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Twenty years beyond the burning cross

Edward Cleary

Twenty years ago on June 22, 1992, the U.S. Supreme Court ruled that the St. Paul Bias-Motivated Crime Ordinance was unconstitutional and set aside the conviction of R.A.V. for burning a cross on an African-American family’s lawn. The ordinance, in pertinent part, outlawed symbols such as burning crosses that would cause anger or alarm on the basis of race. “[S]t. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire,” wrote Justice Antonin Scalia in R.A.V. v. City of St. Paul.

Last week, the attorney who took that case to the high court, now Court of Appeals Judge Edward Cleary, discussed R.A.V. at a CLE.

Cleary and Michael Crommet, assistant state public defender, took the case up pro bono while they continued their regular practices. Then Ramsey County Attorney Tom Foley represented the city of St. Paul.

The Minnesota Supreme Court construed the statute as narrowly to reach only “fighting words” that are beyond the protection of the First Amendment. The decision came out in six weeks (including Christmas and New Years.)

Cleary and Crommet were very concerned about their chances of making out of the ”slush pile” of in forma pauperis petitions for cert. But it did, and Cleary arrived at the court, where the marshall reminded him to “answer the justice’s questions.”

Cleary opened his argument with the statement, “Each generation must reaffirm the guarantee of the First Amendment with the hard cases.” The courtroom was packed and folding chairs were set up in the hallways, which was very unusual, Justice David Stras said. (Stras clerked for Justice Clarence Thomas.)

Cleary was prepared to answer the expected question from Justice Harry Blackmun about the whereabouts of the incident, because he was advised by another lawyer that the justice liked to display his knowledge of St. Paul. Instead, Blackmun directed those questions to Foley, and told him to have the grass cut in Mounds Park.

Eventually, the court unanimously decided that the ordinance was facially invalid. Although no one dissented, there were three opinions which concurred in the judgment, which different justices joining in different parts. “Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the ‘fighting words’ doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses,” Scalia wrote.

When the decision came down, Cleary was in Delphi, Greece, and took three taxis to get to the Today show studio to explain the case. Crommet was trying a drug case in Ramsey County and took the call from the court in the chambers of District Court Judge Salvador Rosas. “It was a whirlwind, with everything going on,” Crommet told Minnesota Lawyer.

Cleary went on to write “Beyond the Burning Cross,” first published in 1994, the story of the case from the very beginning to the very end, for which Bar Buzz awards him our recognition for “A Honey of a Piece of Legal Writing.”

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