Introduction
In 1942, the Supreme Court sustained the conviction of a Jehovah's witness who addressed a police officer as a "God dammed racketeer" and "a damned facist" (Chaplinksy v. New Hampshire). The Court's opinion in the case stated that there was a category of face-to-face epithets, or "fighting words," that was wholly outside of the protection of the First Amendment: those words "which by their very utterance inflict injury" and which "are no essential part of any exposition of ideas."
In 1988, the Supreme Court considered a jury award of damages against Hustler Magazine for publishing a malicious and untrue story about Rev. Jerry Falwell. The piece, labeled in small print "a parody," stated that Falwell's first sexual encounter was with his mother while drunk in an outhouse. A Virginia jury concluded that the Hustler piece constituted "intentional infliction of emotional distress" and awarded $150,000 to Falwell. The Supreme Court unanimously reversed the award, saying that it saw no principled basis for distinguishing the Hustler article from hard-hitting political cartoons and other speech clearly worthy of First Amendment protection. The Court distinguished the sort of character assassination practiced by Hustler from the face-to-face insult threatening an immediate breach of the peace that was in issue in Chaplinsky.
American Booksellers involved a First Amendment challenge to an Indianapolis civil rights ordinance that made it a crime to distribute materials that depicted women as "sexual objects for domination, conquest, or use." The Sixth Circuit Court of Appeals invalidated the ordinance calling it "thought control." The Court ruled that the First Amendment gives government no power to establish "approved views" of various subgroups of the population.
R. A. V. considered a challenge to a St. Paul ordinance punishing the placement of certain symbols that were "likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender." Robert Victoria, a teenager, had been convicted of violating the ordinance after having been found to have burned a cross on the yard of a black family. The Court, in an an opinion by Justice Scalia, reversed R. A. V.'s conviction on the ground that the ordinance unconstitutionally criminalized some hurtful expression (specifically that aimed at racial and religious minorites) and not other hurtful expression (that aimed at other unprotected groups) based on the political preferences of legislators. Scalia makes clear that "fighting words" is not, as Chaplinsky had suggested, a category of speech that is wholly outside of First Amendment protection.
A year after R. A. V., the Supreme Court unanimously upheld, in Wisconsin v. Mitchell, a statute that imposed stiffer sentences for racially-motivated assaults than for other types of assaults. The Court reasoned that the statute did not violate the First Amendment because it was aimed primarily at regulating conduct, not speech.
In Virginia v Black (2003), the Court divided on the question of whether a state could prohibit cross burning carried out with the intent to intimidate. A majority of the Court concluded that, because cross-burning has a history as a "particularly virulent form of intimidation," Virginia could prohibit that form of expression while not prohibiting other types of intimidating expression. Thus, the majority found the cross-burning statute to fall within one of R. A. V.'s exceptions to the general rule that content-based prohibitions on speech violate the First Amendment. Nonetheless, the Court reversed the Virginia cross-burner's conviction because of a jury instruction that might produce convictions of cross-burners whose motivation was ideological--and not an attempt to arouse fear. Justice Thomas dissented, arguing that cross-burning is conduct, not expression, and therefore its suppression does not raise serious First Amendment issues.