증오언론(Hate Speech)과 십자가 소각(Cross Burning)에 관한 판례경향 - R. A. V. v. City of St. Paul 및 Virginia v. Black 사건을 중심으로 -

This study takes general view about 'Cross Burning' mainly of recent case. In the case of RAV v. City of St. Paul, a teenager was charged with violating the city's Bias-Motivated Crime Ordinance after being accused of burning a cross inside the fenced yard of a black family. In a 9-0 decision, the Supreme Court struck down the St. Paul ordinance, a decision which raised a question as to whether many college and university speech codes could be found unconstitutional by the Supreme Court's current majority. In Virginia v. Black, the Court found that government may prohibit cross burning done with the intent to intimidate, but that this intent must be proven in particular case. there were three parts to court's Cross burning holding. First, the court ruled that the government cannot prohibit all cross burning. Second, the court concluded that cross burning done with the intent to threaten is not protected by the First Amendment. Third, the court said that there must be proof in the individual case that the speech was a true threat. thus, the Court Concluded that Klan members could not be punished for burning a cross on a relatively isolated farm. the absence of non-lookers meant that the action could not reasonably be seen as a true threat. but the court remanded the convictions of the men who had burned a cross on the lawn of home owned by an african-american family. the court clearly signaled that this was obviously a true threat. This paper attempts to resolve the dispute over this issue in the light of the RAV decision. The first section summarizes the types of college and university speech codes that exist in the United States. The second section argues that many speech codes would be found unconstitutional under Justice Scalia's majority opinion. The third section analyzes the concurring opinions of other justices.