Free Speech by the Light of a Burning Cross

For scholars of the First Amendment this case is an excellent example of the dilemmas posed by many of the doctrines created by the Court. While Justice Scalia proposes an elaborate and novel understanding of the limits of free speech regulation, Justice White responds with an assertion that Scalia's reasoning is "transparently wrong," and that his opinion is a "radical revision of First Amendment law." According to Justice Stevens, the majority opinion is no more than "an adventure in a doctrinal wonderland." Part II of this paper examines the attacks made by Justices White and Stevens against the majority opinion. Part III.A demonstrates a critical weakness in the majority opinion, one that reveals a perverse use of precedent by Justice Scalia. Part III.B demonstrates another weakness of the majority opinion: How fighting words are apparently more deserving of government protection than commercial speech.

The fourth and fifth parts of the paper analyze the fundamental issues raised in the preceding discussion with a particular focus on the unpredictable standards used by Justice Scalia in free speech cases. The conclusion explains why the categorical approach to the First Amendment taken by the Supreme Court in R.A.V is untenable.