Tuesday, May 18, 2010


Curious about President Obama’s latest choice for the Supreme Court, I looked up Elena Kagan’s 1996 article in the University of Chicago Law Review, entitled, “Private Speech, Public Purpose.”


The lady sure knows how to make things complicated. Makes me glad I’m no longer a sitting appellate court judge who has to untangled her words and make some sense out of what she is trying to say.

The gist of her law review article seems to be that if she had been on the Supreme Court at the time R.A.V. v City of Saint Paul was decided, she would have voted to uphold Saint Paul’s “hate speech” ordinance.

Here’s what the ordinance said:

"It is a misdemeanor to place on public or private property a symbol... 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."

In the R.A.V. case, the defendants were teen age boys who burned a cross on the property of a black occupant.

The trial judge threw the case out, the Supreme Court of Minnesota reinstated it, and the Supreme Court of the United States threw it out again by a vote of 9 – 0.

It was the opinion of the learned justices that the ordinance violated the First Amendment to the Constitution of the United States. In other words, the Minnesota boys were merely exercising their constitutional right of free speech.

Now I’m sure it would come as a shock to most Americans to be told that the City of Saint Paul has no power to ban the burning of crosses on other people’s front lawns.

But in the esoteric world of constitutional law, the issue is not always what we expect.

In the R.A.V. case, the Court said, in effect, you can outlaw fighting words, but not just those based on race, color, creed, religion or gender.

So to hang Minnesota Twins manager Ron Gardenhire in effigy on his front lawn would not violate the ordinance, unless, of course the people doing the hanging were black and the effigy had the word “whitey” on it.

For my own part, I have never much understood the legal cases that deal with actions as speech. I suppose the old axiom, “actions speak louder than words” is the reason behind that line of judicial opinions.

Still, it seems to me that there is a difference between doing things and saying things, and the First Amendment has to do with saying, not doing.

The exception to the First Amendment for so called “fighting words” stems from the idea that some speech is more like ‘doing’ than ‘saying.’ In other words, if the law can punish you for assaulting another by swinging a baseball bat at him, it can also punish you for picking a fight in other ways.

But the exception for “fighting words” is limited to those situations where the people are nose to nose, and the fight is imminent. You can’t be guilty of using “fighting words” when you write someone a nasty letter.

Frankly, I think the problem in the R.A.V. case was simply that the city council was trying to be politically correct. I cannot conceive of any court in the land throwing out an ordinance which would make it a misdemeanor to trespass upon the land of another for the purpose of disturbing the peace.

That would be a “doing” ordinance, not a “saying” ordinance.

Ms. Kagan builds a long winded theory about governmental motive which sounds to me like she would approve of outlawing speech which is not politically correct.

I sure hope she doesn’t convince four other justices to agree with that idea.


  1. I disagree for speech as terrorism, which is why I supported hate crimes legislation. If the speech is meant to be a message to a class of persons rather than an individual and the purpose is to instill fear in that class, than such speech (or action) should not be protected by the First Amendment.

    We should not use political correctness as an excuse to not fight terrorism or the fear of the same. Targeting a mosque for investigation is perfectly OK if the mullah preaches Jihad, however burning a cross on their lawn is not - at least in a society which seeks to be civilized.

  2. I don't see Kagan as the
    "most qualified candidate" for
    the US Supreme Court.

    I also see a dangerous and troubling trend of picking most of our Justices from 1 or 2 law schools(Harvard and Yale).

    The Warren Court featured Justices from various regions and laws schools across the country.
    They seemed to get most of their decisions right.

    There is too much provincialism
    and "group think" on the Supreme Court.
    It is not representative of all
    the regions and great law schools
    in this country.

    You cannot tell me that both Parties cannot locate brilliant legal minds outside of NY,Mass & DC.

    I sent an email to David Axelrod
    expressing these thoughts in detail.

    Mark Palid
    San Diego, CA.

  3. As long as nobody from Liberty Law School is on the court, our liberties are safe.

  4. Not necessarily.

    Next thing the Roberts Court
    might do is give corporations
    the full right to vote
    and make that multiple votes
    to count for their shareholders
    and economic clout.

    No thanks!

  5. That was actually the system before the Australian Ballot, except it was the employees rather than the shareholders who voted with the bosses.