Report No. 267

(i) Content Discrimination and Viewpoint Discrimination:

4.31 There have been two landmark cases that overturned legislations penalising hate speech. In R.A.V. v. City of St. Paul,78 the petitioner was charged for burning a cross on the family lawn of a black family under Minnesota's Bias Motivated Crime Ordinance. The court in this case narrowly construed the fighting word doctrine laid down in Chaplinsky79.

It was held by the court that content based prohibition of speech even for categories of unprotected speech is prohibited under the First Amendment. The ordinance was deemed invalid because it prohibited certain words on selective subject matter, i.e., on the basis of race, colour, creed, religion or gender. Such selectivity was considered as content and viewpoint discrimination; and therefore, invalid under the First Amendment.