Hastings Constitutional Law Quarterly


The Supreme Court has long held that it would strictly scrutinize restrictions which burdened protected speech based on the content of the speech. In the past, fighting words have been considered as having such slight social value that they did not merit First Amendment protection. In R.A.V., the Court entered uncharted First Amendment territory when it added an underinclusiveness standard to the content based test. Under the new standard, St. Paul, Minnesota's hate speech law was found invalid as viewpoint discrimination aimed at a subset of fighting words.

The test adopted by the majority is problematic. Contrary to the majority's conclusion, a review of the Court's prior cases does not support the new test. Moreover, the three exceptions announced by the majority undermine the rationale for the test. Reconciling the test and its exception for Title VII's prohibitions is troublesome because the R.A. V. test is poorly conceived and represents a considerable change in Fist Amendment doctrine. As a result, the test casts a long shadow over related fields of law.