Con Law for 1Ls: R.A.V. v. City of St. Paul Explained

If Texas v. Johnson teaches that the government cannot punish offensive symbolic political speech, R.A.V. v. City of St. Paul teaches a related but more technical First Amendment rule:

Even within categories of unprotected speech, the government generally cannot discriminate based on viewpoint or selectively punish only certain ideas.

That is why R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) is one of the most important First Amendment cases every 1L should know. It involves a cross burning, a hate-speech ordinance, and the constitutional limits on content-based regulation.

This post is part of a Con Law for 1Ls series, so the goal is to make the case clear enough for class, cold calls, outlines, and exams.

The One-Sentence Takeaway

R.A.V. v. City of St. Paul held that even if speech falls within an unprotected category like fighting words, the government generally may not selectively prohibit only those fighting words that express disfavored viewpoints, such as messages based on race, religion, or gender.

That is the short version to remember.

Why Your Professor Cares About R.A.V.

Your professor is not assigning R.A.V. because the conduct was sympathetic. It was not.

The case involved a burning cross placed on the lawn of a Black family. But the Court did not decide the case by saying cross burning is always protected. Instead, the Court focused on the way St. Paul drafted its ordinance.

The key question was:

Can the government regulate only some fighting words based on the subject or viewpoint they express?

The Court said no, at least where the regulation discriminates among ideas within an unprotected category.

That is why R.A.V. is often difficult but important.

The Facts You Actually Need to Know

Here is the short 1L version.

Several teenagers allegedly burned a cross inside the fenced yard of a Black family in St. Paul, Minnesota.

One of the teenagers, identified as R.A.V. because he was a juvenile, was charged under St. Paul’s Bias-Motivated Crime Ordinance.

The ordinance made it a crime to place on public or private property a symbol, object, appellation, characterization, or graffiti — including a burning cross or Nazi swastika — if the person knew or had reason to know it would arouse anger, alarm, or resentment in others on the basis of:

• race,

• color,

• creed,

• religion,

• or gender.

The Minnesota Supreme Court narrowed the ordinance by interpreting it to apply only to fighting words.

Even with that narrowing interpretation, the U.S. Supreme Court struck it down.

The Big Question

The main issue was:

Can a city prohibit only those fighting words that insult or provoke violence based on race, religion, or gender?

The Supreme Court said no.

The Holding

Here is the clean holding:

The St. Paul ordinance was unconstitutional because it selectively prohibited speech based on particular disfavored subjects and viewpoints, even though the ordinance had been limited to fighting words. See R.A.V. v. City of St. Paul.

That is the core doctrine.

What Are Fighting Words?

To understand R.A.V., you need to know the fighting words doctrine.

In Chaplinsky v. New Hampshire, the Court described fighting words as words that by their very utterance tend to incite an immediate breach of the peace.

Fighting words are one of the traditional categories of speech that receive little or no First Amendment protection.

But R.A.V. adds an important point:

Just because a category of speech is unprotected does not mean the government has unlimited power to regulate it selectively.

That is the big move.

The Key Concept: Discrimination Within an Unprotected Category

This is the part that trips up many 1Ls.

You might think:

If fighting words are unprotected, the government can ban whichever fighting words it wants.

R.A.V. says not exactly.

The government can regulate an unprotected category, but it usually cannot pick and choose within that category based on hostility to certain ideas or viewpoints.

For example, the government cannot say:

• racist fighting words are illegal,

• but anti-religious or anti-political fighting words are allowed,

if the selection reflects viewpoint discrimination or content-based favoritism.

That is why the ordinance failed.

Why the St. Paul Ordinance Failed

The ordinance did not ban all fighting words.

It banned only fighting words that aroused anger or resentment based on certain listed categories, such as race, religion, or gender.

That meant some abusive speech was covered and some was not.

For example:

• A racist insult might be punishable.

• A political insult or insult based on union membership might not be.

• A speaker could be punished for some hateful messages, but not others.

The Court saw that as impermissible content and viewpoint discrimination.

See R.A.V..

The Key Rule in 1L Terms

Here is the exam-friendly rule statement:

The government generally may not make content-based or viewpoint-based distinctions within a category of unprotected speech, such as fighting words, unless the distinction is tied to the reason the category is unprotected.

That is the rule most 1Ls should have in their outline.

The “Reason the Category Is Unprotected” Exception

This is an important nuance.

R.A.V. does not mean the government can never draw distinctions within unprotected categories.

The Court gave examples where distinctions may be permissible.

For example:

• A law may prohibit only the most obscene obscenity.

• A law may prohibit threats against the President.

• A law may target certain secondary effects or special harms tied to the reason the speech is unprotected.

The problem in R.A.V. was that St. Paul selected speech based on subject matter and viewpoint, not merely because those particular fighting words were especially likely to cause the harms that make fighting words regulable.

Was Cross Burning Protected?

This is a common 1L trap.

R.A.V. does not hold that cross burning is always protected.

The Court struck down the particular St. Paul ordinance because of how it was written.

A state may punish cross burning when it constitutes:

• a true threat,

• intimidation,

• trespass,

• arson,

• vandalism,

• or another constitutionally regulable act.

That issue comes up later in Virginia v. Black. See Virginia v. Black, 538 U.S. 343 (2003).

So do not say R.A.V. protects all cross burning.

It does not.

Hate Speech and the First Amendment

R.A.V. is often described as a hate-speech case, but the doctrine is more specific.

The U.S. Constitution does not have a general “hate speech” exception to the First Amendment.

Speech expressing hateful ideas may still be protected unless it falls into a recognized unprotected category like:

• true threats,

• incitement,

• fighting words,

• harassment in certain contexts,

• or defamation.

But even when speech falls into an unprotected category, R.A.V. says the government

must be careful not to discriminate based on viewpoint.

That is why the case matters so much.

The Concurring Opinions

Several Justices agreed with the result but not all of Justice Scalia’s reasoning.

Some thought the ordinance was overbroad or vague. Others worried the majority’s rule would unnecessarily restrict anti-discrimination laws.

For 1L purposes, the most important thing is the majority rule: the government cannot selectively regulate speech within unprotected categories in a way that discriminates based on viewpoint.

The Cold-Call Version

If your professor asks, “What is R.A.V. v. City of St. Paul about?” you can say:

R.A.V. held that St. Paul’s bias-motivated ordinance was unconstitutional because it prohibited only certain fighting words based on race, religion, or gender, making impermissible content and viewpoint distinctions within an otherwise unprotected category of speech.

That is a strong cold-call answer.

Why R.A.V. Matters

R.A.V. matters because it shows that First Amendment analysis does not end once speech is labeled “unprotected.”

Even in areas like fighting words, the government cannot use speech regulation as a tool for ideological favoritism.

The case reflects a core First Amendment idea:

The government generally cannot take sides in the marketplace of ideas.

That is true even when the speech is ugly, hateful, or deeply offensive.

Common 1L Mistakes About R.A.V.

Mistake #1: Saying the case protects cross burning

Too broad. It invalidates a particular ordinance. Cross burning can be punished in other circumstances, especially if it is a true threat.

Mistake #2: Thinking unprotected speech has no First Amendment rules

Wrong. R.A.V. is about limits on regulation within unprotected categories.

Mistake #3: Confusing content discrimination and viewpoint discrimination

The ordinance was content-based because it targeted certain topics. It also raised viewpoint-discrimination concerns because it punished particular hateful messages while leaving others untouched.

Mistake #4: Thinking hate speech is automatically unprotected

There is no general hate-speech exception in First Amendment doctrine.

Mistake #5: Forgetting the Minnesota court narrowed the law to fighting words

Even with that narrowing, the ordinance still failed.

Quick IRAC for Your Outline

Issue

Can St. Paul criminalize only those fighting words that arouse anger or resentment based on race, color, creed, religion, or gender?

Rule

The government generally may not make content-based or viewpoint-based distinctions within an unprotected category of speech, such as fighting words, unless the distinction is tied to the reason the category is unprotected. See R.A.V..

Application

St. Paul’s ordinance did not prohibit all fighting words. It prohibited only fighting words based on certain listed characteristics. That selective targeting favored some ideas and disfavored others within the fighting-words category.

Conclusion

The ordinance violated the First Amendment.

What to Put in Your Case Brief

If you are briefing R.A.V. for class, include:

• Facts: juvenile charged after allegedly burning cross on Black family’s lawn

• Issue: can city ban only certain bias-based fighting words?

• Holding: no

• Reasoning: ordinance made impermissible content/viewpoint distinctions within fighting words

• Key doctrine: no viewpoint discrimination within unprotected speech categories

• Important distinction: cross burning may still be punished as intimidation or true threat under properly drafted laws

That is enough for most 1L purposes.

Why R.A.V. Still Matters Today

R.A.V. remains important in cases involving:

• hate speech,

• true threats,

• cross burning,

• fighting words,

• discriminatory harassment rules,

• protest regulation,

• and content-based speech laws.

Modern cases still cite R.A.V. when explaining that even categories of lesser-protected or unprotected speech cannot always be regulated selectively. See, for example, Virginia v. Black, which distinguishes a cross-burning statute aimed at intimidation from the ordinance struck down in R.A.V.

How R.A.V. Fits with the Earlier First Amendment Cases

Here is the First Amendment sequence so far:

• Brandenburg: advocacy is protected unless it incites imminent lawless action.

• Texas v. Johnson: offensive symbolic political protest is protected.

• R.A.V.: even within unprotected categories like fighting words, the government generally cannot discriminate based on viewpoint.

• Virginia v. Black: cross burning with intent to intimidate can be punished as a true threat.

Together, these cases show that the First Amendment does not simply ask whether speech is offensive. It asks what category the speech falls into and whether the government is regulating it in a constitutionally permissible way.

Final Takeaway for 1Ls

If you remember nothing else, remember this:

R.A.V. v. City of St. Paul says the government generally cannot selectively punish only disfavored ideas within an unprotected category of speech.

That is why the case matters.

The cross burning was the factual backdrop.The real subject was viewpoint discrimination within fighting words.

And that is why R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) is one of the core Con Law cases every 1L should know.