The Case of Sheikh Ali Salman [Bahrain]
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The U.S. Supreme Court held that an ordinance prohibiting “fighting words” that were racially motivated was unconstitutional under the First Amendment. The ruling overturned the plaintiff’s conviction by the Minnesota Supreme Court for burning a cross on the lawn of an African American family. The Court stated that restricting specific categories of speech, namely obscenity, defamation and fighting words, was allowed under the constitution but not if that restriction is based on content or threatens the censorship of ideas.
The Petitioner assembled a cross made of broken chair legs which he burned in the fenced yard of an African American family who lived nearby. The city of St. Paul charged the Petitioner under the St. Paul Bias-Motivated Crime Ordinance which provided, “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, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”
The Petitioner applied to dismiss this count of the charge arguing that the statute was over-broad and content-based, making it facially invalid. The trial court granted the motion to dismiss, but the Supreme Court of Minnesota reversed. The Supreme Court of Minnesota found that the ordinance was aimed only at “fighting words” which are unprotected by the First Amendment. The petitioner appealed.
Justice Scalia delivered the opinion of the Court holding that the statute was facially unconstitutional.
The Court noted that it was bound by the Minnesota Supreme Court’s interpretation of the statute that the ordinance reached only “fighting words,” which are not protected under the First Amendment. However, it went on to hold that the ordinance was “facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.” . Specifically, the Court found that because the ordinance was aimed at words that provoke violence “on the basis of race, color, creed, religion or gender,” it was a content-based, discriminatory restriction and therefore impermissible under the First Amendment. .
Justice Scalia said that First Amendment jurisprudence has long held that nonverbal activity cannot be banned on the basis of the idea it expresses, for example, the burning of a flag could be punishable under an ordinance prohibiting fires but not under an ordinance prohibiting the burning of flags because of the message of dishonor it conveys. Although the Minnesota ordinance was aimed only at fighting words (unprotected speech), it only criminalized those words which were racially motivated and was therefore facially invalid. The Court found that the city could just as easily have enacted a statute prohibiting this type of unprotected speech, but not limiting the speech to that only aimed at certain individuals.
Justice White concurred (joined by Justice Blackmun, Justice O’Connor, and Justice Stevens in part):
Justice White concurred to emphasize that he agreed with the Court’s outcome in this case, but with none of its analysis. He said he would have decided the issue on overbreadth grounds, adding that the “Court has disregarded two established principles of First Amendment law without providing a coherent replacement theory.”
Justice Blackmun concurred:
Justice Blackmun wrote separately to note that by forbidding categorization of prohibited speech, as the Court has done here, the Court weakens First Amendment protections in other instances.
Justice Stevens (joined by Justice White and Blackmun in part) concurred in the judgment:
Justice Stevens wrote separately to emphasize that although he agreed with the Court’s conclusion, he found the reasoning used to reach the decision was incorrect. Specifically, the concurrence argued that the majority is essentially stating that a government is only able to proscribe all speech or no speech at all to come within the confines of the First Amendment (finding that content-based restrictions are presumptively invalid). He said First Amendment jurisprudence is not that inflexible.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by striking down a statute that restricts speech on the basis of content. However, the concurring opinions raise some interesting arguments. Specifically, Justice Blackman argues that by forbidding categorization of speech, as the Court has done here, the Court is weakening First Amendment protections in other areas.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Supreme Court, this decision binds all lower courts.
The decision is particularly significant because it created a standard in which virtually all hate speech is protected.
Whilst accepting that ‘fighting words’ were unprotected by the First Amendment, following the Supreme Court case of Chaplinsky v. New Hampshire (1942), the Court held that the regulation of fighting words by subject matter was unconstitutional and such speech was protected by the First Amendment.
Let us know if you notice errors or if the case analysis needs revision.