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Jewish Groups Concerned by Ruling Striking Down Hate Crimes Ordinance

A Supreme Court ruling that unanimously struck down a city ban on cross-burning and other expressions of hate and racism, has provoked mixed reactions from Jewish defense groups close to the case.

The justices ruled Monday that the St. Paul, Minn., ordinance violates constitutional rights to free speech.

Their decision, which strikes at the heart of a free society’s dilemma over how much intolerance to tolerate, could affect similar laws enacted in recent years around the nation.

The Anti-Defamation League expressed its disappointment with the ruling, while the American Jewish Congress, which had protested the ordinance as too broad, welcomed it with some serious reservations. Both had filed friend-of-the-court briefs in the case.

The challenge to the city ordinance was mounted by a youth accused of burning a cross on the property of a black family in an all-white, St. Paul neighborhood in 1990.

Robert Viktora pleaded guilty to the misdemeanor but challenged as unconstitutional the hate crimes ordinance under which he also was charged.

The St. Paul ordinance bans the placement on public or private property of a symbol or object, such as a Nazi swastika or a burning cross, which the perpetrator “knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”

All but a handful of states have laws against hate crimes, but most increase existing penalties for crimes if the crimes are found to be motivated by bias or hate. Many of these follow a model advocated by the ADL.

But the St. Paul ordinance went further, in effect criminalizing the expression of hate.

RAMIFICATIONS ‘QUITE TROUBLING’

First struck down by a trial court, the statute was upheld by the Minnesota Supreme Court, which nonetheless criticized it for being too broad.

The state Supreme Court said the ordinance should be interpreted to apply only to expressions that could be characterized as either “fighting words” or “incitement to imminent lawless action,” both of which the U.S. Supreme Court has held are not protected by the Constitution’s First Amendment.

While conceding that the ordinance was flawed, the ADL had supported its narrow interpretation by St. Paul prosecutors to apply it to “fighting words.”

But AJCongress had protested the statute’s vagueness, charging it had to be precisely drawn to prevent abuse. Prosecutors, they argued, were allowed too much latitude to determine what speech is offensive.

AJCommittee had not taken a position because its ranks were deeply divided. But the agency’s legal director, Samuel Rabinove, said Monday that AJCommittee felt the ordinance was too broad.

“We strongly support freedom of speech and expression, and we believe hate crimes should be severely punished,” he said. “But there’s a line to be drawn,” and the St. Paul ordinance failed to draw that line properly, he said.

In writing for the court, Justice Antonin Scalia said the ordinance “has not singled out an especially offensive mode of expression.” Rather, “it has proscribed fighting words of whatever manner that communicate messages of racial, gender or religious intolerance.”

“Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas,” Scalia wrote.

Marc Stern, co-director of the AJCongress Commission on Law and Social Action, said Scalia’s reasoning was unnecessary and may harm efforts to punish racist violence more severely.

“The long-term ramifications of this case for free speech are quite troubling,” said Abraham Foxman, ADL’s national director. Scalia’s opinion, he said, “sweeps aside decades of First Amendment precedents and leaves the parameters of permissible speech unsettled.”

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