Of Burning Crosses and Chilled Expression: Minnesota and the Eighth Circuit Moderate First Amendment Mandates in "Hate Speech" Prosecutions: In re R.A.V. and United States v. Lee

• NCJ Number: 138545
• Journal: Hamline Law Review Volume: 15 Issue: 1 Dated: (Fall 1991) Pages: 167-193
• Author(s): D W Homstad
• Date Published: 1992
• Length: 27 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This analysis of the decisions of the Supreme Court of Minnesota and the Eighth Circuit Court of Appeals in cases involving cross burning concludes that instead of upholding the Minnesota law on hate speech, the courts should have held that cross burning that is unaccompanied by an actual, recognizable threat of imminent violence is a symbolic action that deserves constitutional protection.

Abstract

In the case of In re R.A.V., a juvenile defendant was prosecuted in State court for burning a cross within the fenced yard of a black family's home. In Lee, the defendant was prosecuted in Federal court for burning a cross on a hill some 386 feet from a racially mixed apartment complex. The courts were asked to determine whether the ordinance and law, respectively, under which the defendants were prosecuted, violated First Amendment guarantees of freedom of speech. The courts sustained the codes. These decisions will hinder free speech, because we must tolerate even undesirable expression when other means are available to protect the innocent and punish those guilty of actual criminal conduct. Footnotes