The Champion (monthly magazine of the National Association of Criminal Defense Lawyers)

November 1995, Vol. 19, page 44. 

DEPARTMENT: BOOK REVIEW

Reviewed by Jonathan L. Katz

Beyond the Burning Cross: The First Amendment and the Landmark R.A.V. Case

Edward J. Cleary, Random House (1994)

No matter how far the First Amendment has come, lawmakers continue to restrain it with legislation against offensive expression. This year alone, Congress has worked on a flag burning amendment, censorship of the Internet, and a television ratings system. No less troubling is hate crimes legislation, which targets the evils of discrimination and bigotry, but often at the First Amendment's expense.

Edward Cleary's Beyond the Burning Cross chronicles the events behind the Supreme Court's 1992 landmark R.A.V. v. St. Paul hate crime case (505 U.S. 377 (1992)). The book recounts Cleary's battle for the defendant R.A.V., the ironic alignment of numerous liberal groups against R.A.V., and the unusual Supreme Court result that found conservative justices supporting the First Amendment more firmly than liberals.

St. Paul used a city hate crime ordinance against R.A.V. for allegedly burning a cross on the lawn of an African-American family. The R.A.V. defense exclusively challenged the broadly worded ordinance, which prohibited the display on public or private property of "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." Despite frequent media and public misconceptions, the defense was not claiming a wholesale right to burn crosses, and repeatedly emphasized that St. Paul had the option to prosecute R.A.V. for arson, property damage, or terroristic threats.

R.A.V. was an indigent juvenile defendant. Ed Cleary, an NACDL member, took the case on a contract with the county public defender. After the trial court agreed that the St. Paul ordinance was unconstitutional, the city ultimately obtained an expedited appeal to the Minnesota Supreme Court. Although the public defender had no funds for the appeal, Cleary stayed with the case pro bono, and added co-counsel Michael Cromett.

Cleary was obsessed with this case, and for good reason. The St. Paul ordinance limited much more than just cross burning. It essentially prohibited a vast universe of expression on the basis of its content and its effect on others. Alan Dershowitz observed that a similar law in Leeds, England had been used "to ban the Star of David as a 'racist symbol' under the U.N. declaration equating Zionism with racism."

The Minnesota Supreme Court unanimously upheld the St. Paul ordinance after limiting its reach to fighting words, which the Supreme Court had previously removed from First Amendment protection. Cleary then successfully petitioned in forma pauperis for certiorari in the U.S. Supreme Court.

Although the American Civil Liberties Union (ACLU) and a few other parties aligned behind R.A.V., numerous liberal groups filed amicus briefs supporting St. Paul. Those groups included the National Association for the Advancement of Colored People (NAACP), People for the American Way, the Center for Constitutional Rights, and the National Lawyers Guild. These groups essentially were willing to restrain the First Amendment in order to enable hate crime prosecutions. The NAACP's brief against R.A.V. went as far as recommending that the Supreme Court reassess the overbreadth doctrine that had been previously used to invalidate limits on free expression. Cleary even learned that one opposing amicus, the Anti-Defamation League, did not even favor the St. Paul ordinance, but apparently filed against R.A.V. to preserve laws providing for enhanced sentences on racially motivated crimes.

The voting outcome in the Supreme Court was no less ironic than the amicus alignment. Although the Supreme Court result was unanimous, the Court's two most liberal members, Justices Blackmun and Stevens -- joined by Justices O'Connor and White -- insisted against going any further than holding that the ordinance was unconstitutionally overbroad. Nevertheless, the three most conservative Justices (Scalia, Rehnquist and Thomas), joined by Justices Souter and Kennedy, went much further than that. Justice Scalia's majority opinion held that laws against otherwise unprotected speech -- including fighting words, obscenity, and libel -- generally cannot discriminate on the basis of the speech's content. Scalia said the St. Paul ordinance "goes beyond mere content discrimination, to actual viewpoint discrimination."

Although R.A.V. remains authoritative, the Supreme Court underlined that case's limits in Wisconsin v. Mitchell, 508 U.S. 476 (1993). Mitchell assaulted a young boy on the basis of his race, and was sentenced to seven years under Wisconsin's penalty enhancement statute, as opposed to the two-year unenhanced maximum. The Supreme Court permitted the enhanced sentence, and said that nothing in R.A.V. "compels a different result."

Beyond the Burning Cross is a reminder that despicable speech must be protected if the First Amendment is to survive. Committed lawyers like Edward J. Cleary are vital to protecting that principle.

NOTE: Since 1995, Jon Katz has been a member of the Champion Advisory Board. When this article was written, Jon was a trial lawyer with the Maryland Public Defender's Office.