If the First Amendment protects political protesters who burn the American flag, must it also protect racist hate-mongers who burn crosses and display swastikas?

That is just one of the questions floating through a major case the Supreme Court will face in its coming term. It’s a case that divides free-speech libertarians from civil-rights groups, and that puts to a severe test our commitment to what Oliver Wendell Holmes called "freedom for the thought that we hate."

The Court’s decision could shed light on the validity of the codes barring various forms of offensive speech that have been adopted by dozens of cities, states, and universities. Spawned by rising concern about outbreaks of racist harassment, the codes have in turn provoked complaints about censorship of "politically incorrect" views.

The facts the Court will confront in R.A. V. v. St. Paul, No. 90-7695, are ugly. A group of white teen-agers burned a cross on the front lawn of the only black family living on a block in St. Paul in the early morning hours of June 21, 1990.

One of the alleged cross-burners, Robert Viktora, was charged under a 1989 city ordinance making it a crime to place on private or public property a burning cross, swastika, or any other "symbol, object, appellation, characterization or graffiti … which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

The main issue for the Court will be Viktora’s claim that he cannot be prosecuted under the hate-speech ordinance because it is unconstitutional on its face.

Two things about the case are clear: Viktora could be prosecuted for criminal trespass, vandalism, and perhaps other routine criminal violations with no constitutional problem; and the St. Paul ordinance-as adopted by the city council-is overbroad because it could reach a wide range of traditionally protected speech and expressive conduct.

 On its face, the ordinance could be used against anybody who flies a Confederate flag, places a sign on his door denouncing the government as racist, or displays a cartoon ridiculing a university’s racially preferential admissions policies or lampooning the Catholic Church for its anti-abortion stance. It might even reach a man wearing a T-shirt inscribed with reasons "Why Beer Is Better Than Women." (Just such a T-shirt earned a suspension for a Tufts student.)

The R.A.V. case is complicated, however, by the fact that the Minnesota Supreme Court adopted a narrowing interpretation to save the ordinance and let the prosecution of Viktora proceed.

The court held that the ordinance applied only to conduct that amounts to "fighting words" or incitement of "imminent lawless action," speech that the U.S. Supreme Court has found to be outside the First Amendment’s protection.

But, as Viktora’s lawyer and the American Civil Liberties Union contend, the St. Paul ordinance was clearly aimed at suppressing the named categories of symbolic speech because of their especially offensive content, not merely because of their potential for provoking violence.

And the Minnesota court’s approach of amending the ordinance by judicial interpretation would allow legislators to pass vague, blunderbuss statutes aimed at censoring any expressive conduct. It would force people to guess when they have crossed the invisible, judicially administered line into the truly forbidden zones of "fighting words" and incitement of "imminent lawless action."

If cross-burning can be proscribed, why not flag-burning, or displaying symbols of solidarity with a foreign enemy, or depicting a popular foreign war as genocide?

To this it might be answered that burning crosses, and racist symbols in general, are so pernicious, so hurtful, and so far removed from rational discourse as to be almost in a category of their own.

It is tempting to classify such expression as entitled only to marginal First Amendment protection and to find that outweighed by the compelling state interest in combating racism.

Racist hate speech does have a unique potential to spread poison through our society. But any effort to establish a category of speech deemed so worthless as to justify content-based censorship will generate a clamor by interest groups to enlarge the forbidden category to include speech that offends their own sensibilities.

So it is that some campus codes aim at speech stigmatizing people on the basis not only of race, but also (to take the University of Michigan rules that were struck down by a federal district judge in 1989) of sex, religion, sexual orientation, national ancestry, age, marital status, handicap, and even Vietnam-era veteran status. And content-based restrictions on speech that begin by suppressing vicious epithets or non-verbal symbols tend to expand toward more trifling matters, or toward censorship of unpopular ideas.

Consider, for example, the boorish T-shirt at Tufts (which, as a private university, is not bound by First Amendment rulings); or the warning in the interpretive guide to the now-defunct University of Michigan speech code against saying in class anything like "women just aren’t as good in this field as men"; or the University of Connecticut’s proscription of "inconsiderate jokes" and "misdirected laughter."

If the Supreme Court buys the Minnesota court’s technique for saving a statute aimed at hate speech, it could also be laying the groundwork for gutting its 1989 and 1990 flag-burning decisions (two of the justices in those 5-4 majorities have retired), along with other First Amendment precedents involving offensive speech.

It would therefore be best if the Court were to strike down the St. Paul ordinance as too broad to be saved by judicial interpretation.

Such a ruling need not leave governments and universities powerless to punish people who seek to terrorize black families by burning crosses in their yards or who harass minorities on campus by hurling racial epithets at them.

The key to constitutional legitimacy in this area is not to censor racist hate speech on account of its content, but to draft laws barring intimidation or extreme harassment of specific individuals on account of their race or other characteristics such as sex, religion, and national origin.

Harassment does not always involve speech; it includes such conduct as pounding on a minority student’s walls or dialing her phone number and hanging up when she comes on the line. The purpose of such a law would not be to suppress speech but to protect individuals from threats of violence and the emotional distress inflicted by extreme abuse, whether it takes the form of pounding on walls or hurling racist slurs and symbols.

The Supreme Court held in Hustler v. Falwell in 1988 that a public figure who has been viciously lampooned in print cannot recover damages for intentional infliction of emotional distress. But this does not mean that the First Amendment protects extreme face-to-face harassment of ordinary individuals.

An anti-harassment law would provide individual victims with broader protection in some ways than does the St. Paul ordinance as limited by the Minnesota Supreme Court.

This is because harassment could be punished even if it could not be characterized as "fighting words"-for example, where the victim is so outnumbered by her tormentors as to make a violent response unlikely.

On the other hand, an anti-harassment statute could not, for example, be constitutionally applied to a group of white supremacists who choose to express their sick ideas by quietly burning a cross in a public park or in front of a college administration building, or who carry signs emblazoned with racial slurs through a minority neighborhood, as a group of Nazis did in predominantly Jewish Skokie, Ill., in a celebrated case in 1978.

Such speech or expressive conduct is, no doubt, especially hurtful to a large group of people. But barring it for that reason, when there are no individual victims of harassment or intimidation, becomes indistinguishable from barring speech for sending an offensive message to the world at large.

And legitimizing that kind of content-based regulation of speech is to be avoided-especially at a time when the Rehnquist Court is sharpening its axes to cut down forests of liberal precedents.