BEYOND THE BURNING CROSS: The First Amendment and the Landmark R.A.V. Case

by Edward J. Cleary ‧ RELEASE DATE: Sept. 1, 1994

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.

Pub Date: Sept. 1, 1994

ISBN: N/A

Page Count: 320

Publisher: Random House

Review Posted Online: N/A

Kirkus Reviews Issue: Aug. 15, 1994

Categories: NONFICTION