help teaching RAV v City of St Paul

Thu Mar 9 13:07:44 PST 2006

	Fair enough, but that's an objection that goes not to the core
RAV principle -- content discrimination even within a proscribed
subcategory is presumptively unconstitutional -- but to the RAV
exception for speech that's likely to cause a particular grave version
of the harm (see, e.g., Virginia v. Black).

	There is indeed a plausible argument that identity-group-based
fighting words are especially likely to cause fights (and especially
violent fights at that).  Scalia's response is that this argument
doesn't count because the premise of fighting words law is that such
words can be banned for reasons unrelated to the ideas they express;
identity-group-based fighting words, Scalia suggests, are likely to be
offensive precisely because of the ideas they express.  I'm not sure how
persuasive Scalia is here.  But again, one can say that he's wrong on
the result, but still right on the underlying RAV holding that the
"government is [not] allowed to fix a large problem one piece at a time"
when it comes to speech, even punishable speech.

	Scalia's blue-eyed model example may or may not be good, but
it's pretty clear to me that Scalia didn't see it as involving an
attempt to suppress obscenity that conveys certain ideas about race.
Only whites commonly have blue eyes, but many whites also have eyes of
other colors; and it's hard to say that porn with blue-eyed actors is
especially likely to take any view at all on race as opposed to porn
with brown-eyed actors.  And unless the ordinance departs very far from
traditional discrimination law principles, "arouses resentment in others
on the basis of . . . religion" likely means "arouses resement in others
on the basis of [their] religion," not just "on the basis of topics
related to religion."  Thus, "anti-Catholic bigots are misbegotten"
wouldn't arouse anger in the targets on the basis of their religion.

	Eugene

> because "#### anti-catholic bigots" is ok, but not "#### 
> Catholic bigots."  I, however, think the quoted ordinance 
> bans both these statements as " arousing anger etc one the 
> basis of ... creed, religion...." 

> -----Original Message-----
> From: Malla Pollack [mailto:mpollack at uidaho.edu] 
> Sent: Thursday, March 09, 2006 12:32 PM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: help teaching RAV v City of St Paul
> 
> 
> My thanks to Eugene for trying to help, but I think the 
> analogies Eugene and Scalia make are not close enough to the 
> facts.  For example, a town has an ordinance banning throwing 
> garbage onto the street with a penalty of only $5. It then 
> passes two ordinances setting higher fines (i) for discarding 
> shredded flags by throwing them on the street; (ii) for 
> discarding glass bottles by throwing them on the street.  I 
> agree that the higher fine in (i) is illegitimate -- this is 
> like Scalia's example about an anti-government subcategory.  
> But I see no problem with (ii) because broken bottles cut car 
> tires.  IMHO the statute at issue in RAV was like (ii).  Of 
> course, both are underinclusive because other things cut 
> tires or are likely to start fist fights -- but the need to 
> make the ordinance clear enough for due process (and 
> vagueness) challenges is sufficient reason not to reword them 
> as "anything very likely to cut tires" or "anything very 
> likely to start a brawl." 
> 
> 	Making my confusion worse is that I find Scalia's 
> counter examples inapt.  He sees no content problem in a 
> prohibition only banning obscenity using blue eyed models -- 
> but that is clearly racist-- blue eyes come with white skin 
> (or tinted contact lenses, which I assume Scalia is not
> contemplating-- besides using blue tinted contact lenses 
> seems to me to invoke a racially biased concept of beauty).  
> Scalia also says that the ordinance is view point biased 
> because "#### anti-catholic bigots" is ok, but not "#### 
> Catholic bigots."  I, however, think the quoted ordinance 
> bans both these statements as " arousing anger etc one the 
> basis of ... creed, religion...." 
> 
> 
> Malla Pollack
> Professor, American Justice School of Law
> Visiting Univ. of Idaho, College of Law
> mpollack at uidaho.edu
> 208-885-2017
>  
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Thursday, March 09, 2006 12:04 PM
> To: conlawprof at lists.ucla.edu
> Subject: RE: help teaching RAV v City of St Paul
> 
> R.A.V. is hard to teach in various ways; among other things, 
> the exceptions are pretty hard to understand and apply.  But 
> the underlying logic isn't that odd, given the Court's 
> general underinclusiveness / content discrimination doctrine.
> 
> Consider Frisby v. Schultz, which holds that residential 
> picketing may be banned, consistently with the First 
> Amendment.  Does it follow that the government may therefore 
> ban content-based subsets of residential picketing?  
> Generally no, see Carey v. Brown.
> 
> Likewise, consider Gertz and other cases, which says that 
> false statements of fact lack constitutional value, and that 
> knowingly false statements may generally be banned.  (NYT v. 
> Sullivan suggests that some category even of knowing 
> falsehoods is protected, under the seditious libel rubric, 
> but that seems like a pretty narrow exception.)  Does it 
> follow that the government may ban knowingly false Holocaust 
> denial? Maybe, but it's not a trivial matter -- many students 
> would, I think, quickly react that one problem with this is 
> that the government is choosing to punishing a particular 
> historical claim.  Again, the underinclusiveness may pose 
> some of the same problems that it does elsewhere; it may cast 
> doubt on the government's motives, suggest that the 
> government interest isn't that compelling, or suppress speech 
> that has *some* value though that value would normally be not 
> enough to protect it (that was Scalia's point in R.A.V.).
> 
> Content-based and especially seemingly viewpoint-based 
> restrictions on fighting words pose a similar problem.  If I 
> had to teach the case (I usually skip it in the 3-unit class 
> I've been teaching recently), I'd ask students about these 
> three situations together.
> 
> Some wrote a good piece about this, but I forget who -- maybe 
> Steven Gey?
> 
> Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Malla Pollack
> Sent: Thursday, March 09, 2006 11:24 AM
> To: conlawprof at lists.ucla.edu
> Subject: help teaching RAV v City of St Paul
> 
> 
> RAV has always bothered me because it seems to conflict with 
> the concept that government is allowed to fix a large problem 
> one piece at a time. Merely saying that speech is different 
> does not convince me because the Court seems to accept that 
> the speech in question has no First Amendment protection.  
> RAV could be an anti-affirmative action case, but the opinion 
> does not read that way (at least to me). Can anyone point me 
> to an article with a good discussion of this issue? (I am 
> shamelessly asking for help so that I do not have to go 
> through the hay stack to find the needle.)  Off list would be 
> fine. Thanks, 
> 
> Malla Pollack
> Professor, American Justice School of Law
> Visiting Univ. of Idaho, College of Law
> mpollack at uidaho.edu
> 208-885-2017
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