Jewish groups have taken opposing sides on whether a St. Paul, Minn, hate crimes ordinance banning cross-burnings and Nazi swastikas violates the constitutional protection of freedom of speech.
Both the Anti-Defamation League and the American Jewish congress have filed friend-of-the -court briefs in the case, RAV vs. St. Paul, which came before the U.S. Supreme Court on Wednesday for oral argument.
The ADL supports a decision by the Minnesota state Supreme Court that St. Paul prosecutors interpreted the law narrowly enough in a cross-burning case that it did not violate the First Amendment.
But the AJCongress argues it is the narrowness and vagueness of the law that leaves the greatest potential for restricting speech.
A third major Jewish defense agency, the American Jewish Committee, has not entered the case because its national law committee was “sharply split,” according to Samuel Rabinove, the agency’s legal director.
“We considered it very seriously,” he said.
The RAV in the case stands for Robert A. Viktora, a 17-year-old high school dropout, who was charged the hate crimes ordinance with burning a cross in the yard of a black couple, Russ and Laura Jones, on June 21, 1990.
Viktora has also been charged with assault. His initials were used because he was a minor at the time.
The St. Paul ordinance states that “whoever places 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, religion or gender, commits disorderly conduct and shall be guilty of a misdemeanor.”
PROBLEM WITH LAW’S VAGUENESS
During oral argument Wednesday, the Supreme Court justices’ questioning centered on whether a law could be crafted to make something like cross-burning illegal in front of a black family’s home, but not if the same thing were done elsewhere.
Edward Cleary, the lawyer who represented Viktora, warned that “this opens a hole in the First Amendment.” It might allow laws to be enacted that ban other symbols, such as the Star of David, he said.
But Thomas Foley, the St. Paul County attorney, maintained that the First Amendment “was never intended to protect any individual who burns a cross at an African-American home.”
In an interview, ADL’s legal director, Steven Freeman, said the Minnesota Supreme Court accepted his group’s position that the law should be seen as applying only to “fighting words” that could be seen as inciting to violence.
But the law’s vagueness is a problem, said Marc Stern, co-director of the AJCongress Law and Social Action Commission. “A statute regulating speech has to be precisely drawn,” he said.
The law now allows a prosecutor to decide what speech is offensive and this leaves it open to abuse, Stern said.
But more importantly, the St. Paul ordinance makes illegal not only “speech which you know would be offensive, but speech which you should have known to be offensive,” Stern said.
The type of hate crimes law that would be proper, Stern said, is one like the model legislation offered by the ADL, which many state legislatures have adopted.
Freeman conceded that the ADL would not have drafted legislation the way St. Paul did. He explained that rather than outlawing specific behavior, the ADL model law provides harsher penalties for existing crimes, such as trespassing and assault, if bias can be shown as the motivating factor.
A REVIEW OF ‘POLITICAL CORRECTNESS’?
Rabinove of the AJCommittee said his organization also supports “reasonable, realistic hate crime legislation.” But the St. Paul ordinance, he said, was “much too broadly and carelessly drawn. It went too far.”
Freeman, though, argued that “the St. Paul City Council was trying to address a very serious problem, both practically and symbolically.”
Practically, the ordinance gave the police and prosecutors another tool to go after people who commit hate crimes, he said. Symbolically, St. Paul was sending “a message that our society regards these crimes as particularly heinous because of their polarizing impact on communities and cities.”
The victim in such crimes is not just the person who is attacked, Freeman said. Everyone of the same race, religion, ethnic heritage or sex also feels threatened.
But Stern of AJCongress and Rabinove of AJCommittee stressed that there are other ways to prosecute those who commit such crimes. Viktora, for instance, is also charged with assault.
A second defendant, Arthur Miller 3d, pleaded guilty and was sentenced to 30 days in jail.
While it is difficult to speculate how the U.S. Supreme Court will rule, the court has often deferred to rulings by state supreme courts.
But the high court could use the case to review the whole issue of “political correctness” on university campuses, in which certain speech has been banned, including that considered offensive to minority groups or women.
The court could also consider the question of symbolic speech. Liberal Justices William Brennan and Thurgood Marshall, who made up part of the 4-5 majority that ruled that flag burning is a form of constitutionally protected free speech, have now been replaced on the court by conservatives David Souter and Clarence Thomas.
Thomas was the only member of the court who did not ask questions Wednesday.
The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
