Beyond the Burning Cross:: The First Amendment and the Landmark R.A.V. Case

An attorney describes his involvement in a controversial case in which a teenager is charged with placing a burning cross on the lawn of a black family in St. Paul, Minnesota, a case that made its way to the Supreme Court and sparked a landmark decision. 10,000 first printing. Tour.

This is a worthy, instructive account of a free speech case that caused deep rifts in America's progressive firmament. On June 21, 1990, a cross was burned on the lawn of a black family, Russell and Laura Jones and their five children, who had recently moved into a mostly white working-class neighborhood in St. Paul, Minn. One suspect pleaded guilty; the other defendant, 17-year-old Robert Anthony Viktora, was not charged for his conduct under statutes prohibiting threats but under a little-used ordinance targeting motivation (prohibiting symbols aimed at provoking racial, religious and other types of animosity). Public defender Cleary, while finding his client's act abhorrent, considered that the statute had implications threatening to First Amendment rights, and appealed. Here he offers a useful minihistory of free speech doctrine and, in an account that should absorb lawyers and general readers alike, describes the path of the case to the U.S. Supreme Court. Included are comments of law professors and liberal groups who were critical of Cleary's position. But in June 1992, the Court invalidated the ordinance (9-0), and Cleary muses that laws criminalizing bigoted motivation are dangerous and not useful in fighting prejudice.
Copyright 1994 Reed Business Information, Inc.

An honorable but flat how-I-won-that-case account, by Minnesota defender Cleary. On June 21, 1990, a 17-year-old ``rebel without a clue'' lit a small burning cross on the front lawn of a black family's home in St. Paul, Minn. The youth, whose initials were R.A.V., was indicted under St. Paul's new ``hate speech'' ordinance, which banned any symbol, such as burning crosses and swastikas, that ``arouse[d] anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender.'' Cleary, a private lawyer who regularly represented indigent clients (including, he is quick to point out, blacks), was dispatched by the county public defender's office to represent the young skinhead. He found his client's act repugnant; nevertheless, he immediately recognized that the hate- speech ordinance targeted ``the expression or viewpoint itself, including expression that was neither threatening nor terrorizing but simply upsetting''--or simply unpopular. Punish my client, he argued, but punish his conduct (under felony ``terroristic threats'' laws), not his speech. The Minnesota Supreme Court didn't agree, but the US Supreme Court did, ruling in a landmark 1992 decision that the threshold question for First Amendment analysis is not whether a certain type of speech is protected or not, but ``whether a law discriminates between viewpoints.'' Cleary correctly perceives that the general reader needs some appreciation of the evolution of free-speech jurisprudence to grasp the magnitude of the R.A.V. holding, but his workmanlike survey of a century of Supreme Court cases will glaze the eyes of all but Constitution wonks. For such a high-profile case, this book is remarkably devoid of human drama: Only the tales of the ACLU's passive-aggressive litigation support, and an attempt by two law- school honchos to commandeer Cleary's Supreme Court appearance, leaven the dry, dead-earnest prose. No juicy war stories here: just the author's Supreme Court brief annotated and enlarged for the general reader. -- Copyright ©1994, Kirkus Associates, LP. All rights reserved.

St. Paul attorney Cleary defended a juvenile--known by his initials, R. A. V.--convicted of burning a cross on a black family's lawn. Although Cleary detested the act and felt his client should be prosecuted, he objected to the ordinance under which R. A. V. was convicted, one of many throughout the country that proscribed hate speech. "To enforce a notion of civility to the point of forbidding unpopular minority expression," Cleary argues, "is to underestimate the citizens of this country at the cost of our basic right of self-expression." Cleary describes the legal case well, citing historical precedents in terms that should intrigue any interested reader and also revealing the messy internal politics of such organizations as the American Civil Liberties Union. Adding appeal is the fact that this story of an unknown lawyer facing the Supreme Court almost single-handedly and winning is a classic saga of the underdog. Aaron Cohen

A burning cross, placed on the lawn of a black family living in a white neighborhood in St. Paul, Minnesota, led to the enactment of a sweeping "hate crimes" ordinance. Under this regulation's language, a youth known as R.A.V. and another were prosecuted. But, as Nat Hentoff observes in the introduction, "it was the First Amendment, not cross-burning, that powered this case." Lawyer Cleary represented R.A.V. from the beginning to the arguments before the U.S. Supreme Court, whose 1992 decision was truly a victory of the First Amendment. Ultimately, this case underscores the troubling conflict between our ideas of civil rights and civil liberties. Cleary's book certainly achieves its most basic purpose, telling the story of one conflict resolved in the courts. Yet like Anthony Lewis's classic Gideon's Trumpet, it does much more than that, giving readers the opportunity to follow the course of law in the making. Highly recommended.
Jerry E. Stephens, U.S. Court of Appeals Lib., Oklahoma City
Copyright 1994 Reed Business Information, Inc.