Plaintiffs' Response and Motion for Order Allowing Plaintiffs to Present Desegregation Plan at the Board's Expense

    No. 90-7675

In The

Supreme Court of the United States
October Term, 1991 

--------------- ♦---------------

R.A.V.,

v.
Petitioner,

CITY OF ST. PAUL, MINNESOTA,
Respondent.

-----------------♦ -----------------

On Writ Of Certiorari 
To The Minnesota Supreme Court

----------------- >-----------------

BRIEF AMICUS CURIAE OF THE 
NATIONAL BLACK WOMEN S HEALTH PROJECT 

IN SUPPORT OF RESPONDENT
----------------- * -----------------

C atharine A. M acK innon*
625 S. State Street
Ann Arbor, Michigan 48109-1215
(313) 747-4046
B urke M arshall 
127 Wall Street
New Haven, Connecticut 06520 
(203) 432-4953
Counsel for Amicus Curiae

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF AUTHORITIES.........................    ii

CONSENT OF PARTIES...................................................  1

INTEREST OF AM ICUS................................................... 1

SUMMARY OF ARGUMENT...........................................  3

ARGUMENT.......................................................................  5

I. THE CHALLENGED ORDINANCE PRO­
MOTES THE COMPELLING GOVERN­
ME NT AL  I N T E R E S T  IN EQUAL I T Y,  
OUTWEIGHING FIRST AMENDMENT CON­
CERNS ....................................     5

A. The ordinance prohibits discriminatory
practices which violate and undermine 
the equality rights of target groups........ 5

B. The practices of inequality prohibited by
§ 292.02 are not protected by the First 
Amendment.......................................................  13

II. AS APPLIED TO DISCRIMINATORY EXPRES­
SIVE CONDUCT, § 292.02 IS NOT SUBSTAN­
TIALLY OVERBROAD...........................................  24

CONCLUSION............................................................   27

TABLE OF CONTENTS
Page



C ases

Adderley v. State of Florida, 385 U.S. 39 (1966) . . . . .  26

Alexander v. Yale Univ., 459 F. Supp. 1 (D. Conn.
1977) aff'd., 631 F.2d 178 (2d Cir. 1980 )...................  11

Barnes v. Glen Theatre, Inc., I l l  S.Ct. 2456 (1991) .17, 18

Beauharnais v. Illinois, 343 U.S. 250 (1952).......... 24

Blow v. North Carolina, 379 U.S. 684 ( 1965) . . . . . . . . .  11

Bob Jones Univ. v. U.S., 461 U.S. 574 (1983)................ 25

Bohen v. East Chicago, 799 F.2d 1180 (7th Cir.
1986)............................................... ...................................... 10

Broadrick v. Oklahoma, 413 U.S. 601 (1973) . . .  4, 25, 26

Brockett v. Spokane Arcades, Inc., 472 U.S. 491
(1985).................. .................................................................  25

Brown v. Board of Education, 347 U.S. 483 (1954) .16, 22

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) . .3, 26

City Council of Los Angeles v. Taxpayers for Vin­
cent, 466 U.S. 789 (1984). .... ............................................... 22

Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978) cert.
denied, 439 U.S. 916 (1978)...............................  14, 19, 24

Cohen v. California, 403 U.S. 15 (1971)............ 14

Community for Creative Non-Violence v. Watt,
468 U.S. 288 (1984).............................................................  20

Continental Can v. State, 297 N.W,2d 241 (Minn.,
1980)......................................................................................  10

Davis v. Passman, 422 U.S. 228 (1971)..........................  11

ii

TABLE OF AUTHORITIES
Page



I l l

Ford v. Hollowell, 385 F. Supp. 1392 (N.D. Miss.
1 9 7 4 )............................................. ................................. .6,  7

Friend v. Leidinger, 446 F. Supp. 361 (E.D. Va.
1977) aff'd, 588 F.2d 61 (4th Cir. 1978)...................... 10

Gooding v. Wilson, 405 U.S. 518, 530 (1972)..........13, 26

Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241
(1964) ..........................      .9

Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1 9 8 2 )...........        10

Hicks v. Gates Rubber, 928 F.2d 966 (10th Cir.
1991)....................................................................   10

Hishon v. King & Spalding, 467 U.S. 69 (1983).......... 16

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) . . . .  11

Korematsu v. U.S., 323 U.S. 214 (1944).......................... 3

Lac du Flambeau Indians v. Stop Treaty Abuse-
Wis., 759 F. Supp. 1339 (W.D. Wis. 1991). .............. 17

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).................. 26

Loving v. Virginia, 388 U.S. 1 (1967).............................  23

Marshall v. Bramer, 110 F.R.D. 232 (W.D. Ky. 1985) . .6, 12

Matter of Welfare of R.A.V., 464 N.W. 2d 507
(Minn. 1991)...............................................................3, 5, 25

McMullen v. Carson, 754 F.2d 936 (11th Cir. 1985)........6

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) . . . .  10

Morgan v. Hertz Corp., 542 F. Supp. 123 (W.D.
Tenn., 1981) .................................................................

TABLE OF AUTHORITIES -  Continued
Page

11



I V

New York v. Ferber, 458 U.S. 747 (1982) 
............................................................. ........... 4, 14, 16, 25, 26

Norwood v. Harrison, 413 U.S. 455 (1973)....................  20

Palmer v. Thompson, 403 U.S. 217 (1971)..................... 11

Pierson v. Ray, 386 U.S. 547 (1967).................................  11

Pittsburgh Press Co. v. Pittsburgh Comm'n. on
Human Relations, 413 U.S. 376 (1973)............ 4, 14, 16

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . .  11

R. v. Keegstra, [1991] 2 W.W.R. 1 ................................... 24

Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th
Cir. 1986) .................................. ................................... 10

Richmond v. J.A. Croson, 488 U.S. 469 (1989)..............3
Roberts v. U.S. Jaycees, 468 U.S. 609 (1983)

......................................................................... 3, 16, 20, 23, 24
Robinson v. Jacksonville Shipyards, 760 F. Supp.

1486 (M.D. Fla. 1991).................................................10, 11

Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971), cert.
denied, 406 U.S. 957 (1972).............................................. 10

State v. Miller, 398 S.E.2d 547 (1990) ..............................  18

Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988)........6, 8

Street v. New York, 394 U.S. 576 (1969)........................ 14

Strauder v. West Virginia, 100 U.S. (10 Otto) 303
(1880)..................................... ........................ .................... H

Taylor v. Jones, 653 F.2d 1196 (8th Cir. 1981)........... 9

Texas v. Johnson, 491 U.S. 397 (1989)................ 18, 19, 20

U.S. v. Beaty, 288 F.2d 653 (6th Cir. 1961)..................... 9

TABLE OF AUTHORITIES -  Continued
Page



V

U.S. v. Bruce, 353 F.2d 474 (5th Cir. 1965)..................... 9

U.S. v. Eichman, 110 S.Ct. 2404 ( 1 9 9 0 ) . . . . . . . . . . . . . . .  19

U.S. v. Gresser, 935 F.2d 96 (6th Cir. 1991)....................8

U.S. v. Lee, 935 F.2d 952 (8th Cir. 1991). 7, 8, 11, 14, 24

U.S. v. Long, 935 F.2d 1207 (1991)............................ 8

U.S. v. O'Brien, 391 U.S. 367 (1968) .................... 4, 14, 18

U.S. v. Original Knights of the Ku Klux Klan, 250
F. Supp. 330 (E.D. La. 1965).......................................... 6

U.S. v. Orozco-Santilian, 903 F.2d 1262 (9th Cir.
1990)....................................................................................... 14

U.S. v. Salyer, 893 F.2d 113 (6th Cir. 1989 ).......... 6, 7, 8

U.S. v. Worthy, 915 F.2d 1514 (11th Cir. 1990).........6, 8

Vance v. Southern Bell, 863 F.2d 1503 (11th Cir.
1 9 8 9 )................................................................   9

Vaughn v. Pool Offshore Co., 683 F.2d 922 (5th Cir.
1982)...........................................................................................9

Vietnamese Fishermen's Ass'n. v. Knights of the
Ku Klux Klan, 543 F. Supp. 198 (1982)................. ... 17

Ward v. Rock Against Racism, 491 U.S. 781 (1989) . . . .  22

Watts v. United States, 394 U.S. 705 (1969) . ................  13

Watson v. Memphis, 373 U.S. 526 (1963).......................... 11

Weiss v. U.S., 595 F. Supp. 1052 (E.D. Va. 1984)..............  10

TABLE OF AUTHORITIES -  Continued
Page



VI

TABLE OF AUTHORITIES -  Continued
Page

Statutory and O fficial A uthorities

Increasing Violence Against Minorities: Hearing 
Before the Subcomm. on Crime of the House 
Comm, on the Judiciary, 96th Cong., 2d Sess.
(1980)....................................................... ................... . 12

St. Paul Minn.Leg.Code section 292.02 (1990). . . .  passim

Title 18 U.S.C. § 844(h)(1)........................................................ 8

Title 42 U.S.C. § 241.................................................................. 8

Title 42 U.S.C. § 1971(b)...........        8

Title 42 U.S.C. § 1985(3).....................8, 12

Title 42 U.S.C. § 2000b................... ......................................9

Title 42 U.S.C. § 3631(a).........................................................9

Title 42 U.S.C. § 3617 (1991) ................................................9

S cholarly A uthorities

Alexander, The Ku Klux Klan in the Southwest
(1965) .............................   5

Baker, Scope of the First Amendment Freedom of
Speech, 25 U.C.L.A. L. Rev. 964 (1978)..................... 21

Bell, And We Are Not Saved: The Elusive Quest
for Racial Justice (1987).............................. ............... .. 23

Bollinger, The Tolerant Society (1986)............................ 21

Emerson, The System of Freedom of Expression
(1970)....................................................................................  21

Goldberg, Hooded Empire (1981)...............  5

Katz, The Invisible Empire (1986)....................................... 6



vii

TABLE OF AUTHORITIES -  Continued
Page

Lawrence, If He Hollers Let Him Go: Regulating 
Racist Speech on Campus, 1990 Duke Law Jour­
nal 9 0 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  16

Major, Including Black Women, Midwest Acad­
emy Citizen Action 1991 Conference, Rebuild­
ing America (July 26-28, 1991) ...........................   2

Matsuda, Public Response to Racist Speech: Con­
sidering the Victim's Story, 87 Mich. L. Rev.
2320 (1989). ....................................   12

Meiklejohn, Free Speech and its Relation to Self-
Government (1948) ..................................   21

National Black Women's Health Project, Annual
Report (1989)...........................................................................1

Padgett, Racially-Motivated Violence and Intim­
idation: Inadequate State Enforcement and Fed­
eral Civil Rights Remedies, 75 J. Crim. L. 103 
(1984).....................     6

Wade, The Fiery Cross (1987) ................................. .5, 6



CONSENT OF PARTIES

Letters of petitioner and respondent consenting to 
the filing of this brief are being filed separately with it.

-----------------♦ -----------------

INTEREST OF AMICUS

The National  Black W omen's Health Project 
(NBWHP) is a national grassroots self-help and health 
advocacy organization that is committed to improving 
the overall health status of Black women. The core pro­
gram is based on the concept and practice of self-help 
and inclusion of all African American women, with a 
special focus on women living on low incomes. Health is 
not merely the absence of illness, but the active promo­
tion of emotional, mental and physical wellness of pre­
sent and future generations. Fundamental to this goal is 
the eradication of racism, sexism, and poverty in society, 
and with it the dramatically disproportionate health risks 
and lower life expectancy to which Black families and 
communities are subjected. National Black Women's 
Health Project, Annual Report 1, 2, 16 (1989).

The NBWHP began in 1981 as a pilot program of the 
National Women's Health Network, was incorporated as 
a non-profit organization in 1984, and has become inter­
nationally recognized as an advocacy organization by and 
for Black women. Since its inception, it has grown to 
more than 150 chapters in 26 states, with over 2,000 
members participating, including members in St. Paul. In 
1990, its National Public Policy and Education Office in 
Washington, D.C. was established to provide a national

1



2

forum to ensure that the information, data, and perspec­
tives of the NBWHP will have an impact on policy devel­
opment affecting the health and well-being of African 
American women.

NBWHP has observed that thousands of African 
American women experience some form of continuing 
social and psychological stress due to the combined 
effects of inequality based on race, sex, and class. This 
stress is directly related, both as cause and effect, to the 
staggering and disproportionate degree of illness experi­
enced by African American women. For the estimated 14 
million African American women living in the United 
States, life expectancy is shorter and maternal and infant 
mortality rates are higher than those of white women. 
This disparity is manifested not only in those areas con­
sidered traditional health concerns of women, such as 
obstetrics and gynecology, but in a wide array of chronic 
conditions such as lupus, diabetes, hypertension, cardio­
vascular disease, and certain cancers, from which African 
American women are more likely to die than are their 
white counterparts. Major, Including Black Women, 
speech at Midwest Academy Citizen Action 1991 Confer­
ence, Rebuilding America (July 26-28, 1991) 3-5 (present­
ing data). The life expectancy in the African American 
community lags three decades behind that of whites. Id. 
at 3. As workers and heads of households, childbearers 
and nurturers, African American women and other 
women of color have borne the brunt of these inequal­
ities. Illness and disease are thus sensitive indicators of 
social inequality as well as social harms to be rectified.



3

Racist practices such as crossburnings and other 
exemplary acts of terrorist bigotry dramatically affect 
both the material and psychological context within which 
African American women and their communities exist. 
Such acts cause tremendous mental and emotional dam­
age, create long-lasting dread and well-founded appre­
hension for security of the person, and demand a 
response as a means of attempting to reestablish self- 
respect and security and ensuring survival. Living in a 
state of seige is not conducive to health because it limits 
access to that equality of rights without discrimination 
which is essential to human flourishing.

-----------------♦ -----------------

SUMMARY OF ARGUMENT

The Minnesota Supreme Court upheld St. Paul Minn. 
Leg. Code section 292.02 (1990) ("§ 292.02") by authori­
tatively construing it as limited to "fighting words" 
under Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), 
thus applying only to expressive conduct which falls 
outside First Amendment protection. Matter of Welfare of 
R.A.V., 464 N.W. 2d 507 (Minn. 1991). While accepting 
this analysis, the National Black Women's Health Project 
respectfully submits that the ordinance promotes the gov­
ernment's "compelling interest in eradicating discrimina­
tion," Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1983) (sex 
discrimination), Korematsu v. United States, 323 U.S. 214, 
216 (1944) (racial discrimination constitutionally suspect), 
Richmond v. J.A. Croson, 488 U.S. 469, 494 (1989) (same) in 
a way which outweighs First Amendment interests.



4

Crossburning, of which defendant R.A.V. is accused, 
should be recognized as a terrorist hate practice of intim­
idation and harassment which, contrary to the purposes 
of the Fourteenth Amendment, works to institutionalize 
the civil inequality of protected groups. As applied to 
petitioner and others who engage in related practices, the 
statute in question does not violate the First Amendment 
because social inequality, including through expressive 
conduct, is a harm for which states are entitled leeway in 
regulation. New York v. Ferber, 458 U.S. 747 (1982) (harm to 
mental and physical health of children used in child 
pornography justifies its regulation); Pittsburgh Press Co. 
v. Pittsburgh Comm'n. on Human Relations, 413 U.S. 376 
(1973) (interest in eradicating sex discrimination out­
weighs First Amendment interest in sex-segregated 
advertising); U.S. v. O'Brien, 391 U.S. 367, 376-377 (1968) 
(communicative conduct may be regulated under specific 
conditions). The goal of eradicating inequality is 
advanced narrowly, leaving ample room for less coercive 
and harassing means of expressing the same message.

Applied, as here, to discriminatory expressive action, 
§ 292.02 significantly advances equality and damages 
freedom of expression virtually not at all. The compelling 
interest in eradicating discrimination justifies any impact 
that application of the statute, as narrowed by the Minne­
sota Supreme Court and justified herein, may have on the 
expressive freedoms of perpetrators of symbolic acts of 
bigotry. Because the legitimate reach of § 292.02 dwarfs 
any arguably impermissible applications, Broadrick v. 
Oklahoma, 413 U.S. 601 (1973), the ordinance is not uncon­
stitutionally overbroad.



5

ARGUMENT

I. THE CHALLENGED ORDINANCE PROMOTES 
THE COMPELLING GOVERNMENTAL INTEREST 
IN EQUALITY, OUTWEIGHING FIRST AMEND­
MENT CONCERNS.

A. The Ordinance Prohibits Discriminatory Prac­
tices Which Violate And Undermine The Equal­
ity Rights Of Target Groups.

On its face, § 292.02 prohibits, with qualifications, the 
placing of "a symbol, object, appellation, characterization 
or graffiti, including but not limited to, a burning cross or 
Nazi swastika" on public or private property. The quali­
fications include a scienter requirement ("knows or has 
reasonable grounds to know"), injurious or dangerous 
consequences ("arouses anger, alarm, or resentment in 
others"), and a traditional prohibited basis on "race, 
color, creed, religion, or gender." This case applies the 
statute to an incident in which white youths allegedly 
burned a cross on the lawn of the one African American 
family in a St. Paul neighborhood. Matter of Welfare of 
R.A.V., 464 N.W. 2d 507 (Minn. 1991).

The flaming cross is a well-recognized symbol of 
racial and religious hatred and instrument of persecution 
and intimidation, historically directed principally against 
Blacks and Jews. By the 1920's, the Ku Klux Klan -  a 
white supremacist racial hate organization which is 
secret, violent, authoritarian, xenophobic, and rabidly 
prejudiced -  made it the emblem of its presence and the 
precursor of arson, firebombing, torture, and lynching. 
See generally Wade, THE FIERY CROSS (1987); Goldberg, 
HOODED EMPIRE (1981); Alexander, THE KU KLUX



6

KLAN IN THE SOUTHWEST (1965); Katz, THE INVISI­
BLE EMPIRE (1986). One federal district court found that

. . . .  to attain its end, the klan exploits the forces 
of hate, prejudice, and ignorance. We find that 
the klan relies on systematic economic coercion, 
varieties of intimidation, and physical violence 
in attempting to frustrate the national policy 
e x pr es s ed in c ivi l  r i ght s  l eg i s l a t i on.
. . . [Kjlansmen pledge their first allegiance to 
their Konstitution and give their first loyalty to 
a cross in flames. U.S. v. Original Knights of the 
Ku Klux Klan, 250 F. Supp. 330, 334, 335 (E.D. La. 
1965).

Crossburning was also directed against Jews by the Nazis 
in Germany in the 1930s. Wade, 185. Crossburning, cou­
pled with violence, motivated by invidious animus, has 
continued to the present day, escalating in recent years. 
McMullen v. Carson, 754 F.2d 936, 938 (11th Cir. 1985); 
Marshall v. Bramer, 110 F.R.D. 232, 235-237 (W.D. Ky. 1985) 
(collecting cases); Padgett, Racially-Motivated Violence 
and Intimidation: Inadequate State Enforcement and Fed­
eral Civil Rights Remedies, 75 J. Crim. L. 103 (1984).

Courts have recognized that crossburning threatens vio­
lence, Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988), and is a 
"particularly invidious act when directed against a black 
American," U.S. v. Salyer, 893 F.2d 113, 117 (6th Cir. 1989), 
one which produces "fear, anxiety, and apprehension for 
safety" among Black men, Ford v. Hollowell, 385 F. Supp. 1392, 
1397 (N.D. Miss. 1974). The Eleventh Circuit, in a case 
involving a conviction for crossburning, recognized that 
crossburning sought to intimidate a Black family. U.S. v. 
Worthy, 915 F.2d 1514, 1515 (11th Cir. 1990). The Eighth 
Circuit recently concluded that a "cross burning was an



7

especially intrusive act which invaded the substantial 
privacy interests of its victims in an essentially intoler­
able manner." U.S. v. Lee, 935 F.2d 952, 956 (8th Cir. 1991). 
The Sixth Circuit observed similarly that "a black Ameri­
can would be particularly susceptible to the threat of 
cross burning because of the historical connotations of 
violence associated with the act." Salyer, 893 F.2d 116. 
That crossburning is a threatening act on the basis of race 
is uncontested.

Indeed, there is no doubt in anyone's mind what 
crossburning connotes, conveys, portends, or does. In 
U.S. v. Lee, Lonetta Miller, a seventy-one year old Black 
woman testified on cross-examination as follows:

Q: Could you tell the ladies and gentlemen of
the jury what a cross burning means, whether it 
is in the south or anywhere else?
A: Well it is a form of intimidation; the ku klux
klan uses it for threats; promises of violence, 
and that sort of thing. From what I understand a 
lot of the cross burnings in the south during the 
civil rights movement preceded hangings and 
that sort of thing. 935 F.2d, 956 n.5.

The Eighth Circuit observed there that defendants' cross­
burning "was tantamount to intimidation by threat of 
physical violence. It was not mere advocacy, but rather an 
overt act of intimidation which, because of its historical 
context, is often considered a precursor to or a promise of 
violence against black people." 935 F.2d, 956.

All of the cases discussed above involved complaints 
of crossburning in a context of inequality claims. Crosses 
have been found burned to intimidate Blacks out of voter 
registration in a jury selection case, Ford v. Hollowell,



8

385 F. Supp. 1392 (N.D. Miss. 1974); to induce targets to 
refrain from exercising federally assured rights such as 
travel, association, and speech under 42 U.S.C. § 1985(3), 
Stevens v. Tillman, 855 F.2d 394 (7th Cir. 1988); and to 
threaten and intimidate citizens from the free exercise or 
enjoyment of a civil right under 42 U.S.C. § 241, U.S. v. 
Salyer, 893 F.2d 113 (6th Cir. 1989), U.S. v. Worthy, 915 F.2d 
1514 (11th Cir. 1990).

Two recent Court of Appeals decisions are partic­
ularly apposite to the instant case. In one, the defendant 
was charged with conspiracy to interfere with housing 
rights by force or threat of force for burning a cross 
within sight of an African American family's home. U.S. 
v. Lee, 935 F.2d 952 (8th Cir. 1991) (upholding civil rights 
claim under 42 U.S.C. § 3631(a) over First Amendment 
defense). In another, the defendant pled guilty, inter alia, 
to interference with housing rights, stating in the plea 
agreement that defendants "decided to burn the cross in 
the victims' yard 'because of the family's race and their 
presence in the neighborhood . . . ' " U.S. v. Long, 935 F.2d 
1207, 1209 (11th Cir. 1991) (allowing race to be taken into 
account as a fact in sentencing enhancement).1

Existing equality law has long recognized similar 
practices as violations of civil rights. Title 42 U.S.C. 
§ 1971(b) provides that "no person . . . shall intimidate, 
threaten, coerce, or attempt to intimidate, threaten, or 
coerce any other person for the purpose of interfering

1 Some of these cases, such as Worthy, also invoke 18 
U.S.C. § 844(h)(1), use of fire in the commission of a federal 
felony. See e.g., U.S. v. Gresser, 935 F.2d 96 (6th Cir. 1991).



9

with the right of such other person to vote or to vote as 
he may choose . . . "  Where sharecropper-tenants in 
possession of real estate under contract are threatened, 
intimidated or coerced by landlords for the purpose of 
interfering with their rights of franchise, U.S. v. Bruce, 353 
F.2d 474 (5th Cir. 1965); U.S. v. Beaty, 288 F.2d 653 (6th Cir. 
1961), burning a cross to attempt to intimidate a person 
out of their voting rights should clearly be covered as 
well. Similarly, 42 U.S.C. § 2000b provides for an action 
for threatened loss of equal access to public facilities, 
under which burning a cross would obviously be 
included. Crossburning to exclude from housing rights, 
as in the case at bar, is covered under 42 U.S.C. Section 
3631(a), which prevents intimidation of "any person 
because of his race, color, religion, sex . . . "  from exercis­
ing rights to fair housing. See also 42 U.S.C. § 3617 (1991).

In upholding Title II of the Civil Rights Act of 1964's 
equal accommodations provision, this Court emphasized 
that its "fundamental object . . . was to vindicate the 
deprivation of personal dignity that surely accompanies 
denials of equal access . . . "  Heart of Atlanta Motel, Inc. v. 
U.S., 379 U.S. 241, 250 (1964). Cowering in terror at night 
with your family on the floor of your own home in the 
light of a terrorist cross burning on your lawn is surely a 
deprivation of personal dignity equal to not being per­
mitted to stay overnight in a motel on the road.

Other civil rights rubrics have long permitted civil 
actions for conduct covered under § 292.02. Behavior 
such as hanging a noose over a desk, Vance v. Southern 
Bell, 863 F.2d 1503 (11th Cir. 1989) or in a supply room, 
Taylor v. Jones, 653 F.2d 1196 (8th Cir. 1981), or writing 
"KKK" on a tool shed in a workplace, Vaughn v. Pool



10

Offshore Co., 683 F.2d 922 (5th Cir. 1982) are legally action­
able as discriminatory harassment on the basis of race. 
Placing pornography in the workplace, arguably a type of 
conduct based on gender under § 292.02, has been recog­
nized as discriminatory sexual harassment under Title 
VII. Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 
(M.D. Fla. 1991) (posting sex pictures is sexual harass­
ment over First Amendment defense); but cf. Rabidue v. 
Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986) (posting 
sex pictures is not sexual harassment because pornogra­
phy is pervasive; no First Amendment defense raised).

Purely verbal harassment is unproblematically 
actionable as racial or sexual discrimination or both 
under state and federal human rights laws. Rogers v. 
EEOC, 454 F.2d 234 (5th Cir. 1971), cert, denied, 406 U.S. 
957 (1972) (racial epithets); Friend v. Leidinger, 446 F. Supp. 
361 (E.D. Va. 1977), aff'd., 588 F.2d 61 (4th Cir. 1978) 
(racial harassment); Weiss v. U.S., 595 F. Supp. 1052 (E.D. 
Va. 1984) (anti-Semitic epithets). Examples of sexual 
harassment include Meritor Savings Bank v. Vinson, 477 
U.S. 57, 65 (1986); Elenson v. City of Dundee, 682 F.2d 897 
(11th Cir. 1982); Bohen v. East Chicago, 799 F.2d 1180, 1189 
(7th Cir. 1986) (Posner, J., concurring) (sexual abuse and 
vilification); Hicks v. Gates Rubber, 928 F,2d 966 (10th Cir. 
1991) (racial and sexual harassment); Continental Can v. 
State, 297 N.W.2d 241, 245-246 (Minn. 1980) (defendant 
"wished slavery days would return so that he could 
sexually train [plaintiff] and she would be his bitch," in 
action for sexual harassment under state human rights 
law).



11

Discrimination, it should be noted, is typically effec­
tuated through words like "you're fired;" "it was essen­
tial that the understudy to my administrative assistant be 
a man," Davis v. Passman, 422 U.S. 228, 230 (1971); and 
posted signs stating "whites only," See, e.g., Palmer v. 
Thompson, 403 U.S. 217 (1971); Jones v. Alfred H. Mayer Co., 
392 U.S. 409 (1968); Blow v. North Carolina, 379 U.S. 684 
(1965); Watson v. Memphis, 373 U.S. 526 (1963); see also 
Pierson v. Ray, 386 U.S. 547 (1967). Other common exam­
ples include "did you get any over the weekend?" Morgan 
v. Hertz Corp., 542 F. Supp. 123, 128 (W.D. Tenn. 1981), 
"sleep with me and I'll give you an A," Alexander v. Yale 
Univ., 459 F. Supp. 1, 3-4 (D. Conn. 1977), aff'd., 631 F.2d 
178 (2d Cir. 1980), and "walk more femininely, talk more 
femininely, dress more femininely, wear makeup, have 
[your] hair styled, and wear jewelry," Price Waterhouse v. 
Hopkins, 490 U.S. 228, 235 (1989). Nearly every time a 
refusal to hire or promote or accommodate is based on a 
prohibited group ground, some verbal act either consti­
tutes the discrimination or proves it.

To the knowledge of amicus, the First Amendment 
has been raised as a defense in none of these cases, other 
than to be rejected in Robinson (pornography) and Lee 
(crossburning). Section 292.02 merely covers by express 
language a small subset of facts that civil rights statutes 
and rubrics have, without First Amendment controversy, 
been permitted to cover under far broader prohibitions 
for decades.

The civil rights approach favors the prohibition of all 
invidious treatment that has as its consequence "implying 
inferiority in civil society" for individuals on the basis of 
their membership in identifiable social groups. Strauder v.



12

West Virginia, 100 U.S. (10 Otto) 303, 308 (1880). In a 
context of social inequality, the practices prohibited by 
§ 292.02 form integral links in systematic social discrimi­
nation. They work to keep target groups in socially iso­
lated, stigmatized, and disadvantaged positions through 
the promotion of fear, intolerance, segregation, exclusion, 
disparagement, vilification, degradation, violence, and 
genocide. The harms range from immediate psychic 
wounding and attack, Matsuda, Public Response to Racist 
Speech: Considering the Victim's Story, 87 Mich. L. Rev. 
2320, 2365-66 (1989), to well-documented consequent 
physical aggression. Increasing Violence Against Minorities: 
Hearing Before the Subcomm. on Crime of the House Comm, 
on the Judiciary, 96th Cong., 2d Sess. 124-25 (1980). As 
terrorist acts of social subordination, they effectuate 
inequality through coercion, intimidation and harass­
ment.

In this approach, the placing of Nazi swastikas pro­
motes the inequality of Jews on the basis of religion (and 
creates a false racial identification that has had genocide 
as its consequence). Crossburnings promote white 
supremacy -  in this case, the inequality of African-Ameri­
cans to whites -  on the basis of race and color. Such 
symbolic acts of social inequality are thus discriminatory 
practices, an expressive form inequality takes. In the 
instant case, the threat, although group-based, was 
directed against a specific family. Their injuries were not 
merely subjective, nor can their fears be said to be 
unfounded. See e.g. Marshall v. Bramer, 110 RR.D. 232 
(W.D. Ky. 1985) (Black couple whose home was destroyed 
by arson after cross burning brings § 1985(3) action 
against Klan as an organization). The statute's "alarm"



13

translates into moving out to avoid getting killed; its 
"anger" and "resentment" could well, in a healthy per­
son, become striking back in self-defense or in defense of 
one's human dignity. "There is no persuasive reason to 
wipe the statute from the books, unless we want to 
encourage victims of such verbal assaults to seek their 
own private redress." Gooding v. Wilson, 405 U.S. 518, 530 
(1972) (Burger, ]., dissenting).

At minimum, acts such as crossburnings further the 
social construction of a group as inferior, unequal, and 
rightly disadvantaged. On a material level, many African 
Americans were driven out of the South and forced to 
relocate in places like Minnesota as a result of such acts. 
Systematic liquidation due to membership in a group, as 
occurred to Jews and others during the Holocaust, is the 
ultimate inequality of which acts such as crossburning are 
an integral part. In the case at bar, the crossburning is an 
act of exclusion of Black residents from a neighborhood 
where they have an equality right to live. It is a euphe­
mism to say that this is what such acts communicate 
when the fact is that this is what they do.

B. The Practices Of Inequality Prohibited By 
§ 292.02 Are Not Protected By The First Amend­
ment.

Crossburning is expressive action which promotes 
racial inequality through its racist message and impact, 
engendering terror and effectuating segregation. It 
inflicts its harm through its meaning, as all threats do. 
Intimidation by threats of physical violence is not pro­
tected by the First Amendment. See, e.g., Watts v. United



14

States, 394 U.S. 705, 707 (1969); U.S. v. Orozco-Santilian, 
903 F.2d 1262, 1265 (9th Cir. 1990). But physical violence 
does not mark the constitutional line beyond which legis­
lation is impermissible. U.S. v. Lee, 935 F,2d 952, 956 (8th 
Cir. 1991). Where the harm the expression does to the 
emotional, physical, and mental health of vulnerable 
groups -  groups the state has an interest in protecting -  
outweighs its expressive value, even pure speech, on 
balance, can be restricted. New York v. Ferber, 458 U.S. 747 
(1982). Where the state interest is in eradicating discrimi­
nation, and the speech interest is not of the highest order, 
even written words can be regulated. Pittsburgh Press v. 
Pittsburgh Comm'n. on Human Relations, 413 U.S. 376 
(1973). With expressive conduct, a compelling govern­
mental interest, narrowly pursued, can outweigh a First 
Amendment interest. U.S. v. O'Brien, 391 U.S. 367 (1968). 
Assuming arguendo that croSsburning, a public show of 
force, falls within the scope of the First Amendment, 
under these combined tests, crossburning may readily be 
prohibited as under § 292.02.

The traditional approach to a statute such as § 292.02 
is to construe it as kind of a prohibition on group defama­
tion, as petitioner and his amici ACLU et al. have done. 
This fails to recognize the overriding importance of 
equality interests where the treatment of suspect classes 
based on race or gender are involved. When abused 
through speech, the victim's harm -  hence the state's 
interest in regulation -  has traditionally been conceived 
as protection of sensibilities from offense or guarding of 
emotional tranquility. Cohen v. California, 403 U.S. 15 
(1971); Street v. New York, 394 U.S. 576, 592 (1969). The 
harm of the type of conduct covered by § 292.02 has



15

traditionally sounded more in defamation -  injury to 
group reputation -  than discrimination -  injury to group 
status and treatment. While defamation recognizes dam­
age, its damage is more ideational and less material than 
the damage of discrimination, which recognizes the harm 
of second-class citizenship and inferior social standing 
with attendant m aterial deprivation of access to 
resources, voice, and power. Certainly, being treated as a 
second-class citizen furthers the second-class reputation 
of the group of which one is a member, even as a 
demeaned reputation permits and encourages social deni­
gration and exclusion. But equality is an interest of Con­
stitutional dimension; repute, however weighty, is not. 
The failure to recognize the equality interest at stake in 
"group libel" statutes, see e.g. Collin v. Smith, 578 F.2d 
1197, 1199 (7th Cir. 1978) (ordinance prohibiting parade 
permit for assemblies which, inter alia, incite violence, 
hatred, abuse or hostility "by reason of reference to reli­
gious, racial, ethnic, national or regional affiliation") cert, 
denied, 439 U.S. 916 (1978), has trivialized the harm and 
obscured the state interest, disabling the constitutional 
defense of such laws against First Amendment attack.

In the civil rights context, it should be noted that 
segregated lunch counters or toilets or water fountains 
were not defended because of what they said -  that is, as 
symbolic speech or as expressions of political opinion -  
although they were arguably both expressive and politi­
cal. Racial segregation in education was not regarded as 
protected speech to the extent it required verbal forms, 
such as laws and directives, to create and sustain it, nor 
was it legally regarded as actionable defamation against



16

African Americans, although a substantial part of its 
harm was the message of inferiority it conveyed, as well 
as its impact on the self-concept of Black children. Brown 
v. Board of Education, 347 U.S. 483, 494 (1954); see also 
Lawrence, If He Hollers Let Him Go: Regulating Racist 
Speech on Campus, 1990 Duke Law Journal 901 (Brown 
may be read as regulating the content of racist speech). 
Yet the harm of segregation and other racist practices is at 
least as much what it says as what it does, just as with 
crossburning, what it says is indistinguishable from what 
it does.

Where equality interests in regulating speech have 
been explicitly articulated, overwhelmingly they have 
prevailed. In Pittsburgh Press, because sex-segregated job 
advertisements "in d ica te d ]"  sex discrimination in 
employment, this Court concluded that such speech "sig­
naled that the advertisers were likely to show an illegal 
sex preference in their hiring decisions." Pittsburgh Press 
v. Pittsburgh Comm'n. on Human Relations, 413 U.S. 376, 
389 (1973). A burning cross "signals" just as powerfully 
that African Americans are not welcome in the neighbor­
hood. See also Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); 
Hishon v. King & Spalding, 467 U,S. 69 (1983).

Where the harm of symbolic conduct is real rather 
than symbolic, the value of the expression should be 
weighed against the harm done. New York v. Berber, 458 
U.S. 757, 763-64 (1982) (harm of child pornography out­
weighs its expressive value). The value of crossburnings



17

"is exceedingly modest, if not de minimus." 459 U.S. 762. 
Indeed, its only value lies in the harm it does.2

In the civil rights context, courts have increasingly 
rejected First Amendment protections for racist harass­
ment and intimidation, including through symbolic 
means. In the Vietnamese Fishermen's case, the court 
enjoined defendants from engaging in acts of violence, 
intimidation, or harassment under 42 U.S.C. §§ 1981, 1983 
and 1985 for symbolic acts including hanging an effigy of 
a Vietnamese fisherman, walking around with guns, and 
"burning crosses on property within the geographic area 
where members of plaintiffs' class live and/or work with­
out the consent of the owner of said property." Vietnamese 
Fishermen's Ass'n. v. Knights of the Ku Klux Klan, 543 F. 
Supp. 198, 220 (S. D. Tex. 1982). Similarly, in the Lac du 
Flambeau Indians case, the court, finding a claim under 42 
U.S.C. § 1985(3) based on a "campaign driven by racial 
hostility toward Indians" as evidenced by verbal racial 
insults, found an injunction against such activities out­
side First Amendment scope. Lac du Flambeau Indians v. 
Sto-p Treaty Abuse-Wis., 759 F. Supp. 1339, 1349, 1353 (W.D. 
Wis. 1991).

In a related recognition, the Supreme Court of Geor­
gia recently upheld an anti-mask law against a free

2 Outside the recognized civil rights context, but invoking 
similar concerns, Justice Souter, concurring in Barnes v. Glen 
Theatres, Inc., expressed a similar rationale for upholding a 
restriction on nude dancing based on its "secondary effects," 
there, increased prostitution and sexual assault. I l l  S.Ct. 2456, 
2470. In the instant case, racial exclusion and intimidation is 
the primary, indeed only, effect of the expression, making its 
avoidance even weightier.



18

speech challenge, recognizing that the Klan's practice of 
wearing masks worked to "intimidate, threaten, or create 
an environment for impending violence," hence was not 
protected speech, in a factual context in which the mask- 
wearing "helped to create a climate of fear that prevented 
Georgia citizens from exercising their civil rights." State v. 
Miller, 398 S.E.2d 547, 550 (1990). Crossburnings are at 
least as harassing, intimidating, and obstructive of pro­
tected rights.

Conduct that communicates may invoke the First 
Amendment but is not necessarily protected speech. This 
Court permits expressive conduct to be regulated more 
readily than other expression. It looks to see if such 
regulation "furthers an important or substantial govern­
mental interest; if the governmental interest is unrelated 
to the suppression of free expression; and if the incidental 
restriction on alleged First Amendment freedom is no 
greater than is essential to the furtherance of that inter­
est." U.S. v. O'Brien, 391 U.S. 367, 376-377 (1968). See also 
Barnes v. Glen Theatre, Inc., I l l  S.Ct. 2456 (1991) (nude 
dancing case, reaffirming and adumbrating O'Brien). 
Fiarm to a state interest does not become protected as 
speech because it makes a statement in inflicting an 
injury. As clarified in Texas v. Johnson, "a law directed at 
the communicative nature of the conduct must . . .  be 
justified by the substantial showing of need that the First 
Amendment requires . . .  It is, in short, not simply the 
verbal or nonverbal nature of the expression, but the 
governmental interest at stake, that helps to determine 
whether a restriction on that expression is valid." Texas v. 
Johnson, 491 U.S. 397, 406-407 (1989) (flag-burning case).



19

The recent cases on flag-burning found the statutes 
regulating it impermissible because they lacked a suffi­
cient governmental interest other than that of sup­
pressing a particular form of criticism of the government. 
The expression of an idea through conduct may not be 
regulated "simply because society finds the idea itself 
offensive or disagreeable." Johnson, 491 U.S., 414. The 
Court in dicta emphasized the. inadequacy of offensive­
ness as a harm: "'[w]e are aware that desecration of the 
flag is deeply offensive to many. But the same might be 
said, for example, of virulent ethnic and religious 
epithets . . . "  U.S. v. Eichman, 110 S. Ct. 2402, 2410 (1990). 
Protected groups are not in a position of power compara­
ble to that of the government, and, in reality, nothing is 
done to the country when its symbol is burned. By con­
trast, crossburning, if unpunished, is tantamount to racial 
supremacy and exclusion, like a "white only" sign only 
nonverbal. Like most acts, crossburning expresses an 
idea, but unlike other expressions of ideas, it is threaten­
ing and coercive conduct on the basis of race. As noted by 
the Seventh Circuit in Collin v. Smith, "It bears noting that 
we are not viewing here a law which prohibits action 
designed to impede the equal exercise of guaranteed 
rights . . .  or even a conspiracy to harass or intimidate 
others and subject them thus to racial or religious 
hatred . . .  If we were, we would have a very different 
case." 578 F.2d, at 1204, n.13. Creating a First Amendment 
exception for an injured flag is not the same as recogniz­
ing the state interest in protecting from discrimination 
terrorized and constructively evicted Black citizens 
awaiting what may well be a firebombing or a lynch mob.



20

This Court has made dear that, "concepts virtually 
sacred to our Nation as a whole -  such as the principle 
that discrimination on the basis of race is odious and 
destructive" must, as a matter of principle, remain dis­
puted in the marketplace of ideas. Johnson, 491 U.S., 417. 
The marketplace of ideas cannot be assumed to be an 
equal place in a society in which some groups are system­
atically unequal to others. But this reality need not be 
confronted here, since the idea of racial equality can 
remain disputed in St. Paul. The city, through § 292.02, 
does not enforce its views in a dialogue on racial equality, 
nor has St. Paul here adopted the instant regulation of 
crossburning "because of disagreement with the message 
it conveys." Community for Creative Non-Violence v. Watt, 
468 U.S. 288, 295 (1984). Rather, this expressive conduct is 
prohibited because it inflicts inequality through the deliv­
ery of its message. As this Court observed in Jaycees, 
upholding an equality claim over a First Amendment 
association challenge, "acts of invidious discrimination in 
the distribution of publicly available goods, services, and 
other advantages cause unique evils that government has 
a compelling interest to prevent -  wholly apart from the 
point of view such conduct may transmit . . . Ac­
cordingly . . . such practices are entitled to no constitu­
tional protection." Roberts v. U.S. Jaycees, 468 U.S. 609, 628 
(1984). That the content of the message is politically racist 
does not, ipso facto, make it protected speech. "[IJnvidious 
private discrimination may be characterized as a form of 
exercising freedom . . . protected by the First Amend­
ment, but it has never been accorded affirmative constitu­
tional protection." Norwood v. Harrison, 413 U.S. 455, 470 
(1973). This case is not the time to start.



21

For St. Paul to side with equality as a basis for public 
policy is not the same as officially imposing a conclusion 
on a dialogue. A crossburning is not a dialogue, it is a 
discriminatory act. The state need not remain neutral 
when racial inequality is practiced, including through 
expressive conduct. A law against crossburning means 
only that second-class citizenship may not be imposed in 
this way. When equality is a constitutional mandate, the 
idea that some people are inferior to others on the basis 
of group membership has been authoritatively rejected as 
the basis for public policy. Practices based on this idea are 
not insulated from regulation on the ground that the 
ideas they express cannot be rejected by law, nor are 
legislative attempts to address such practices invalid 
because they take a position in favor of human equality.

Burning crosses, placing Nazi swastikas, and posting 
pornography in workplaces serve none of the purposes 
for which speech is protected, any more than verbal racial 
and sexual harassment or "white only" signs do. Free 
speech is valued because it encourages political dissent, 
debate, and participation in self-government, Emerson, 
THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1970), 
Meiklejohn, FREE SPEECH AND ITS RELATION TO 
SELF-GOVERNMENT 27 (1948); promotes diversity, tol­
erance, and self-restraint, Bollinger, THE TOLERANT 
SOCIETY 9-11 (1986); manages social change and social 
conflict, Emerson, at 7; advances knowledge and pro­
motes the discovery of truth, Mill, ON LIBERTY 16-52 (A. 
Castell ed. 1947); and promotes individual self-fulfill­
ment, Baker, Scope of the First Amendment Freedom of 
Speech, 25 U.C.L.A. L. Rev. 964, 995-996 (1978). The acts 
prohibited by § 292.02, by contrast, quash dissent by



22

silencing the voices of disadvantaged groups through 
terrorism, often insuring that the victims are so intimi­
dated that the most aggressive and coercive verbal 
attacks upon them never become "fighting words" 
because they cannot or do not fight back.3 Such acts also 
inhibit truth-seeking because they intimidate disadvan­
taged groups from asserting their truth and their point of 
view. They undermine social diversity through exclusion 
and discourage community participation by demeaning 
the human worth and self-esteem of their targets. If big­
ots are fulfilled through such acts, it is at the expense of a 
welcoming and tolerant environment for others.

The hatemongering prohibited by § 292.02 silences 
the speech of the less powerful as it marginalizes and 
segregates them. The official imprimatur of approval that 
would be secured for such conduct by protecting it as 
expression would do incalculable harm to the "hearts and 
minds," Brown v. Board of Education, 347 U.S. 483, 494 
(1954), of its victims, inhibiting progress toward civil 
equality, and delegitimating the First Amendment.

In prohibiting such practices, the St. Paul ordinance 
"responds precisely to the substantive problem which 
legitimately concerns" government and abridges no more 
freedom of speech than necessary to accomplish that 
purpose. See City Council of Los Angeles v. Taxpayers for 
Vincent, 466 U.S. 789, 810 (1984); Ward v. Rock Against 
Racism, 491 U.S. 781 (1989). Moreover, the provision aims

3 This is to suggest that the "fighting words" doctrine 
implicitly assumes an equality of social vulnerability, safety, 
and state solicitude that cannot be assumed for groups that 
have historically been the targets of discrimination.



23

to stop intimidation from protected rights and to advance 
equality, not to suppress dissident speech. While the con­
tent of the message of a burning cross may represent 
dissent from the national consensus reflected in legal 
mandates of equality, it offers no dissent from the over­
whelming reality of racial inequality that continues to 
afflict social life. Bell, AND WE ARE NOT SAVED: THE 
ELUSIVE QUEST FOR RACIAL JUSTICE (1987). Cross­
burning should not be romanticized as a lonely and 
unheeded critique of a powerful status quo. Its racism 
entrenches, embodies, and advances society's most 
repressive and antiegalitarian norms, indefensible in a 
society that has equality as a constitutional guarantee.

If St. Paul burned a cross at an official ceremony, it 
would discriminate on the basis of race in violation of the 
Fourteenth Amendment. The fact the conduct was expres­
sive would be no defense. This would be as virulent and 
shocking an act "designed to maintain White Supremacy" 
as has ever been seen. Loving v. Virginia, 388 U.S. 1, 11 
(1967) (invalidating antimiscegenation laws). What would 
be discriminatory for government to do can be recog­
nized as discriminatory in society through legislation. By 
prohibiting such conduct when it occurs between its citi­
zens, the city acts against socially institutionalized 
inequality and, indirectly, against the negative group 
animus that drives it.

Section 292.02 is as much an equality provision as if it 
were part of the human rights code. Like the provision 
upheld over First Amendment concerns in Jaycees, the 
ordinance reflects Minnesota's historically "strong com­
mitment to eliminating discrimination and assuring its



24

citizens equal access to publicly available goods and ser­
vices." Roberts v. U.S. Jaycees, 468 U.S. 609, 624 (1984). 
Had equality been recognized as the constitutional inter­
est at stake in group defamation, it would have sup­
ported Justice Frankfurter's opinion upholding Illinois' 
statute in Beauharnais, not overruled to this day, that "a 
man's job and his educational opportunities and the dig­
nity accorded him may depend as much on the reputation 
of the racial and religious group to which he willy-nilly 
belongs, as on his own merits." Beauharnais v. Illinois, 343 
U.S. 250, 263 (1952). It would also support the reserva­
tions based on Beauharnais expressed by some members 
of this Court in the Skokie case. Smith v. Collin, 439 U.S. 
916 (1978) (Blackmun, }., with whom White, }., joins, 
dissenting from denial of cert, to resolve possible conflict 
with Beauharnais). See also R. v. Keegstra, [1991] 2 W.W.R. 
1 (Supreme Court of Canada upholding hate propaganda 
statute on equality rationale under Canadian Charter of 
Rights and Freedoms). As the Eighth Circuit concluded in 
an action for a crossburning, "[t]o protect the inhabitants 
of this nation from such an attack on civil rights does not 
violate the spirit of the first amendment." U.S. v. Lee, 935 
F.2d 952, 956 (8th Cir. 1991).

II. AS APPLIED TO DISCRIMINATORY EXPRESSIVE
CONDUCT, § 292.02 IS NOT SUBSTANTIALLY
OVERBROAD.

First Amendment overbreadth doctrine provides an 
exception to the rule that a person to whom a statute may 
constitutionally be applied may not challenge it on 
grounds that it may conceivably be applied unconstitu­
tionally to others in situations not before the court. The



25

concern is that a sweeping statute, or one incapable of 
limitation, can chill much protected expression before it 
can be stopped. Broadrick v. Oklahoma, 413 U.S. 601 (1973). 
As explained in Broadrick, the function of this exception,

a limited one at the outset, attenuates as the 
otherwise unprotected behavior that it forbids 
the State to sanction moves from "pure speech" 
toward conduct and that conduct -  even if 
expressive -  falls within the scope of otherwise 
valid criminal laws that reflect legitimate state 
interests in maintaining comprehensive controls 
over harmful, constitutionally unprotected con­
duct. 413 U.S., 615.

While the Court may have been thinking of conduct in 
which the harmful communicative impact is separate from 
the harm of the conduct as such, the considerations in per­
mitting regulation are no less strong when the two are one, 
as here. The laws under which crossburning has previously- 
been prohibited as a civil rights violation have long been 
recognized as valid. Crossburning, while expressive, is less 
"pure speech" and more conduct than is child pornography. 
See Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 n.12 
(1985) ("The Court of Appeals erred in holding that the 
Broadrick substantial overbreadth requirement is inapplicable 
where pure speech rather than conduct is at issue. Berber 
specifically held to the contrary."). The equality interests in 
eradicating racial discrimination, of which crossburning and 
related acts are instances, are "fundamental, overriding." Bob 
Jones Univ. v. U.S., 461 U.S. 574, 604 (1983) (equality as public 
policy upheld over free exercise claim). And § 292.02 has 
already been subjected to a limiting construction by the state 
court. Matter of Welfare of R.A.V., 464 N.W.2d 507 (Minn. 
1991).



26

Like the statute in Ferber, § 292.02 is "the paradigma­
tic case of a statute whose legitimate reach dwarfs its 
arguably impermissible applications," hence is not sub­
stantially overbroad. New York v. Ferber, 458 U.S. 747, 773. 
The overwhelming majority of the speech acts covered 
are already unprotected speech even apart from an equal­
ity rationale. There is no right to burn crosses on public 
property, Adderley v. State of Florida, 385 U.S. 39 (1966), or 
on the private property of another without permission, 
Lloyd Cory. v. Tanner, 407 U.S. 551 (1972). That leaves 
burning crosses with permission on others' property and 
on one's own property -  a group of instances so small 
that the overbreadth doctrine, which is "strong medi­
cine," Broadrick, 413 U.S. 613, is inappropriate. "The 
premise that a law should not be invalidated for over­
breadth unless it reaches a substantial number of imper­
missible applications is hardly novel." Ferber, 458 U.S., 
771.

This result is distinguishable from the invalidation 
on overbreadth grounds of a statute prohibiting 
"opprobrious words or abusive language" in Gooding v. 
Wilson, although the facts of both cases involve "bullying 
tacticjs]" Gooding v. Wilson, 405 U.S. 518, 535 (Blackmun, 
}., dissenting) which raise speech concerns. The statute at 
issue in Gooding was directed only to spoken words, not 
conduct, and, as applied, sought to safeguard the sensi­
bilities of police officers rather than the equality rights of 
protected groups. Even so, some justices found Cha-plinsky 
undermined by that overbreadth invalidation: "If this is 
what the overbreadth doctrine means, and if this is what 
it produces, it urgently needs re-examination." 405 U.S.,



27

537 (Blackmun, with whom Burger, C. ]., joins, dissent­
ing).

-----------------♦-----------------

CONCLUSION

The judgment of the Minnesota Supreme Court 
should be affirmed.

Respectfully submitted,

/s/ Catharine A. MacKinnon 
C atharine A. M acK innon*
625 S. State Street
Ann Arbor, Michigan 48109-1215
(313) 747-4046
B urke M arshall 
127 Wall Street
New Haven, Connecticut 06520 
(203) 432-4953

Attorneys for Amicus Curiae

* Counsel of Record

August 23, 1991