R.A.V. v. City of St. Paul - Oral Argument - December 04, 1991

R.A.V. v. City of St. Paul

Media for R.A.V. v. City of St. Paul

Audio Transcription for Opinion Announcement - June 22, 1992 in R.A.V. v. City of St. Paul

Audio Transcription for Oral Argument - December 04, 1991 in R.A.V. v. City of St. Paul

William H. Rehnquist:

We'll hear argument now in 90-7675, R.A.V. v. St. Paul, Minnesota.

Mr. Cleary.

Edward J. Cleary:

Mr. Chief Justice, and may it please the Court:

Each generation must reaffirm the guarantee of the First Amendment with the hard cases.

The framers understood the dangers of orthodoxy and standardized thought and chose liberty.

We are once again faced with a case that will demonstrate whether or not there is room for the freedom for the thought that we hate, whether there is room for the eternal vigilance necessary for the opinions that we loathe.

The conduct in this case is reprehensible, is abhorrent, and is well-known by now.

I'm not here to defend the alleged conduct, but as Justice Frankfurter said 40 years ago, history has shown that the safeguards of liberty are generally forged in cases involving not very nice people.

He might just as well have well said, involving cases involving very ugly fact situations.

I am here to discuss and to ask the Court to review the Minnesota supreme court's interpretation of a St. Paul ordinance.


Sandra Day O'Connor:

Mr. Cleary, in reading your briefs, it appeared to me that you were arguing a case other than the one presented, which I thought involved the statute as construed by the Minnesota supreme court.

Edward J. Cleary:

--I did go into great--

Sandra Day O'Connor:

Now, do you agree at this point that we are looking at the statute as the Minnesota supreme court has interpreted it?

Edward J. Cleary:


Sandra Day O'Connor:

Not as it could theoretically have been interpreted?

Edward J. Cleary:


The reason I went into as much detail as I did with the ordinance as written was to show the distance from A to B and the attempt to narrowly construe that law.

We have to acknowledge the State has a right under Federal statute to construe their laws.

Sandra Day O'Connor:

And in essence what the Minnesota supreme court appears to have said is, we interpret the law as reaching only those exceptions that the Supreme Court has recognized to the First Amendment... fighting words, for instance, out of our prior Chaplinsky case.

Now, do you agree that that's what they've done?

Edward J. Cleary:

I agree that the Court attempted to narrow the ordinance and in doing so cited Chaplinsky and Brandenburg to this Court.

Sandra Day O'Connor:

Right, and in essence they said what that statute means is what the Supreme Court has permitted in Brandenburg and Chaplinsky.

Edward J. Cleary:

They did cite those cases, Your Honor.

I do believe, however, that the expansive language that was used shows a much broader reach than what this Court indicated in those cases.

In discussing Chaplinsky they cite several times the afflict injury dictum from that case.

That took a standard that was very close to an offensiveness standard and raises the adverse emotional harm idea from the Hustler Magazine case in that the outrageousness standard is raised, and it really opens a hole to the First Amendment.

Sandra Day O'Connor:

Well, if we thought that the Minnesota court recognized that the Minnesota statute reaches only what was said in Chaplinsky could survive and in Brandenburg what survived, would you still be here?

Edward J. Cleary:

I would still object to the ordinance as construed, Your Honor.

Sandra Day O'Connor:

So you would ask us to somehow overturn those older holdings.