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The Supreme Court and the Problem of Hate Speech, 24 Capital University Law Review 281 (1996)


Imagine a community that has been traditionally all white. A black family moves into the community. They purchase a house. Some of the neighbors are upset about the arrival of this new family. At first, members of the community are content to show their displeasure by snubbing the new arrivals, but soon the situation changes for the worse. One night, someone places a cross on some public property in front of the black family's home and sets the cross afire. Afterward, the perpetrators are apprehended and prosecuted. They are charged with violating a local statute that prohibits expressive activities (including cross-burning) that cause anger, alarm, or resentment in individuals who are singled out on the basis of their race, religion, or gender. The perpetrators defend themselves on the ground that the statute violates their First Amendment rights.

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