A RISING intolerance for bigotry in the past few years has
blanketed the country with new public laws and campus codes against
speech and action motivated by bias.
A case to be heard Dec. 4 before the Supreme Court could provide
a test for how far these codes can go in outlawing bias before they
trample on free-speech rights.
In the early morning hours of a June night in 1990, a group of
young white men went through the fence and into the front yard of
the only black family living in a working-class neighborhood of St.
There they planted a cross made of two legs of a broken chair,
wrapped in terry cloth and doused with paint thinner, and set it on
The family, Russ and Laura Jones and their five children, had
already had their tires slashed, a car window broken, and their
children called racial epithets in front of their house.
But the cross-burning was the strongest message yet, with a long
and clear history as a racist threat to "get out or else."
The police soon arrested a 17-year-old youth as a participant
and chief instigator of the crime.
Even his own attorney argues that he should be punished for
vandalism, trespassing, or the implicit threat of violence in his
act. But the city of St. Paul prosecuted him under one of the
nation's most sweeping hate-speech bans.
The 1982 city ordinance bars the placement of any symbol "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."
As written, the ordinance could ban burning a cross on one's own
yard because a neighbor resented it.
A trial judge dismissed the case before trying it, ruling that
the ordinance was too broad and conflicted with the constitutional
right to free speech.
The Minnesota Supreme Court reversed that dismissal, however. It
saved the ordinance by giving it a very narrow interpretation -
reading it to ban only "fighting words" intended and likely to
produce "imminent lawless action."
If the US Supreme Court accepts this narrow reading of the
ordinance by the state court, then its decision is unlikely to
define new areas of free-speech law - although it might clarify
what constitutes fighting words.
But if it makes a decision on the ordinance as it is written,
then it may shift the boundaries of what speech is protected under
the Constitution. …