*1 Opposed—None. v. Barnes—Chief For Boffard Modification affirmance HANDLER, CLIFFORD, WILENTZ Justices
Justice POLLOCK, O’HERN, and STEIN—7. GARIBALDI
Opposed—None.
Argued Decided 1994. October *4 Stephen argued appellant M. David J. Pascarella the cause attorneys). (Allegro, Nebelkopf, Kearns Pascarella & Jr., Mullaney, argued appellant D. John T. the cause for Steven Vawter. *5 Honecker, Jr., Prosecutor, argued A
Robert Second Assistant respondent Kaye, County {John Monmouth the cause for Prosecu- tor, attorney). Stone, General, Attorney argued Deputy
Debra L. the cause curiae, DeVesa, Jersey Attorney {Fred amicus General of New General, Attorney attorney). Acting opinion of the Court was delivered
CLIFFORD, J. charged are with violations of N.J.S.A 2C:33-10
Defendants
(Section 10)
(Section 11),
Jersey’s
and -11
New
so-called hate-
They
statutes are unconstitution
crime statutes.
contend that the
Amendments to the United
al under the First and Fourteenth
motion to
The trial court denied defendants’
States Constitution.
indictment,
granted
Appellate
Division
leave
dismiss the
certification,
for direct
appeal.
granted
We
defendants’ motion
(1993).
must,
Following, we
Paul, -, (1992), we unconstitutional, and therefore now declare the cited statutes judgment reverse the below.
I spray-painted May person persons a Nazi On (the spray- appearing “Hitler Rules” and words to read swastika “Hitler”) synagogue, Congregation B’nai painters misspelled on a Israel, night same Borough of Rumson. On that same pentagram on the persons spray-painted also a satanic person or church, Nativity, the Church of the driveway of a Roman Catholic neighboring Borough of Fair Haven. in the County Prosecutor’s Office re- In March 1992 the Monmouth identifying defen- confidential information from witnesses ceived Kearns, dants, persons who had Stephen and David as the Vawter driveway synagogue and the of the church. spray-painted the *6 jury a twelve- County grand returned a Monmouth due course Kearns. Counts One against Vawter and count indictment having put in fear charged with another through Four defendants symbol graffiti property, a by placement a or of violence of 10; offense, Five of Section Counts third-degree violation fourth-degree defacement charged defendants with through Eight 11; charged Ten defendants contrary Nine and to Section Counts of 2C:17- third-degree criminal mischief in violation N.J.S.A with 3; charged with con- Eleven and Twelve defendants and Counts through charged in Counts One spiracy to commit the offenses Ten. through Eight of the moved to dismiss Counts One
Defendants ground 10 and 11 violate their on the that Sections indictment rights Amendment under the United States First and Fourteenth 10 reads as follows: Constitution. Section knowingly guilty degree if or is of a crime of the third he A purposely, person placing on or to another in fear of violence bodily by recklessly puts attempts put object, or characterization, a an a an or symbol, appellation public private property graffiti basis violence, to of or hatred on the that another threats contempt exposes religion, including, burning or to[,] or but not limited a cross race, color, of creed guilty his A shall not be of an unless actions cause Nazi swastika. attempt person causing of fear of unlawful violence. bodily a serious and imminent likelihood provides: Section guilty degree if defaces or of a crime of the fourth he
A is purposely person damages, or tenant, of owner or without authorization any private premises religious, educational, residential, memorial, charitable, used for property primarily race, color, of creed or for a assembly particular or cemetery purposes, by persons object, religion placing an characterization, a an a appella- or thereon symbol, graffiti violence, to or hatred on or another threat tion, contempt exposes burning religion, including, to, but not limited a race, color, the basis of creed swastika. cross or Nazi eight counts denying motion to dismiss the first defendants’ court, distinguish trial satisfied that it could of the indictment the R.AV, held 11 from the Paul ordinance Sections 10 and St. appeal we address and 11 constitutional. On this Sections 10 challenge constitutional to those sections. defendants’
II
recognize
power,
police
“[i]n
Our cases
exercise
health, safety or the
may
promote public
enact a
state
statute to
State,
general
Dep’t
welfare.”
Envtl. Protection v. Ventron
(1983).
473, 499,
authority of the
Corp., 94 N.J.
charge the statutes which offend under were under right their fundamental constitutional freedom Amendment. First *7 Rather, proscribe speech per 11 se. 10 and do not Sections they prohibits 10 the prohibit certain kinds of conduct. Section put. of “put[ting] attempt[ing] or to another fear conduct of * * * by property symbol bodily placing violence on a violence, exposes contempt to or hatred on the another threats of color, race, religion, including, but not limited basis of creed or to[,] 11 the burning cross or Nazi swastika.” Section forbids a premises “defac[ing] damaging private property] or or conduct * * * * * * by symbol exposes another to placing thereon a race, color, violence, the contempt or hatred on basis of threats of to, burning cross or religion, including, but not limited a creed or Nazi swastika.” 10 and 11 proscribed by whether the
To decide conduct Sections to fall “sufficiently is imbued elements communication with Amendments,” scope within of the First and Fourteenth the 2727, 2730, 41 Spence Washington, 94 v. 418 U.S. S.Ct. (1974), 842, “[a]n determine intent 846 we must whether L.Ed.2d present” convey particularized message [i]s and whether to a great message a likelihood of understand those who view the have 410-11, 2730, ing at 847. The Id. at it. S.Ct. variety Supreme in a of contexts that conduct Court has concluded expressive protections of the First sufficiently to fall within See, Johnson, e.g., 397, Amendment. Texas v. 491 U.S. 109 S.Ct. 2533, 105 (1989) (holding protected L.Ed.2d 342 burning flag protest government 405, policies); Spence, supra, 418 U.S. 2727, 41 (holding protected L.Ed.2d 842 placing peace symbol flag protest on invasion of killings Cambodia and State); District, Kent Tinker v. Des Moines School (1969) 89 S.Ct. (holding protected L.Ed.2d 731 wearing Vietnam). protest of black armbands to inwar R.A.V., U.S.-, 120 L.Ed.2d Supreme the United Paul, States Court determined that a St. Minnesota, proscribed expres Bias-Motivated Crime Ordinance protected by sive conduct the First Amendment. The ordinance read: object,
Whoever on or places public private property symbol, appellation, graffiti, including, burning characterization or but not to, limited cross or Nazi grounds swastika, which anger, one knows or has reasonable to know arouses alarm or religion gender resentment in others the basis of race, color, creed, guilty commits conduct disorderly and shall be of a misdemeanor. (1990).] Legis. [St § Paul, Minn. Code 292.02 noted, As one court has “While the explicit [R.AV.] Court did not ** * ly prohibited state that acts by the [St. Paul ordinance] are expression cognizable Amendment, by the First such a conclusion necessarily precedes holding the Court’s the [ordinance] facially Sheldon, violate[s] the First Amendment.” State v. (1993). Md. 629 A.2d Taking Court, the lead from States with similar hate-crime statutes have also pro determined that the conduct scribed protected their statutes expression. constitutes For *8 example, Appeals Maryland the Court of of found that the conduct statute, prohibited by its “bum[ing] causing] or any to be burned religious symbol cross or other upon any private public property,” or Ann., 27, 10A, § .Code Crim. qualifies Law Art. speech as Md purposes Sheldon, for of the First supra, Amendment. 629 A.2d Maryland at 757. The court reasoned that “[b]ecause of the[] well known painfully apparent burning connotations of reli gious symbols, there can be no engage doubt that those who ‘convey message,’ or that particularized such conduct intend message.” Ibid. conduct will receive the those who witness the 217, 192, P.2d Similarly, Talley, 122 Wash.2d State v. part (1993), Washington of of concluded speech purposes of the First regulates its hate-crime statute Washington statute reads: “The part That of the Amendment. of malicious harassment following per th[e constitute se violations (b) (a) property of the of burning; or Defacement statute]: Cross symbols or words when the person or a third with the victim or historically traditionally connote hatred symbols or words or 9A.36.080(2). § the victim.” Wash. Rev.Code threats toward “clearly regulates Washington court declared that statute * * at 230. Talley, 858 P.2d protected symbolic (S.C.1993) (finding Ramsey, v. 430 S.E.2d also State See flaming cross on placement burning of or prohibiting statute permission property owner’s property private or without public on conduct). protected symbolic regulates however, crimes, dealing with neces all statutes hate Not purposes the First Amendment. sarily regulate speech for Maryland Paul ordinance and Although enactments like the St. regulating expres viewed as Washington statutes have been Amendment, found that courts have protected by the First sion target mere con penalty-enhancement statutes or victim-selection punish bias in expression. Those statutes not duct and do restrict penalty for that by enhancing the for a crime the motivation U.S.-,-, Mitchell, See, e.g., v. Wisconsin crime. (1993) (finding that statute 124 L.Ed. 2d race, selecting target crime based
increasing penalty for
orientation,
origin,
color,
disability,
national
religion,
sexual
First
unprotected
ancestry
person “is aimed at conduct
Miccio,
Amendment”);
589 N.Y.S.2d
155 Misc.2d
People v.
(Crim.Ct.1992)
(finding
that elevates
that statute
764-65
aggravated
harassment
simple harassment
to crime
crime of
conduct);
State v.
present
targets
motive is
when bias
(1992),
Plowman,
(finding that
P.2d
564-65
314 Or.
*9
felony
statute
crime of assault from misdemeanor to
that elevates
race, color,
perception
when defendant
because of
of victim’s
acts
religion,
origin,
against
national
or sexual
is directed
orientation
—
denied,
conduct),
U.S.-,
cert.
113 S.Ct.
125 L.Ed.2d
(1993); Tally, supra,
(finding
Ill
although governments
has
observed
expressive
in
regulating
hand”
conduct than
have a “freer
may
“proscribe particular
regulating
speech, they
not
con
pure
Johnson, supra,
expressive
because it has
elements.”
duct
“
2540,
406,
at
at 354-55.
‘A law
at
109 S.Ct.
U.S.
*
**
must
be
at
nature of conduct
directed
the communicative
showing
need
the First Amend
justified
substantial
of
”
406, 109
2540,
requires.’
Id at
at
105 L.Ed.2dat 355
ment
S.Ct.
Watt,
v.
F.2d
Community
Non-Violence
(quoting
Creative
for
(D.C.Cir.1983) (Scalia, J.,
586,
dissenting)).
622-23
“
governmental
[behind
11]
If
interest
Sections
‘the
”
407, 109
suppression
expression,’
id. at
of free
is unrelated to the
(quoting United States v.
at
power
governmental
free
if
is unrelated to the
interest;
suppression
interest
alleged
and if
incidental restriction on
First Amendment freedoms
expression;
greater
is no
than is essential
to the furtherance of that
interest
[O’Brien,
680.]
If 10 and 11 relate to the Sections free expression, if we must decide the statutes are content neutral or scrutiny content based to determine the level of that we should apply principal inquiry under the First Amendment. “The determining content-neutrality government is whether the adopted regulation disagreement has because with Racism, conveys.” message Against it Ward v. Rock (1989). 781, 791, 2746, 2754, 105 L.Ed.2d If a neutral, time, regulation place, is content “reasonable or manner appropriate. Community restrictions” are Clark v. Creative Non-Violence, 3065, 3069, *11 468 U.S. 82 L.Ed.2d (1984). Time, place, regulations or manner are reason they “narrowly significant if govern able are tailored to serve a interest, they open ample mental [ ] and leave alternative channels * * for communication Ibid.
If, however, we decide that Sections 10 and 11 relate to the based, suppression expression they of free and that are content judicial scrutiny the strictest is warranted: “Content-based stat R.A.V, presumptively utes are invalid.” 505 U.S. 2542, 120 scrutiny, S.Ct. at L.Ed.2d at 317. To survive strict a regulation “necessary compelling must be to serve a state interest narrowly and must Perry [it be] drawn to achieve that end.” Ass’n, 37, 45, 103 Perry Educ. Ass’n v. Educ. Local (1983). 74 L.Ed. 2d We conclude Sections 10 and are content-based adopting Legislature restrictions. those sections the was obvi ously expressing disagreement message conveyed by its with the regulate. the argues conduct the statutes The State that the primarily against statutes are “directed they conduct” and that only “incidentally sweep up” speech. Although legislative the instructive, history persuade is not other factors us that the State’s characterization of Sections 10 and 11 is incorrect. First, proscribing the same conduct as Jersey had statutes New in of those sections 1981. 11 before the enactment 10 and Sections public private property or “placing with Section 10 deals characterization, graffiti object, appellation an or symbol, an * * damag[ing] “defac[ing] with or *.” Section deals * * Yet, pro- other statutes premises property private or first, stat- exactly conduct: the criminal-mischief scribe the same ute, 2C:17-3, damaging tampering or with the N.J.S.A prohibits (the defendants, charged Vaw- tangible property of another State Kearns, in addition to Sections 10 and under that statute ter and 2C:18-3, statute, second, N.J.S.A 11); for- criminal-trespass the one is remaining any structure that one knows entering or bids enter; finally—if the offense is privileged to not licensed or appropri- of the incident are burning if the conditions cross 2C:17-1, statute, starting a criminalizes N.J.S.A ate—the arson bodily fire, danger or person in of death thereby putting another danger building or structure injury thereby placing a Thus, Legislature enacted Sections damage or destruction. messages. expression of biased specifically to condemn the and 11 have the State could of those statutes Even in the absence religiously- painting racially- or conduct of punish continued then-existing laws. burning under or of a cross graffiti offensive signed Second, Byrne, who Sections of Governor the statements law, surrounding signing and the circumstances 10 and 11 into and 11 Legislature adopted Sections 10 finding support a messages. As religiously-biased racially- or to denounce reasons, veto, for technical in his conditional declared *12 Governor statutes: version of the an earlier religious ethnic or racial, allow intimidation of must not Our democratic society All vent their hatred.
groups use violence or would unlawfully those who would religious groups in our must able to be racial, participate ethnic members distinguishes This is what of security. and with a'full sense in freedom society this bill And this is what preserves. America. (June 1981).] Message Bill No. to [Governor’s Assembly Veto SSí his, general, statement, declared By the Governor purpose to announce its Legislature’s was understanding that the Moreover, messages. of biased expression disagreement with the 10, 1981, Byrne signed the statutes into Governor September Teaneck, synagogue that Congregation Yeshrun in a law at B’nai in October 1979. with swastikas and obscenities had been defaced (at ceremony which the Governor and the special signing That Assemblyman Feld- legislation, Baer and Senator sponsors of the man, the statutes were aimed spoke) demonstrates also that Thus, messages hatred. we conclude specifically denouncing by enacting Legislature, Sections the Governor and the religious regulate expressions of racial and intended to hatred. hardly purpose could be
The intent and behind the statutes yet And the unmistakable fulfillment of that more laudable. 10 and 11 content-based restric purpose is what renders Sections Ward, emphasized supra, in As the tions. principal 105 L.Ed.2d at “The 109 S.Ct. at neutrality inquiry determining in content is whether the regulation speech because of dis government adopted has a message conveys. government’s pur agreement with the it enacting controlling consideration.” That pose statute] [in inquiry, and 11 are content based is not the end of our Sections 10 invalid, Although restric presumptively content-based however. permissible in instances. are nevertheless some tions
IV
Ordinarily,
point
we would ascertain at this
whether Sections 10
narrowly
compelling
State interest.
and 11 are
tailored
serve
however,
reluctantly
applying
scrutiny,
depart
we
Before
strict
jurisprudence
we consider traditional First Amendment
from what
analyze
light
five-member
our statutes
Justice Scalia’s
R.A.V.,
U.S.-,
majority opinion
Although
to confess that our
71 States) Jersey Supreme that New [United Court is “bound the Supreme interpretation Court’s application of the First impact upon Amendment and its the states under the Fourteenth Amendment”), denied, 965, 2045, cert. 72 (1982). L.Ed.2d 490 R.A.V.,
In
Supreme
the United States
Court concluded that the
Paul, Minnesota,
Bias-Motivated Crime Ordinance of St.
is uncon
prohibits
permitted speech solely
stitutional because “it
otherwise
subjects
on the basis of the
the
addresses.” 505 U.S. at
-,
2542,
L.Ed.2d at 315 n. St. Paul chose to the defendant under Ordinance, quoted supra, its Bias-Motivated Crime A .2d at 353. challenged
The defendant the St. Paul ordinance as “substan tially impermissibly overbroad and content-based” under the First Amendment. 505 U.S. S.Ct. at 120 L.Ed.2d at defendant, charge against The trial court 315. dismissed the reversed, Supreme holding but the Minnesota only fighting proscribes only ordinance reaches words and thus expression unprotected by that remains First Amendment. (1991). of R.A.V., In re 464 N.W.2d The Minne Welfare Supreme sota Court concluded that because the ordinance was interest, narrowly promote compelling government tailored to it survived constitutional attack. Id. at 511. ordinance, invalidating accepted Justice Scalia as authori the Minnesota statement that “the ordi
tative
Court’s
expressions
‘fighting
reaches
those
that constitute
nance
meaning Chaplinsky[
Hampshire,
words’ within the
v. New
(1942)
766, 769,
86 L.Ed.
(defining “fighting
injury
words” as “conduct that itself inflicts
violence”)
R.A.V., supra, 505
].”
tends to incite immediate
U.S. at
*14
2542,
then
-,
at 316. Justice Scalia
112
120 L.Ed.2d
S.Ct. at
regulations
presump
are
although “[c]ontent-based
reasoned that
id,
317,
2542,
at-,
invalid,”
L.Ed.2d at
112
at
120
tively
S.Ct.
speech in a few
“the content of
society permits restrictions on
our
* *
2542-43,
-,
112
at
120
Id. at
S.Ct.
limited areas
*.”
572, 62 S.Ct.
Chaplinsky, supra, 315 U.S. at
(citing
at 317
L.Ed.2d
1035).
769,
obscenity, defama
Those areas include
L.Ed. at
at
86
2543,
-,
tion,
112
at
120
Id. at
S.Ct.
fighting
words.
although the
pointed out that
.2d at 317. Justice Scalia
L.Ed
catego
proscribable
those
Supreme
has sometimes said that
Court
constitutionally protected
area of
ries are “‘not within the
ibid,
States,
476, 483,
”,
speech’
(quoting Roth v. United
1498,
(1957)),
1304, 1308,
proposition
1 L.Ed.2d
1506
77 S.Ct.
2543, 120
at-,
L.Ed.2d at
literally
Id.
112 S.Ct. at
is not
true.
fact,
proscribable speech can “be made
those areas of
317-18.
* *
at-,
Id.
content discrimination
vehicles for
Thus,
2543,
Supreme Court reads the
L.Ed.2d at 318.
the
at
120
impose a content-discrimination limitation
Amendment to
First
Id, at-,
speech.
S.Ct.
prohibition
proscribable
a State’s
2545-46,
Applying
foregoing principles,
Justice Scalia determined
unconstitutional,
facially
the St. Paul ordinance is
even if read
as construed
Supreme
the Minnesota
Court to reach
“fighting
words.” Id.
Justice Scalia found that the St. Paul ordinance does not fall any within exceptions of the prohibition to the on content discrimi- nation. The ordinance does not exception fit within the first content speech proscriba- discrimination—the entire class of is ble—because fighting categorically words are excluded from the of the First protection Amend- (and [because] ment their content embodies a intolerable particularly socially
unnecessary)
expressing
mode of
whatever idea the
wishes to
St.
speaker
convey.
* *
singled
Paul has not
out an
offensive mode of
especially
Rather,
*.
expression
fighting
it has
messages
words of
proscribed
whatever manner that communicate
of
gender,
religious
racial,
or
intolerance.
[Id. at-,
at 2548-19,
324.]
120 L.Ed.2d at
Nor does the ordinance fit within
exception—discrimi
the second
only
nation aimed
secondary
at
effects—because neither listeners’
speech
reactions to
nor
impact
speech
the emotive
of
is a second
ary
effect.
Id.
at
S.Ct
120 L.Ed./2d at 325
(citing
Barry,
1157, 1163-64,
Boos v.
(1988)).
Finally,
L.Ed .2d
344-45
Justice Scalia concluded
hardly
that “[i]t
needs discussion that the ordinance does not fall
within
general exception
[the third] more
permitting
selectivity
all
any
beyond
that for
suspicion
reason is
suppression
of official
-,
of ideas.” Id at
But Justice against only those threats the President not criminalize policy his on aid to inner cities.” Ibid. mention shortcomings Attorney argument in the General’s We see two threats, permissible regulations are that because our statutes First, exception. first do not they fit within the the statutes prohibits “put[ing] at- prohibit Section 10 or threats. bodily put placing tempt[ing] to another fear of violence symbol public private property exposes another to color, violence, race, contempt on the basis threats or hatred * * added.) pre- religion (Emphasis Section 11 creed or *16 * * * damaging] private premises prop- “defac[ing] or or cludes * * * symbol exposes erty placing thereon a violence, contempt or hatred on the basis another to threats of of * * added.) color, Thus, race, religion (Emphasis *.” creed or only violence proscribe 10 and 11 not threats of but also Sections Moreover, expressions contempt on close of and hatred. examina- language may pose vagueness and “contempt and hatred” tion issues, however, address overbreadth issues. We need not those apply limiting construction to restrict because we could only of of 10 and 11 to threats violence. application Sections But even if we were somehow to construe Sections 10 and proscribe only violence, 11 to threats of we would encounter problem: proscribe another our statutes threats “on the basis of race, color, religion.” ruling creed or Under the Court’s R.A.V., viewpoint-discrimi that limitation renders the statutes natory impermissible. Although may prohibit thus a statute threats, may prohibition only it not confine the kinds certain of objectionable Thus, subject threats on the basis of their matter. exception the first cannot save Sections 10 and 11. exception
Nor does the second
for discrimination aimed
only
secondary
at
effects rescue Sections 10 and 11. The
secondary
arguably
target
effects the statutes
could
are the same
R.AV.,
secondary
targeted
effects the St. Paul ordinance
namely, “‘protection] against
person
the victimization of a
or
persons
particularly
who are
vulnerable because of their member
”
ship
group
historically
against.’
in a
has been discriminated
(quoting
S.Ct. at
L.Ed.2d at 325. R.AV.,
Finally, just inas our statutes do not fall within third, general exception more for discrimination that is unre noted, suppression supra lated to As official ideas. we Legislature 642 A.2d at enacted 10 and 11 Sections Thus, specifically messages religious to outlaw of racial or hatred. say we cannot that Sections 10 and 11 are unrelated to the official suppression of ideas. support
The decisions of other State courts our conclusion that any exceptions Sections 10 and do not fall within to the Sheldon, prohibition on content discrimination. See 761-62, Maryland precluding (concluding A.2d at statute “burn[ing] caus[ing] any religious be cross other or burned or symbol upon any private public property” fall within did not
76 Talley, P.2d at
any exceptions); supra, R.AV. 858 231 of the “(a) Burning; (finding Washington prohibiting Cross that statute (b) person property of or a third or Defacement of the the victim symbols historically symbols or or words or with words when victim” traditionally or threats toward the falls connote hatred R.AV.). M.S., But see In re 22 squarely prohibitions within (finding (Ct.App.1993) 22 Cal.App.4th Cal.Rptr.2d 570-71 may “by providing person that no force or that California statute with, force, willfully injure, op or interfere threat of intimidate * * * any person of the press, or threaten other because other race, color, ancestry, origin, sexual person’s national orienta * * * tion,” upon that “no shall be based person convicted alone, speech itself threatened violence” falls [unless] the exceptions). within all three R.AV.
n V
scrutiny requires
regulation
narrowly
that a
be
Strict
Freeman,
v.
compelling
to achieve
state interest. Burson
drawn
(1992).
1846, 1851, 119
5, 14
U.S.-,-,
S.Ct.
Supreme
exacting
scrutiny
inquiry
is the
under strict
So
rarely
“readily acknowledges that a
survives
law
such
Court
* *
at-,
scrutiny
-,
at 326.
the St. Paul ordinance is underinclusive and fails
Sheldon,
strict-scrutiny analysis.
Accord
629 A.2d at
(finding
Maryland’s
762-63
that
scrutiny);
statute fails strict
Tal
ley, supra,
(finding Washington
We conclude that Sections 10 and 11 are underinclusive impermissible and thus under R.AV. Sections and serve compelling the same state interest the St. Paul ordinance protecting rights served: groups human of members of historically object have been the of discrimination. But our hate- statutes, ordinance, crime like the narrowly St. Paul are not tailored. R.AV. dictates that where other content-neutral alter exist, topics natives a statute directed at impermissi disfavored is language ble. Inasmuch as the of Sections 10 and 11 limits their race, color, creed, scope topics to the religion, disfavored the statutes offend the First Amendment.
VI judgment of the trial court is reversed. The cause entry judgment remanded to the Division Law there of dis- missing through eight counts one of the indictment and for further proceedings may appropriate remaining as be on the counts.
STEIN, J., concurring. join opinion declaring
I the Court’s unconstitutional N.J.S.A -11, Jersey’s 2C:33-10 and New so-called hate-crime statutes. Jersey’s Variations of New statutes have been enacted in most states, reflecting a national consensus that bias-motivated violence or bias-motivated conduct that tends to incite violence has reached warranting epidemic proportions widespread enactment of criminalizing agree especially laws such behavior. I with the acknowledgment, Court’s ante at 642 A.2d at that we Jersey’s declare New hate-crime statutes unconstitutional because Supreme compelled by the Court’s we are to do so United States Paul, -, City St. decision R.AV. v. (1992),
2538, 120 L.Ed.2d a decision that the Court character depart reluctantly from requiring “we what we izes as one * * jurisprudence Amendment *.” consider traditional First at 357. Ante A.2d disagreement dismay separately explain my over
I write
My
Supreme
decision in RAV.
views
the United States
Court’s
concerning
opinion RAV.
the merits of the
Court’s
course,
are,
disposition
appeal.
our
of this
irrelevant
interpretations
turn on
the United States Constitu
cases that
tion,
simple—to
decisions of our
our mandate is
adhere to the
*19
Court,
authority
highest
by
final. Criticism
nation’s
whose
is
judge
Supreme
court
to a
decision inter
state
addressed
might
regarded
intemper
as
preting the federal
be
Constitution
ate,
authority
tending “inevitably]
of
[to shadow] the moral
182,
Supreme
Hempele, 120 N.J.
Court.” State v.
United States
(1990) (O’Hem, J.,
concurring
part
in
*20 Another, disconcerting, aspect and more of the Court’s R.AV., given significance, decision in severity its national is the intensity concurring the criticism that the four members adopted by addressed to majority opinion. the rationale joined judgment only, opinion. Those members the Court’s not its objections convey Their opinion to the Court’s a sense astonish- unexpected ment about the Court’s treatment the First Amend- questions. ment Justice White observed: majority long-established case, But in the casts aside First Amend- present briefing ment doctrine without the benefit of an untried This is adopts theory. judicious proceeding, reasoning reaching and the Court’s its hardly way wrong. result is transparently [********] disregarded has the Court two established of First Amendment Today, principles providing law without arid, coherent Its decision is an theory. replacement judges doctrinaire driven the irresistible to interpretation, by frequently impulse
tinker with the First Amendment. The decision is mischievous at best and will
join
judgment,
confuse the lower courts.
I
the
but not the
surely
the
folly
opinion.
[505
at-,
-,
339.]
U.S.
of two possibilities: disheartening. is Either result [********] significantly will not alter In second is the this case the instance possibility jurisprudence, regarded will as an aberration—a but, instead, Amendment be First an ordinance the Court doctrine strike down whose case where manipulated greater threats assaults are it that racial and verbal opposed, namely,
premise fighting I that the Court has been distracted from its harm than other words. fear the over correct mission the to decide issue “politically by temptation proper If this “cultural neither of which here. is the is presented speech” diversity,” regrettable. meaning of it is even more today’s opinion, perhaps are a law that I no First Amendment values that compromised by prohibits see driving burning on from out of their homes crosses their hoodlums minorities great preventing from I in the of Saint Paul lawns, but see harm people specifically punishing fighting prejudice words that so their the race-based community. 339.] at L.Ed.2d at [505 U.S. 112 S.Ct 2560-61, concurring emphasizes, as opinion of Justice Stevens did White’s, generally- departure the of R.AV.’s from Justice extent principles: accepted First Amendment category of the Court holds, Within a “proscribable” particular expression, government at all. This must either all no speech aspect proscribe speech ruling misunderstands role and constitutional status the Court’s the fundamentally regulations nature of of content-based conflicts with the First very speech, jurisprudence, of First Amendment well-settled Amend- disrupts principles ment law. [********] ruling—that regula- “[c]ontent-based the central of the Court’s sum, premise but lacks in our tions are invalid”—has simplistic support presumptively appeal, jurisprudence. make the Court worse, First Amendment To matters ex- today categories of and, this overstated claim to reach hitherto tends unprotected although doing of settled the so, wreaks havoc in an area law. Finally, recognizes its its new those undermine exceptions principle, exceptions very directly, conclusion that St. Paul ordinance unconstitutional. Stated majority’s cannot withstand scrutiny. position 2566, 120 L.Ed.2d 341-42, 345-46 at [505 at-,-, 2562-63, U.S. 112S.Ct omitted).] (footnote view, and, holding my
My focus is on central basic opinion: in the R.AV. St. Paul Bias-Motivated flaw regulates impermissibly speech based on its Crime Ordinance content, L.Ed.2d at *21 ibid., viewpoint, and on its ground cannot be sustained on the narrowly that the ordinance is tailored to compelling serve state at-, 2549-50, 120 interests. Id. 112 S.Ct. at L.Ed.2d at 325-26.
I Using language substantially similar to that contained in New Jersey’s statutes, -11, hate-crime N.J.S.A 2C:33-10 and the St. Paul, Minnesota, Ordinance, Bias-Motivated Crime invalidated RAV., provided: the Court in object, “Whoever on or places public private property symbol, appellation, graffiti, including, burning characterization or but not to, limited cross or Nazi grounds which anger, swastika, one knows or has reasonable to know arouses religion gender alarm or resentment others the basis of race, color, creed, guilty
commits
conduct and shall be
of a
disorderly
misdemeanor.”
S.Ct 120 (quoting
[/d
at 315
St. Paul, Minn.
Legis.Code § 292.02
(1990)).]
The
prosecuted
defendant
RAV. was
under the St. Paul
he,
Bias-Motivated Crime Ordinance
along
because
with some
teenagers,
during
had
night
burned a cross
inside the fenced
yard
occupied by
of a house
family.
an African-American
The
trial,
charge
trial court
concluding
dismissed the
before
that the
prohibited expressive
ordinance
conduct in violation of the First
Supreme
reversed,
Amendment. The Minnesota
construing
Court
“
prohibiting only
the ordinance as
‘fighting words’—conduct that
injury
itself inflicts
or tends to incite immediate violence.” In re
R.AV.,
(1991)
(citing Chaplinsky
N.W .2d
Welfare of
L.Ed,
568, 572,
Hampshire,
Newv.
315 U.S.
(1942)).
1031, 1035
Concluding that the
prohibited only
ordinance
unprotected by
conduct
the First Amendment
“narrowly
and was
tailored
accomplish]
compelling governmental
[to
inter
in protecting
community against
est
bias-motivated threats to
order,”
public safety and
Supreme
the Minnesota
Court sustained
validity
of the St. Paul ordinance.
Id at 511.
majority opinion
R.AV.
declined to address
invalidly
contention that the St. Paul ordinance was
overbroad.
398
Although
it
that is
also makes criminal
the ordinance reaches conduct
unprotected,
feelings,
resentment,
offense,
causes
hurt
only
conduct that
expressive
the First Amendment. The ordinance is therefore
overbroad
fatally
protected
on its
and invalid
face.
(citations omitted)
[M
2559-60;
112
at
(quoting Chaplinsky, supra,
Having
words,
premise
fighting
established its basic
that even
category
generally-proscribable speech,
can be a vehicle for
discrimination,
opinion
content
the R.A.V.
concludes that the St.
facially
impermissibly
Paul ordinance is
unconstitutional because it
subject
discriminates
speech.
based on the
of bias-motivated
Id.
2547-48,
Amendment not express subjects.” speakers views on tions on those who disfavored effect, regulate In concluded that St. Paul could Ibid. the Court none, single regulation but not out for fighting all words or could race, only fighting provoke those words that violence based on color, creed, religion, gender. or also then determined that the St. Paul ordinance
The Court viewpoint constituted discrimination: religion, “Fighting gender— race, color, words” that do not themselves invoke seemingly [at mother, be usable person’s example—would aspersions upon arguing of racial, color, in the of those etc. tolerance placards pleasure] favor * * * but could not be used St Paul has speaker’s opponents. equality, fight requiring side no such license one of a debate while authority freestyle, follow Rules. other to Marquis Queensbury [/bid.] majority opinion respect In viewed the Paul ordinance St. taking dispute targets. in a and their as one sides between racists race, “By prohibiting fighting allowing other words based while words, fighting only fighting words the law barred (and fighting targets) racists not the words that their would wish Kagan, Changing Elena Faces First Amendment to use.” Paul, Sullivan, Neutrality: R.A.V. v. Rust v. and the Problem St. Underinclusion, Sup.Ct.Rev. Content-Based 70. provoke words on the prohibiting fighting violence race, creed, color, religion, gender, *24 the Paul basis of St. obviously regulates “speech” on its ordinance based content: speech provokes violence it is to the five that because addressed barred; subjects prohibited speech provokes that be- is violence affiliation, subjects—political cause other union it is addressed to homosexuality, example—is membership, or not barred. Aside for Stevens, although problems, from Justices White and overbreadth reasons, upheld would the ordinance even for different have though they acknowledged regulated speech on its that it based White, majority’s In the view of Justice the concession content. regulates only fighting Paul words which that the St. ordinance * * * apply expres- “the their First Amendment does not because
85
minimis
sive content is worthless or
society,”
of de
value to
505
at-,
2552,
328, (White, J.,
U.S.
violating the First
the content of the subset is
definition
Amendment;
worthless
undeserving
of constitutional protection.
[Id.
at-,
330.]
S.Ct at
120 L.Ed.2A at
addition,
urged
In
Justice White
that even if the ordinance
regulation
protected expression,
constituted a content-based
it
strict-scrutiny
regulation serving
would survive
review as a
compelling
narrowly
purpose.
state interest
drawn to achieve that
Rejecting
majority’s
the
observation that the St. Paul ordinance
scrutiny
not
could
survive strict
because
ordinance not
“[a]n
topics
precisely
limited to the favored
would have
the same
id,
effect,”
at-,
2541, 120
beneficial
S.Ct. at
L.Ed.2d at
Freeman,
-,
Justice White relied
Burson v.
(1992),
plurality
sustained a Tennessee statute the solicitation of votes campaign and the distribution of literature within one-hundred polling place. Noting feet of the entrance to a that the statute only political speech, Burson restricted White observed Justice plurality the Burson had that rejected legislation failed First Amendment proposition
squarely
it
in broader,
review because
could have been drafted
content-neutral
terms:
laws to address
that confront
them. The First
“States adopt
problems
regulate
Amendment does not
States to
that do not exist"
require
problems
(quoting
[505
Stevens’s view is consistent with
fighting-
urged
of or
reliance on the
abandonment
diminished
Tribe,
See, e.g.,
H.
American Constitu
words doctrine.
Laurence
(2d
1988);
Gard,
Law,
12-18,
Stephen
§
929
ed.
W.
tional
at
n. 9
(1980);
Wash.U.L.Q.
Speech,
Free
58
531
Fighting
as
Words
Karst,
First
Equality
Principle
in the
Kenneth L.
as Central
(1975);
Strossen,
Amendment,
20, 30-35
Nadine
43 U.ChiL.Rev.
Regulating
Speech
Campus:
Proposal?,
on
A
1990
Racist
Modest
484,
categorical approach
one
Rejecting
Duke L.J.
508-14.
as
at-,
subtlety
at
clarity,”
505 U.S.
112 S.Ct.
that “sacrifices
346,
2566,
similarly rejected as
120
Stevens
L.Ed.2d
Justice
majority’s
regulations,
view that content-based
“absolutism”
words,
fighting
presumptively invalid.
112
even of
are
Id.
2564,
Observing
L.Ed.2d
that selective
S.Ct.
120
at 343.
unavoidable,
regulation
speech based on content was
Justice
of
upheld
frequently had
content-based
noted that the Court
Stevens
Ibid,
Found.,
(citing
v.
438
regulations
speech.
FCC Pacifica
(1978)
726,
3026,
restric
(upholding
As an alternative to Justice White’s
pre
majority’s
regulation
formulation that content-based
invalid,
sumptively
Justice Stevens observed
the Court’s First
jurisprudence
complex
Amendment
reveals “a more
and subtle
regulat
analysis,
considers
content and context of the
one that
speech,
scope
speech.”
of the
ed
and the nature
restriction on
(1989)). Moreover,
regulated
he noted that
the context of the
Thus,
speech
scope
protection
affects the
afforded it.
“the
‘
’” ibid,
audience,”
Lehman,
presence
“captive
(quoting
of a
su
302,
2717,
pra,
(quoting
S.Ct. at 120 L.Ed.2dat that restrictions based viewpoint regarded pernicious on are as more than those based at-, 2568, 120 only subject on matter. Id. S.Ct. at L.Ed.2d Finally, scope at 349. Justice Stevens noted that the of content- at-, validity. based restrictions affect their Id. at 2569, 120 at 349. analytical illuminates the critical
That framework distinction between Justice Stevens’ evaluation the St. Paul ordinance and majority. approach presumptive that of the The Court’s categorical. majority concluded that the Paul ordinance St. fighting distinguishes—as surely it does—between words ad- subjects fighting to the restricted and all other words. dressed content, Viewing impermissibly as one based that distinction rejected narrowly the contention that the ordinance is compelling “[a]n tailored to serve state interests because ordi- * * * topics precisely would have nance not limited to the favored Id. 112 S.Ct. at the same beneficial effect.” L.Ed.2d at 326. contrast, first the content and sharp Justice Stevens assessed activity, noting that regulated of the ordinance
character words,” only speech, namely, fighting applies to “low-value “ only regulates ‘expressive conduct than [rather] that it spoken Id. 112 S.Ct. at word.’” written Johnson, 406, 109 (quoting L.Ed.2d at 350 S.Ct (alterations 355) original). Concerning 105 L.Ed.2d at context, “in he noted that the ordinance restricts *27 ibid, situations,” potentially violent such as confrontational cross-burning in illustrated the case at hand: “The this single family as to a African-American case—directed it was nothing a crude form of trapped in their home—was more than crossburning message a of physical intimidation. That this sends hostility automatically complete it with does not endow racial Finally, protection.” Ibid. Justice Stevens conclud constitutional speech subject is on Paul’s on based neither ed that St. restriction viewpoint, on harm nor “but rather the basis of the matter only subcatego speech regulates causes. ordinance [T]he color, ‘race, creed, injuries ry expression on of that causes based subcategory gender,’ involves discussions religion or not a those Id. 112 S.Ct at that concern characteristics.” L.Ed.2d at 120 350-51.
II content, matter, subject Regulation of or based scholarly outpouring commentary. of viewpoint has attracted an Farber, See, e.g., Regulation Daniel A. Content and the First View, (1980); Karst, 68 A Geo.L.J. 727 Amendment: Revisionist Redish, 20; H. supra, 43 U.Chi.L.Rev. Martin Content Dis (1981); Analysis, 34 in First Amendment Stan.L.Rev. tinction Schauer, A Categories Play and the Amendment: Frederick First Acts, (1981); III, Stephan Paul B. Three Vand.L.Rev. in Discrimination, 68 Va.L.Rev. The First Amendment and Content (1982); Stone, Geoffrey Regulation R. Content and the First Amendment, (1983); Mary Geoffrey 25 Wm. & L.Rev. 189 R. Stone, Speech Restrictions Because its Content: The Pecu of Restrictions, Subject-Matter liar Case 46 U.Chi.L.Rev. 81 (1978); Words, Caste, Sunstein, Conduct, R. Cass 60 U.ChiL.Rev. (1993). Although variations in the formulation of content- regulation speech may present based difficult and controversial questions, pragmatism First Amendment courts need not abandon “arid, interpretation.” and common sense in favor of doctrinaire R.A.V., supra, S.Ct. at 120 L.Ed.2d at (White, J., concurring). Even those commentators who advo categorical approach adjudication cate a to First Amendment acknowledge enough joints play the need to allow for in the results: avoid anomalous regulation
What mean when we we towards content that we express animosity subcategories not within should create the first amendment that are inconsistent Moreover, with the theoretical of the of freedom of we premises concept speech. subcategories that, do not wish to create either because of the inherent indetermi- category describing of the or because of the nacy difficulty verbally subcategory, an create undue risk of While these are oversuppression. powerful reasons, are not so conclusive that should case. When they they prevail every creating strong subcategory themselves, reasons and when the present dangers uttering can eliminated, be minimized the mechanized “content regulation” need not the embodiment in first doctrine of the amendment prevent fact that there are different varieties of plain speech. (footnote omitted).] [Schauer, 34 Vand.L.Rev. at 290 *28 Although Supreme the divided five to four on the consti- Court tutionality (apart of the St. Paul ordinance from the issue of overbreadth), superiority balancing I find incontestable the of the by compared categorical Justice with the test advocated Stevens majority. presumptive approach adopted by the R.AV. To presumptively it fails hold the St. Paul ordinance invalid because race, fighting topics to criminalize words addressed to other than color, creed, only religion, gender ignores or not established First experience jurisprudence Amendment but also common as well. majority pains classify primary The RAV. takes to the vice of not but as “content the St. Paul ordinance as “underinclusiveness” view, imposes “In not discrimination”: our the First Amendment an limitation a ‘content discrimination’ ‘underinclusiveness’ but upon prohibition proscribable speech.” a State’s limitation R.AV., at supra, 505 S.Ct. at majority by explains 320. when the R.AV. what it means But discrimination, explanation “dis content its underscores that the facially renders Paul’s ordinance crimination” content that St. solely expanded Paul’s to have the invalid derives from St. failure fighting the to criminalize words addressed breadth of ordinance words, subjects—in to ordinance is “underinclu other other the sive”: Although anger, or ordinance, the in the “arouses alarm resentment phrase limited Minnesota Court’s construction to reach has been the others,” remaining, “fighting or amount words,” those to the symbols displays “fighting make that the words” unmodified terms clear ordinance applies only religion or race, color, creed, or “on the basis of insult, violence, provoke gender.” containing severe, abusive no matter how vicious or invective, Displays are unless addressed to of the disfavored are one specified topics. permissible they “fighting to use words” in with other ideas—to Those who wish connection express affiliation, for basis of union
hostility, example, political membership, not First not covered. The Amendment does St. Paul permit homosexuality—are on those who views on disfavored special prohibitions speakers express impose subjects.
[Id, at 323.] 112 S.Ct 120 L.Ed.2d R.AV. conclusion that First Amendment “[t]he But the Court’s impose prohibitions permit special does not St. Paul to on those speakers express subjects” very begs who views on disfavored differently in question has resolved a number of involving regulations speech: cases underinclusive whether targeting category law some all as a but not in a invalid by deferring or is to the content-based discrimination sustainable legislative judgment concerning which of several causes of Lee, problem government regulate. elects to See William E. Underbreadth, Wash.U.L.Q. First Amendment Doctrine of (1993); Stone, Mary 25 Wm. L.Rev. 202-07. & Characteristically, regu has underinclusive the Court invalidated justifica governmental under in which lations circumstances favoring singling tion out burdened class or the excluded See, e.g., City class is considered insufficient. Cincinnati v.
91 1505, -, Network, Inc., 123 113 S.Ct. Discovery 507 U.S. (1993) (invalidating ordinance intended Cincinnati L.Ed.2d 99 public on prohibiting use of newsracks by promote aesthetics permitting but use dispense publications property to commercial B.J.F., 491 newspapers); Florida Star v. dispense of newsracks to (1989) 443, 2603, 2612, 540, 524, 105 L.Ed.2d 109 S.Ct. U.S. imposition of First Amendment (holding unconstitutional under statute violated Florida damages against newspaper that civil victim, identity had noting victim’s identity rape publishing in not statute was underinclusive lawfully obtained and been identity other than by means of victim’s prohibiting dissemination ” “ (quoting any of mass communication’ ‘instrument publication (1987)); Project, Inc. v. § Writers’ Arkansas 794.03 Fla.Stat. 209, 1730, 1722, 221, 234, L.Ed.2d 107 S.Ct Ragland 481 U.S. (1987) Arkansas sales First Amendment (invalidating under exempted newspa magazines but general-interest taxed tax that trade, noting journals, sports religious, professional, pers and for selective compelling justification no Arkansas “advanced Bank v. magazines”); First Nat’l of certain taxation content-based (1978) Bellotti, L.Ed.2d 707 98 S.Ct. 435 U.S. criminal stat Massachusetts (invalidating First Amendment under making from corporations and business prohibiting banks ute and find proposals, vote on referendum expenditures to influence justify restrictions on sufficient to compelling interest ing no state Jacksonville, 422 City Erznoznik v. corporate speech); (invalidat (1975) 2268, 2275, 95 S.Ct. drive-in prohibiting grounds ordinance ing on First Amendment from public from streets screens visible theaters with movie nudity; observing that underinclusive containing showing films may theory government on may be sustained classifications it,” addressing all of problem without part of with one “deal strikingly underinclusive finding ordinance Jacksonville but to sustain interest sufficient any compelling governmental lacking 101-02, it); Mosley, Dept. v. Police (1972) (invalidating equal-protec 2293-94, 33 L.Ed.2d except prohibiting picketing, all Chicago grounds ordinance tion *30 buildings peaceful picketing, within 150 feet of school on labor impermissibly dis- ground that ordinance relies on content-based defining picketing; observing govern- tinction in allowable by City justify con- mental interest advanced was insufficient to among pickets). tent-based discrimination however, settings, In other the Court has not been reluctant to justification in governmental interest asserted evaluate allegedly-underinclusive speech, restrictions on and has deter adequate justify piecemeal regula mined that reasons existed to Burson, approach The most recent illustration of that is tion. U.S.-, 112 119 in 504 S.Ct. L.Ed.2d which the against challenge validity upheld Court a First Amendment prohibiting a Tennessee statute the solicitation of votes and the display campaign distribution of literature within or one-hundred polling place. pointedly feet of the entrance to a The Court rejected the contention that the Tennessee statute was underinclu failing regulate speech sive for other forms of such as charitable polling and commercial solicitation and exit within that radius: campaign [TJhere is evidence that candidates have used ample political intimidation In contrast, workers commit voter or electoral fraud. there is no evidence that candidates have used other forms of solicitation or simply political polling exit to commit such electoral abuses. States laws to address the adopt that confront them. The First Amendment does not States to problems require regulate do for not exist. problems [Id. at-, 19-20.] 112 119 L.Ed.2d at S.Ct. at sustaining allegedly regulation Other cases underinclusive Commerce, Michigan speech include Austin v. Chamber 494 (1990) 652, 666, 1391, 1401, L.Ed.2d U.S. S.Ct. (upholding against challenge Michigan First Amendment statute prohibiting corporations using corporate indepen- from funds for expenditures opposition dent behalf of or to candidates for office, finding regulation supported by compelling state state limiting political corporate interest influence of accumulated wealth; concerning challenge, underinclusiveness Court deter- Michigan’s unincorporated “to mined that decision exclude labor justified by unions from [statute] therefore crucial differ- corporations”); ences between unions and United States v. Kokin- da, 720, 724, 733, S.Ct. (1990) 579-80, chal (upholding against First Amendment
lenge postal regulation barring “[s]oliciting alms and contribu
* * *,
tions,
soliciting and
campaigning for election
commercial
distributing
advertising” on
vending,
displaying
commercial
rejecting
regulation is
property;
Postal
contention that
Service
underinclusive,
characterized as “anomalous that the Ser
upon
avenues of
would be relied
as
vice’s allowance of some
speech”);
impermissively suppressing other
evidence that
it is
Vincent,
789, 811, 104
City
Taxpayers
Council v.
*31
(1984)
2118, 2132,
772,
against First
(upholding
791
80 L.Ed.2d
city
municipal
challenge by candidate for
council
Amendment
public property;
prohibiting posting
signs
on
con
ordinance
challenge,
that aesthetic
cerning underinclusiveness
Court finds
compromised
eliminating signs
public property
in
on
not
interest
observing
by allowing signs
private property,
that citizen’s
property justifies disparate
controlling
in
use of own
interest
Theatres,
41, 52-53, 106
treatment);
Playtime
475
Renton v.
U.S.
(1986)
925, 931,
29,
against
(upholding
41
First
89 L.Ed.2d
S.Ct.
prohibiting
motion-
challenge zoning ordinance
adult
Amendment
zone,
1,000
locating within
feet of residential
picture theatres from
school;
church,
argument,
rejecting
park, or
underinclusiveness
potential
first to address the
stated: “That Renton chose
Court
adult business in no
particular
one
kind of
problems created
city
‘singled out’ adult theaters for
way suggests that
has
treatment.”);
v. Massachusetts Citizens
discriminatory
FEC
cf.
616,
11,
238,
11,
n.
93
258 n.
Life, 479 U.S.
(1986)
539,
(holding
316 of Federal
n. 11
section
Act,
441b,
prohibits corpo
§
which
Campaign
U.S.C.A.
Election
treasury
in connection with elections
expending
funds
rations from
office,
applied
nonprofit corpora
unconstitutional as
public
causes; rejecting underinclusive
promote “pro-life”
tion formed to
present
observing,
Congress
“That
does not at
challenge and
ness
fitting
description
every possible type
firm
this
regulate
seek to
regulating corporations.”).
justification for
not undermine its
does
rejected an underinclusive
one occasion the Court
On at least
criminalizing
pornogra
child
challenge leveled at a statute
ness
classified, as it had
phy,
category
the Court
words,
constitutionally-protected
fighting
outside the realm of
as
763-64,
Ferber,
754,
at
supra, 458
S.Ct.
expression.
U.S.
1120-21, 1126-27.
prohibit
statute
L.Ed.2d at
The
performances using children under the
promotion
ed the
of sexual
sixteen,
was
age
proof
performances
that the
were obscene
necessary
The New York Court of
not
to establish a violation.
unconstitutionally
Appeals
the statute was
had determined
Ferber,
674,
underinclusive,
People
in
v.
52 N.Y.2d
439 N.Y.S.2d
(1981),
863,
against
it
Today,
unprotected speech
regulation.
subject
it
or uncon-
Hence,
to content-based
cannot be underinclusive
for a State to do
stitutional
precisely
n.
L.Ed.2d at 1128
[Ferber,
18, 102
112 S.Ct. at flexibility resolving in of the demonstrated claims context Court’s regulation expression. rejecting of an under- of underinclusive challenge political speech—a to a restriction of cate- inclusiveness acknowledged compre to to the gory speech of be entitled most Jr., Brennan, protection, William J. First Amendment see hensive Meiklejohn Interpretation Court and the of (1965)—the Amendment, 1, 11-12 in First 79 Harv.L.Rev. Burson, readily legislature’s supra, deferred to the Tennessee regulated was the of form determination expression requiring governmental restriction. Ferber, 1855-56, 119 And in at L.Ed.2d at 19-20.
112 S.Ct.
fight
pornography
categorized, analogously
child
was
to
in which
words,
beyond
ing
constitutionally-protected
as
the realm of
ex
763-64,
pression, 458
at
L.Ed.2d at
U.S. at
1126-27,
require any govern
unnecessary
it
to
Court deemed
justification
Id. at
for the statute’s underinclusiveness.
mental
at 1128.
73 L.Ed.2d
majority
minimal
to First
the R.A.V.
accorded
deference
Had
precedent,
Paul
it would have sustained the St.
Amendment
(subject
problems)
recognizing the
to overbreadth
ordinance
criminalizing
governmental
interest
that subset
obvious
color,
(race,
subjects
designated
fighting words addressed to the
creed, religion,
gender)
threats that
because bias-motivated
predominantly
are
addressed to one or
to incite violence
tend
Matsuda,
Response subjects.
those
See Mari
Public
more of
J.
Story,
Speech: Considering the
87 Mich.L.Rev.
Victim’s
Racist
(1989)
urging
(detailing escalation
bias-related crime and
speech);
class of
Hate Crime
narrow
racist
criminalization
Anti-Semitism,
Response
and
A
Vandalism
Violent
Statutes:
(Anti-Defamation
B’nai
Report
League
ADL
Bigotry,
Law
York, N.Y.),
B’rith,
(summarizing sta
Spring/Summer 1988
New
commonly
frequent
re
describing most
victims
data
tistical
compiling
state and
forms of hate crimes and
relevant
ported
race, color,
among
legislation). By including
religion
federal
speech,
govern
St. Paul’s
proscribed topics of bias-motivated
by Congress
closely
determination
resembled that reached
mental
Act, Pub.L. No.
enacting the
Hate Crime Statistics
Federal
(note)
(codified
(1990)), mandating
§
101-275
U.S.C.A
Attorney
acquire
five-year period
data over
that the
General
*33
race,
prejudice
about “crimes that manifest
evidence
based on
**
orientation,
religion,
ethnicity
sexual
Ibid. That St.
,
prohibit
Paul
speech
elected not to
bias-motivated
addressed to
topics
preference
type
other
reflects not a
for
one
over
another,
simply
by public
but
a decision
officials to “address the
Burson,
problems
supra,
that confront them.”
The historical
the
by
Paul’s ordinance underscores
by
the
restricted
St.
majority’s
analy
in
First Amendment
fundamental
imbalance
the
Paul has
fighting words that St.
By emphasizing
sis.
those
danger
regulate,
underestimating the
determined it need not
and
“fundamentally
majority
posed by
regulated expression,
the
the
color, creed,
‘race,
religion
miscomprehends
[and]
role of
the
R.A.V.,
society.”
supra, 505
contemporary
gender’ in
American
n.
As strives to overcome the effects of institutionalized bigotry, resurgence of bias-motivated crime the occurrence understandably provokes governmental response. That re- sponse impulse regulate expression is informed not an discriminatorily viewpoint, by pragmatic based on content or but respond directly dangerous desire to to the most virulent and formulation of bias-motivated incitements to violence. ‘While a *35 cross-burning part public rally may fairly in a be as of a stadium protected speech, burning as same cross on described * * * neighbor entirely front lawn of has an different charac- [a] Stevens, Speech, P. 102 Yale ter.” John Freedom L.J. (1993). interpretation 1310-11 An of the First Amendment prevents government singling regulation from out for those inciteful strains of hate that threaten imminent harm will incomprehensible public be officials and to the citizens whose protect. interests such laws were enacted to holding That the Court’s in R.AV. us in our binds disposition appeal indisputable. persuades of this Whether it us question entirely. is another
STEIN, J., concurs the result. For reversal and remandment—Chief Justice WILENTZ and CLIFFORD, POLLOCK, HANDLER, Justices GARIBALDI and STEIN-6.
Opposed—None.