I. The contested First Amendment question
September 17, 1999
I. The contested First Amendment question
The First Amendment of the U.S. Constitution is considered to be one of the most important amendments in the entire document. It includes the five rights of :religion, speech, press, petition and assemble. These five rights, particularly speech, have been the constant center of controversy for years in the American court system, as is it in these particular cases.
In the cases of R.A.V. v. City of St. Paul Minnesota (505 U.S. 377) (1992) and State of Florida v. T.B.D. (656 So. 479) (1995), the contested First Amendment question asks: Is a flaming cross, erected on private property protected by the First Amendment's freedom of expression and expressive conduct rights? This questions begs the fact as to whether government statutes can proscribe expressive conduct based solely on the conduct itself or the ideas expressed by the conduct.
On the morning of June 21, 1990 the petitioner, R.A.V., and several other teenagers assembled a crudely made cross and burned it on the fenced yard of a black family that lived across the street from where the petitioner was staying. The appellee called for punishment under the St. Paul Bias-motivated Crime Ordinance, St. Paul, Minnesota, Legis. 292.02 which 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 or race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."
The Supreme Court of the state of Minnesota upheld that the statute was constitutional on the grounds that the appellant had used "fighting words" in his expressive conduct toward the black family.
The state's supreme court judgment was reversed and remanded by the U.S. Supreme Court, which held that the state's statute was unconstitutional on the grounds that the court sought to prohibit permitted speech solely on the basis on content, a violation of the guarantees given by the First Amendment.
In the majority opinion of the U.S. Supreme Court, given by Justice Scalia, it held that "nonverbal expressive activity can be banned because of the action it entails, but not because of the idea it expresses."  The U.S. Supreme Court also held that "fighting words" are a "nonspeech" element, meaning that they are not protected by the First Amendment. In this case, this means that no matter how discriminatory the words are against any group, the First Amendment does not allow the state or state governmental agency to prohibit speech based on content.
In its decision, the Supreme Court included three exceptions to proscribe speech. The first exceptions states: "Content-based distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is 'the very reason the entire class of speech at issue is proscribable,'" This exception simply means that the statute making it illegal to threaten the life of the President is constitutional because of special force.
The second exception states: "certain content-based regulations will survive under the new regime if the regulated subclass 'happens to be associated with particular secondary effects of speech," in which the majority treats as encompassing instances in which 'words can...violate laws directed not against speech but against conduct...,'"
The final exception includes a "catchall exclusion" to protect against unforeseen problems. This would apply in cases in which " there is no realistic possibility that official suppression of ideas is afoot." Ante, 505 U.S. at 390.
In an examination of the above mentioned exceptions, the U.S. Supreme Court found the Minnesota state statute constitutionally invalid, because it discriminates against speech based on content.
Several of the justices chose to write a concurring opinion, detailing their reasoning for the ruling. In examining the issue of overbroadness, the justices upheld that "...it criminalizes not only unprotected expression but expression protected by the First Amendment."
State of Florida T.B.D.(appellant) v. T.B.D (appellee)
On August 2, 19993, T.B.D., a minor, was charged with erecting a flaming cross on the property of Atef Abdul-Nour in Jacksonville in violations of Section 876.18 of Florida statutes. The statute, entitled "Criminal Anarchy, Treason, and Other Crimes Against Public Order" states:
"Placing burning or flaming cross on property of another. -- It shall be unlawful for any person or persons to place or cause to be placed on the property of another in the state a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is a whole or part without first obtaining written permission of the owner or occupier of the premises to so do. Any person who violates this section commits a misdemeanor of the first degree, punishable as provided in s."
T.B.D. claimed that the statute "on its face" violates the First Amendment because it is a content-based law that prohibited expressive conduct.
The appellee also claimed that the statute violates R.A.V., in that the statute is overbroad and unnecessary "in light of other Florida laws covering related conduct.
The trial court held that the statute was unconstitutional under the First Amendment and the district court agreed. The State of Florida appealed. The Supreme Court of Florida, finding the statute constitutional, reversed the district court decision.
In its reasoning, the Supreme Court of Florida used several precedents including:
"The First Amendment promotes the free flow of ideas and information in our society by prohibiting government from restricting speech or expressive conduct because of the message expressed," Texas v. Johnson 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). This precedent simply means that speech and expressive conduct cannot be proscribed base on content alone.
In another precedent, the Supreme Court of Florida upheld Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286, 33 L. Ed. 2d 212 (1972) in that: "Content-based restrictions are presumptively invalid."
The court also upheld limited exceptions to the rule, allowing that the speech or expressive conduct constitutes "no essential part of any exposition of ideas, and (is) of such slight social value as a step to truth that any benefit that may be derived from (it) is clearly outweighed by the social interest in order and morality," Chaplinksy v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 769, 86 L. Ed. 1031 (1942). However the court contended that such speech can be regulated because of (its) constitutionally prohibited content as in R.A.V. This speech include defamation and obscenity which are not protected by the First Amendment.
In further upholding R.A.V., the court held that "...it is the extraordinarily threatening mode of expression, not the idea expressed, that is intolerable," 
In addressing overbreadth, the Florida Supreme Court referred to Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S. Ct. 2294, L. Ed. 2d 222 (1972) in that a statute is overbroad "if in its reach it prohibits constitutionally protected conduct." However, this doctrine comes with strong warning, especially where conduct as opposed to speech is concerned: "Application of the overbreadth doctrine... is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 s. Ct. 2908, 2916, 37 L. Ed. 2d 830 (1980). The Supreme Court of Florida concluded that the appellee's challenge of overbreadth to the state statute was not met because the conduct itself under the First Amendment and clearly stated in the statute is prohibited. The court held that the statute was legitimate in its attempt to protect citizens of the state of Florida and ensures that "those who exercise freedom of association or who join in robust debate on controversial issues need not fear this particular threat of violence. Although the First Amendment confers on each citizen a powerful right of self-expression, it gives no citizen a boon to launch terrorist raids against his or her neighbor."
In a dissenting opinion, Judge Overton held that contrary to the majority's decision, "it is not just the subjects to which protection is afforded that must be neutral, it also is the expressive activity itself that must be prohibited in a neutral fashion." In referring to the decision in R.A.V. , the Florida Supreme Court felt the statute reached only symbols or displays that aroused anger, alarm or resentment in others" could not be limited in connection with other "bias-motivated hatred. Judge Overton felt that this same judgment should be applied to this case and that the statute should be revised in accordance with the principles directed in R.A.V.
III. Comparison and Contrast
R.A.V. and T.B.D. had several similarities and differences. The similarities in the cases were:
1. both cases included minors.
` 2. both cases had minors that placed and burned crosses in the yards of the victims.
3. both cases contended that the state statute's violated the constitutional guarantees provided in the First Amendment.
4. both cases held that the acts expressed were intolerable and punishable by law.
5. both cases held that expressive speech could not be proscribed under the First Amendment.
However despite these similarities, there were major differences between R.A.V. and T.B.D. These differences had a major impact on the way the courts decided these cases. Although both cases claimed that the state statutes violated First Amendment guarantees, the statutes proscribe two different things. In R.A.V., the statute places limitations on the content that can be proscribed. The statute makes mention of special topics such as race, color, creed which places limitations on speech. Although the statute sought to protect citizens, it limitations made it unlawful to enforce and thus unconstitutional. In contrast, the statute in T.B.D. addresses the issue of privacy and private property and makes no mention race, color, etc., thus not proscribing any speech that is protected by the First Amendment.
Secondly, both cases addressed the overbreadth doctrine. In R.A.V., the opinion of the court held that the Minnesota state statute was overbroad because is criminalizes unprotected expression and expression protected by the First Amendment. In contrast, the court held in T.B.D. that the appellee failed to meet the overbreadth challenge because of the statute's plan language which clearly stated the conduct itself was prohibited under the First Amendment.
The courts came to different conclusions based on what was stated in the two state statutes. The Minnesota statute placed content-based restrictions on the speech and the activity expressed. The Florida statute only placed limitation on the conduct itself, which is eminently proscribed under the First Amendment. The main reason the court came up with different decisions in each of the cases is because of the prohibition that cannot be placed on content, which is protected under the First Amendment, with the exception of defamation and obscenity.
The decision that made the most sense was the T.B.D. case. This case clearly stated the First Amendment question of whether the statute restricted expressive activity. The statute in this case also clearly states that the activity itself is proscribed under the First Amendment without proscribing the content therein. Finally, this decision makes the most sense and is most enforceable because the appellee infringed on the victim's right to privacy by invading private property.
If the Supreme Court of the United States would have granted cert. and reviewed T.B.D., I believe that the Court would uphold the decision of the Florida Supreme Court. This is because the statute has no implications on the First Amendment. It clearly states that the action is punishable by law based on the action itself and not the idea expressed by the conduct.
 R.A.V. v. St. Paul, 505 U.S. 377 (1992)
 Id. at 384.
 Id. at 385.
 Id. at 408.
 Id. at 409.
 Id. at 410.
 Id. at 397.
 State v. T.B.D., 656 So. 2d 479 (1995).
 Id. at 2.
 Id. at 3.
 Id. at 3.
 Id. at 3.
 Id. at 5.
 Id at 7.
 Id. at 10.
 Id. at 13.