Washington. -- Bad cases, it is truly said, make bad law. The maxim should be extended: Bad law makes more bad law. In its recent 5-4 decision on hateful speech, the Supreme Court made enough bad law to last for months to come.
These were the facts. At roughly 2 a.m. June 21, 1990, several white boys in St. Paul, Minn., had a great idea. They made a crude cross by taping together a couple of wooden chair legs. They soaked it with gasoline. Then they sneaked onto the lawn of a house recently occupied by a black family and set the cross afire. What brave boys!
Thus the juveniles sought to express an idea -- the idea, perhaps, that blacks are inferior, or that blacks are unwelcome in white neighborhoods. Maybe the implied threat would cause the blacks to leave. Who can say what the dear little bigots had in mind?
In any event, police swiftly found the juveniles and charged them under a recently adopted city ordinance. The ordinance provides:
"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."
If the St. Paul prosecutor had kept his wits about him, he never would have tried the boys under the bias-motivated ordinance. He would have charged them with arson, or trespass, or under a state law punishing terroristic threats.
Instead, the city charged them under the ordinance. That began the chain of bad law. The youths were convicted. The case wound its way through state courts, and on June 22 all nine members of the U.S. Supreme Court agreed that the ordinance is unconstitutional. (Four justices dissented from the majority's reasoning.) The law, they concluded, is "overbroad." It violates the First Amendment by punishing only certain forms of expressive conduct that cause hurt feelings.
If the court had stopped at that point, its decision would have been right in line with a long string of decisions dealing with hateful or unpopular speech. But no. Justice Antonin Scalia, writing for the majority, created a thicket of impenetrable reasoning. He plunged in, dragging Chief Justice Rehnquist and Justices Kennedy, Souter and Thomas behind him.
When they emerged, 18 pages later, they had thoroughly muddied the law on "fighting words." Justice Byron White, writing for the four dissenters, growled that Justice Scalia and his colleagues were "driven by the frequently irresistible impulse of judges to tinker with the First Amendment." The majority's decision, said Justice White, "is mischievous at best and will surely confuse the lower courts." I say amen to that.
Justice Scalia is the most skilled writer on the high court. Ordinarily his opinions are models of clarity, but everyone has bad days, and in this instance Justice Scalia had a horrible day. One gropes through his maze, tripping at every step over vines of tangled prose.
As best I can make out what he said, the city ordinance went too far. It also did not go far enough. It was unlawful to arouse resentment by shouting "kike" or "nigger," but not by shouting "scab" or "communist." The law punishes only certain fighting words. Said Justice Scalia: "Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas."
How's that again? There is nothing unconstitutional in "handicapping the expression of particular ideas." Government may handicap expression of ideas about cigarettes, obscenity and libel. If St. Paul had made its ordinance apply only to speech calculated to provoke imminent riot, nothing in the First Amendment would stand in the way. As Oliver Wendell Holmes said, the Constitution accords no protection to the nut who cries "Fire!" in a crowded theater.
What does Justice Scalia's turgid opinion mean to the "hateful speech" codes of various colleges? My guess is that it knocks them out. Like St. Paul's flawed ordinance, these college codes forbid speech that causes hurt feelings based upon race, color, creed, religion or gender. College students should be made of sterner stuff.
My thought would be to write off Justice Scalia's opinion as no more than a belch at a black-tie dinner. Let us look the other way. This distinguished justice can do better. He rarely will do much worse.
James J. Kilpatrick is a syndicated columnist.