, Blackmun, Stevens, and O'Connor — concurred only in the judgment, arguing that the ordinance was simply overbroad (it captured some protected speech as well as fighting words) and that the majority's new doctrine was unnecessary and potentially dangerous. The doctrinal disagreement within the unanimous result made R.A.V. one of the most contested decisions in First Amendment law.

R.A.V. established what First Amendment scholars call the 'content discrimination within categories' rule: even in the unprotected speech categories — fighting words, obscenity, true threats — the government cannot single out a viewpoint-based subset for special prohibition. This rule is the primary constitutional reason why the United States lacks the hate speech laws that many democracies have enacted. A law prohibiting only racist fighting words, but not equally offensive fighting words based on other characteristics, picks out a particular viewpoint for disfavor.

The White concurrence argued that the majority's analysis was perverse: it required the government, if it wanted to regulate hate speech at all, to pass broader laws covering all comparable expression rather than narrowly targeted laws covering only the most harmful forms. The majority responded that viewpoint discrimination is viewpoint discrimination regardless of the regulatory mechanism.

Scalia's opinion contained an important exception: the government can restrict a subcategory of unprotected speech without viewpoint discrimination if it targets the 'secondary effects' of that speech rather than its expressive content — a qualification that has generated substantial academic debate about its scope.

R.A.V. is the foundational case for the constitutional analysis of hate speech regulation. Virginia v. Black (2003) subsequently refined the cross-burning context, holding that a state can prohibit cross burning done with intent to intimidate — a targeted threat — without R.A.V. objection, because the prohibition targets the threat rather than the viewpoint. Wisconsin v. Mitchell (1993) upheld bias-crime penalty enhancements on the ground that they target conduct, not speech. Together, these cases establish that the government can reach hate-motivated crime, but not hate speech as a viewpoint category.

R.A.V. is also cited in virtually every challenge to campus speech codes, online hate speech regulations, and proposed federal anti-hate-speech laws. The decision is frequently presented as an example of American First Amendment exceptionalism — a constitutional commitment to protecting offensive expression that sets the United States apart from most liberal democracies.

R.A.V.'s content-discrimination rule directly shapes every proposed online hate speech law, platform hate speech code with regulatory backing, and anti-bias speech ordinance. The decision requires that any government restriction on speech within an unprotected category be viewpoint-neutral — targeting the harm of the speech rather than the viewpoint it expresses.

In practice, this makes American hate speech regulation operate primarily through bias-crime enhancements (targeting conduct motivated by bias) and true-threats doctrine (targeting speech designed to intimidate specific persons) rather than through general hate speech prohibitions. As social media platforms face government pressure to remove hate speech and as AI systems are increasingly asked to generate or filter content containing racial, religious, or gender-based hostility, R.A.V.'s framework governs the constitutional limits of what government can require or prohibit.