STATE OF NEW JERSEY V. STEVEN D. VAWTER
Case Date: 05/26/1994
Docket No: SYLLABUS
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(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: This is a companion case to State v. David Mortimer also decided today.)
Argued October 12, 1993 -- Decided May 26, 1994
CLIFFORD, J., writing for a unanimous Court.
On May 13, 1991, Steven Vawter and David Kearns spray-painted a Nazi swastika and the words
"Hitler Rules" on a synagogue in Rumson. On that same night, Vawter and Kearns also spray-painted a
satanic pentagram on the driveway of a Roman Catholic Church in neighboring Fair Haven. A Monmouth
County grand jury returned a twelve-count indictment against Vawter and Kearns. Counts One through Four
charged Vawter and Kearns with having put another in fear of violence by placing a symbol or graffiti on
property, a third-degree offense in violation of N.J.S.A. 2C:33-10 (Section 10); Counts Five through Eight
charged Vawter and Kearns with fourth-degree defacement contrary to N.J.S.A. 2C:33-11 (Section 11);
Counts Nine and Ten charged Vawter and Kearns with third-degree criminal mischief and Counts Eleven
and Twelve charged Vawter and Kearns with conspiracy to commit the offenses charged in Counts One
through Eight.
Vawter and Kearns moved to dismiss Counts One through Eight of the indictment on the ground
that Sections 10 and 11 violate their First and Fourteenth Amendment rights under the U.S. Constitution.
Section 10 prohibits the conduct of putting or attempting to put another in fear of bodily violence by placing
on property a symbol that exposes another to threats of violence, contempt or hatred on the basis of race,
color, creed or religion, including but not limited to, a burning cross or a Nazi swastika. Section 11 forbids
the conduct of defacing or damaging private premises or property by placing thereon a symbol that exposes
another to threats of violence, contempt or hatred on the basis of race, color, creed or religion, including but
not limited to, a burning cross or a Nazi swastika.
The trial court denied Vawter's and Kearns' motions to dismiss the first eight counts of the
indictment and found Sections 10 and 11 constitutional. The court was satisfied that it could distinguish
Sections 10 and 11 from the St. Paul ordinance in the U.S. Supreme Court decision in R.A.V. v. City of St.
Paul. The Supreme Court in R.A.V. found that a Minnesota bias-motivated crime ordinance proscribed
expressive conduct protected by the First Amendment.
The Appellate Division granted leave to appeal and the Supreme Court granted direct certification.
HELD: Based on the United States Supreme Court decision in R.A.V. v. City of St. Paul, New Jersey's
hate-crime statutes, N.J.S.A. 2C:33-10 and -11, are unconstitutional under the First and
Fourteenth Amendments to the United States Constitution.
1. Not all statutes dealing with hate crimes necessarily regulate speech for purposes of the First
Amendment. Victim-selection or penalty-enhancement statutes do not restrict expression. Those statutes
target mere conduct and punish bias in the motivation of a crime by enhancing the penalty for that crime.
Sections 10 and 11 do not increase the penalty for an underlying offense because of a motive grounded in
bias. Rather, those sections make criminal the expression of hate. Therefore, Sections 10 and 11 regulate
expression protected by the First Amendment. (pp. 4-11)
2. Content-based statutes are presumptively invalid. To survive strict scrutiny, the regulation must be
necessary to serve a compelling State interest and must be narrowly drawn to achieve that end. In adopting
Sections 10 and 11, the Legislature was expressing its disagreement with the message conveyed by the
conduct that the statutes regulate. Moreover, in the absence of those statutes, the State could have
continued to punish the offensive conduct under the then-existing laws. Furthermore, the statements of
Governor Byrne, who signed Sections 10 and 11 into law, and the circumstances surrounding the signing
support a finding that the Legislature adopted Sections 10 and 11 to denounce racially- or ethnically-biased
messages. Thus, Sections 10 and 11 are content-based and are presumptively invalid unless these restrictions
serve a compelling State interest. (pp. 11-16)
3. The Court considers the statutes in light of Justice Scalia's majority opinion in R.A.V.. While it
differs with Justice Scalia's reasoning, the Court is obligated to review the constitutionality of Sections 10 and
11 in light of that reasoning. Justice Scalia reasoned that although content-based regulations are
presumptively invalid, certain restrictions are permitted in a few limited areas, including obscenity,
defamation, and fighting words. Justice Scalia noted exceptions to the prohibition against content
discrimination in the area of proscribable speech: 1) when the basis for the content discrimination consists
entirely of the very reason the entire class of speech at issue is proscribable; 2) when a subclass of
proscribable speech happens to be associated with particular secondary effects of the speech, so that the
regulation is justified without reference to the content of the speech; and 3) in those cases in which the
nature of the content discrimination is unrelated to official suppression of ideas. Applying those foregoing
principles, Justice Scalia determined that the St. Paul ordinance was facially unconstitutional because it did
not fall within any of the exceptions to the prohibition on content discrimination. (pp. 16-21)
4. In applying R.A.V. to this case, the Court concludes that even if it were to read Sections 10 and 11
to regulate only fighting words, a class of proscribable speech, those statutes do not fit within any of the
exceptions to the prohibition against content discrimination. Sections 10 and 11 do not fall within the first
exception to content discrimination - that the entire class of speech is proscribable. Because Sections 10 and
11 proscribe threats on the basis of race, color, creed or religion, the statutes, under the ruling in R.A.V., are
viewpoint-discriminatory and are impermissible. Nor do the statutes fall within the second exception for
discrimination aimed only at secondary effects; secondary effects do not include listener's reactions to speech
or the emotive impact of speech. Finally, Sections 10 and 11 do not fall within the third, more general
exception for discrimination that is unrelated to official suppression of ideas. Because the Legislature
specifically enacted the statutes to outlaw messages of racial or religious hatred, the statutes are related to
the official suppression of ideas. (pp. 21-25)
5. Sections 10 and 11 serve a compelling State interest - protecting the rights of members of groups
that historically have been the object of discrimination. Nonetheless, as found in R.A.V., the statutes are not
narrowly tailored. The language of Sections 10 and 11 limit their scope to race, color, creed, and religion;
therefore, pursuant to R.A.V., the statutes offend the First Amendment. (pp. 25-26)
Judgment of the trial court is REVERSED and the matter is REMANDED to the Law Division for
entry of a judgment dismissing counts one through eight of the indictment and for further proceedings as
may be appropriate on the remaining counts.
JUSTICE STEIN, concurring, joins the Court's opinion declaring Sections 10 and 11
unconstitutional, but writes separately to explain his disagreement with the U.S. Supreme Court's decision in
R.A.V. Justice Stein's opinion focuses on what he believes to be the basic flaw in R.A.V.: the holding that
the St. Paul ordinance impermissibly regulates speech based on its content and on its viewpoint and that it
cannot be sustained on the ground that the ordinance was narrowly tailored to serve compelling State
interests.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, GARIBALDI and STEIN join in
JUSTICE CLIFFORD's opinion. JUSTICE STEIN filed a separate concurring opinion. JUSTICE
O'HERN did not participate.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN D. VAWTER and
Defendants-Appellants.
Argued October 12, 1993 -- Decided May 26, 1994
On certification to the Superior Court, Law
Division, Monmouth County.
Stephen M. Pascarella argued the cause for
appellant David J. Kearns (Allegra,
Pascarella & Nebelkopf, attorneys).
John T. Mullaney, Jr., argued the cause for
appellant Steven D. Vawter.
Robert A. Honecker, Jr., Second Assistant
Prosecutor, argued the cause for respondent
(John Kaye, Monmouth County Prosecutor,
attorney).
Debra L. Stone, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (Fred DeVesa, Acting
Attorney General, attorney).
The opinion of the Court was delivered by
Defendants are charged with violations of N.J.S.A. 2C:33-10
(Section 10) and -11 (Section 11), New Jersey's so-called hate-crime statutes. They contend that the statutes are
unconstitutional under the First and Fourteenth Amendments to the
United States Constitution. The trial court denied defendants'
motion to dismiss the indictment, and the Appellate Division
granted leave to appeal. We granted defendants' motion for
direct certification,
133 N.J. 407 (1993). Following, as we
must, the United States Supreme Court's decision in R.A.V. v.
City of St. Paul, 505 U.S. ___,
112 S. Ct. 2538,
120 L. Ed.2d 305 (1992), we now declare the cited statutes unconstitutional,
and therefore reverse the judgment below.
On May 13, 1991, a person or persons spray-painted a Nazi
swastika and words appearing to read "Hitler Rules" (the spray-painters misspelled "Hitler") on a synagogue, Congregation B'nai
Israel, in the Borough of Rumson. On that same night the same
person or persons also spray-painted a satanic pentagram on the
driveway of a Roman Catholic church, the Church of the Nativity,
in the neighboring Borough of Fair Haven. In March 1992 the Monmouth County Prosecutor's Office received confidential information from witnesses identifying defendants, Stephen Vawter and David Kearns, as the persons who had spray-painted the synagogue and the driveway of the church. In due course a Monmouth County grand jury returned a twelve-count indictment against Vawter and Kearns. Counts One through
Four charged defendants with having put another in fear of
violence by placement of a symbol or graffiti on property, a
third-degree offense, in violation of Section 10; Counts Five
through Eight charged defendants with fourth-degree defacement
contrary to Section 11; Counts Nine and Ten charged defendants
with third-degree criminal mischief in violation of N.J.S.A.
2C:17-3; and Counts Eleven and Twelve charged defendants with
conspiracy to commit the offenses charged in Counts One through
Ten.
Defendants moved to dismiss Counts One through Eight of the
indictment on the ground that Sections 10 and 11 violate their
First and Fourteenth Amendment rights under the United States
Constitution. Section 10 reads as follows:
A person is guilty of a crime of the third
degree if he purposely, knowingly or
recklessly puts or attempts to put another in
fear of bodily violence by placing on public
or private property a symbol, an object, a
characterization, an appellation or graffiti
that exposes another to threats of violence,
contempt or hatred on the basis of race,
color, creed or religion, including, but not
limited to[,] a burning cross or Nazi
swastika. A person shall not be guilty of an
attempt unless his actions cause a serious
and imminent likelihood of causing fear of
unlawful bodily violence.
used for religious, educational, residential,
memorial, charitable, or cemetery purposes,
or for assembly by persons of a particular
race, color, creed or religion by placing
thereon a symbol, an object, a
characterization, an appellation, or graffiti
that exposes another to threat of violence,
contempt or hatred on the basis of race,
color, creed or religion, including, but not
limited to, a burning cross or Nazi swastika.
In denying defendants' motion to dismiss the first eight
counts of the indictment the trial court, satisfied that it could
distinguish Sections 10 and 11 from the St. Paul ordinance in
R.A.V., held Sections 10 and 11 constitutional. On this appeal
we address defendants' constitutional challenge to those
sections.
Our cases recognize that "[i]n the exercise of police power, a state may enact a statute to promote public health, safety or the general welfare." State, Dep't of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 499 (1983). The authority of the State to regulate is limited, however; a State may not exercise its police power in a manner "repugnant to the fundamental constitutional rights guaranteed to all citizens." Gundaker Cent. Motors v. Gassert, 23 N.J. 71, 79 (1956), appeal denied, 354 U.S. 933, 77 S. Ct. 1397, 1 L. Ed.2d 1533 (1957). Here, defendants charge that the statutes under which they were charged
offend their fundamental constitutional right to freedom of
speech under the First Amendment.
Sections 10 and 11 do not proscribe speech per se. Rather,
they prohibit certain kinds of conduct. Section 10 prohibits the
conduct of "put[ting] or attempt[ing] to put another in fear of
bodily violence by placing on * * * property a symbol * * * that
exposes another to threats of violence, contempt or hatred on the
basis of race, color, creed or religion, including, but not
limited to[,] a burning cross or Nazi swastika." Section 11
forbids the conduct of "defac[ing] or damag[ing private premises
or property] * * * by placing thereon a symbol * * * that exposes
another to threats of violence, contempt or hatred on the basis
of race, color, creed or religion, including, but not limited to,
a burning cross or Nazi swastika." To decide whether the conduct proscribed by Sections 10 and 11 is "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments," Spence v. Washington, 418 U.S. 405, 409, 94 S. Ct. 2727, 2730, 41 L. Ed.2d 842, 846 (1974), we must determine whether "[a]n intent to convey a particularized message [i]s present" and whether those who view the message have a great likelihood of understanding it. Id. at 410-11, 94 S. Ct. at 2730, 41 L. Ed. 2d at 847. The Supreme Court has concluded in a variety of contexts that conduct is sufficiently expressive to fall within the protections of the
First Amendment. See, e.g., Texas v. Johnson,
491 U.S. 397,
109 S. Ct. 2533,
105 L. Ed.2d 342 (1989) (holding protected the
burning of flag to protest government policies); Spence, supra,
418 U.S. 405,
94 S. Ct. 2727,
41 L. Ed.2d 842 (holding protected
the placing of peace symbol on flag to protest invasion of
Cambodia and killings at Kent State); Tinker v. Des Moines School
District,
393 U.S. 503,
89 S. Ct. 733,
21 L. Ed.2d 731 (1969)
(holding protected the wearing of black armbands to protest war
in Vietnam).
In R.A.V., supra, 505 U.S. ,
112 S. Ct. 2538,
120 L. Ed.2d 305, the United States Supreme Court determined that a St.
Paul, Minnesota, Bias-Motivated Crime Ordinance proscribed
expressive conduct protected by the First Amendment. The
ordinance read:
Whoever places on public or private property
a symbol, object, appellation,
characterization or graffiti, including, but
not limited to, a burning cross or Nazi
swastika, 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 commits
disorderly conduct and shall be guilty of a
misdemeanor.
[St. Paul, Minn. Legis. Code
As one court has noted, "While the [R.A.V.] Court did not explicitly state that * * * acts prohibited by the [St. Paul ordinance] are expression cognizable by the First Amendment, such
a conclusion necessarily precedes the Court's holding that the
[ordinance] facially violate[s] the First Amendment." State v.
Sheldon,
629 A.2d 753, 757 (Md. 1993).
Taking the lead from the Supreme Court, States with similar
hate-crime statutes have determined also that the conduct
proscribed by their statutes constitutes protected expression.
For example, the Court of Appeals of Maryland found that the
conduct prohibited by its statute, "burn[ing] or caus[ing] to be
burned any cross or other religious symbol upon any private or
public property," Md. Code Ann., Crim. Law § 10A, qualifies as
speech for purposes of the First Amendment. Sheldon, supra, 629
A.
2d at 757. The Maryland court reasoned that "[b]ecause of
the[] well known and painfully apparent connotations of burning
religious symbols, there can be no doubt that those who engage in
such conduct intend to 'convey a particularized message,' or that
those who witness the conduct will receive the message." Ibid. Similarly, in State v. Talley, 858 P.2d 217, 230 (1993), the Supreme Court of Washington concluded that part of its hate-crime statute regulates speech for purposes of the First Amendment. That part of the Washington statute reads: "The following constitute per se violations of th[e malicious harassment statute]: (a) Cross burning; or (b) Defacement of the property of the victim or a third person with symbols or words when the symbols or words historically or traditionally connote hatred or
threats toward the victim." Wash. Rev. Code § 9A.36.080(2). The
Washington court declared that the statute "clearly regulates
protected symbolic speech * * *." Talley, supra, 858 P.
2d at
230. See also State v. Ramsey,
430 S.E.2d 511, 514 (S.C. 1993)
(finding that statute prohibiting placement of burning or flaming
cross on public property or on private property without owner's
permission regulates protected symbolic conduct). Not all statutes dealing with hate crimes, however, necessarily regulate speech for purposes of the First Amendment. Although enactments like the St. Paul ordinance and the Maryland and Washington statutes have been viewed as regulating expression protected by the First Amendment, courts have found that victim-selection or penalty-enhancement statutes target mere conduct and do not restrict expression. Those statutes punish bias in the motivation for a crime by enhancing the penalty for that crime. See, e.g., Wisconsin v. Mitchell, 508 U.S. , , 113 S. Ct. 2194, 2201, 124 L. Ed.2d 436, 447 (1993) (finding that statute increasing penalty for selecting target of crime based on race, religion, color, disability, sexual orientation, national origin, or ancestry of person "is aimed at conduct unprotected by the First Amendment"); People v. Miccio, 589 N.Y.S.2d 762, 764-65 (Crim. Ct. 1992) (finding that statute that elevates crime of simple harassment to crime of aggravated harassment when bias motive is present targets only conduct); State v. Plowman, 838 P.2d 558, 564-65 (Or. 1992), (finding that statute that elevates
crime of assault from misdemeanor to felony when defendant acts
because of perception of victim's race, color, religion, national
origin, or sexual orientation is directed against conduct), cert.
denied, ___ U.S. ___,
113 S. Ct. 2967,
125 L. Ed.2d 666 (1993);
Tally, supra, 858 P.
2d at 222 (finding that Wash. Rev. Code
We therefore conclude that Sections 10 and 11 regulate
expression protected by the First Amendment. When a person
places a Nazi swastika on a synagogue or burns a cross in an
African-American family's yard, the message sought to be conveyed
is clear: by painting the swastika or by burning the cross, a
person intends to express hatred, hostility, and animosity toward
Jews or toward African-Americans. "There are certain symbols
they are all too easily understood. In fact, the sort of conduct
regulated by Sections 10 and 11 is a successful, albeit a
reprehensible, vehicle for communication: "Victims of vicious
hate propaganda have experienced physiological symptoms and
emotional distress ranging from fear in the gut, rapid pulse rate
and difficulty in breathing, nightmares, post-traumatic stress
disorder, hypertension, psychosis and suicide." Id. at 2336.
Thus, Sections 10 and 11 meet the requirements of Spence, supra,
418 U.S. 405,
94 S. Ct. 2727,
41 L. Ed.2d 842, in that they
address conduct that is heavily laden with an unmistakable
message. Those sections therefore regulate speech for purposes
of the First Amendment. In concluding that the statutes regulate protected expression, we reject the argument of the Attorney General and of the trial court that because Sections 10 and 11 "require a specific intent to threaten harm against another because of [ ] race," State v. Davidson, 225 N.J. Super. 1, 14 (App. Div. 1988), those statutes regulate only conduct. In State v. Finance American Corp., 182 N.J. Super. 33, 38 (1981), the Appellate Division found that because N.J.S.A. 2C:33-4, the harassment statute, requires the speaker to have the specific intent to harass the listener, the statute regulates conduct. Sections 10 and 11, however, do more than add a specific intent requirement. As we have noted, the statutes regulate expression itself. Thus,
we must analyze Sections 10 and 11 under the appropriate level of
First Amendment scrutiny.
The Supreme Court has observed that although governments
have a "freer hand" in regulating expressive conduct than in
regulating pure speech, they may not "proscribe particular
conduct because it has expressive elements." Johnson, supra, 491
U.S. at 406, 109 S. Ct. at 2540, 105 L. Ed.
2d at 354-55. "'A law
directed at the communicative nature of conduct must * * * be
justified by the substantial showing of need that the First
Amendment requires.'" Id. at 406, 109 S. Ct. at 2540, 105 L. Ed.
2d at 355 (quoting Community for Creative Non-Violence v. Watt,
703 F.2d 586, 622-23 (D.C. Cir. 1983) (Scalia, J., dissenting)).
a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction
on alleged First Amendment freedoms is no
greater than is essential to the furtherance
of that interest.
[O'Brien, supra, 391 U.S. at 377,
If Sections 10 and 11 relate to the suppression of free
expression, we must decide if the statutes are content neutral or
content based to determine the level of scrutiny that we should
apply under the First Amendment. "The principal inquiry in
determining content-neutrality * * * is whether the government
has adopted a regulation of speech because of disagreement with
the message it conveys." Ward v. Rock Against Racism,
491 U.S. 781, 791,
109 S. Ct. 2746, 2754,
105 L. Ed.2d 661, 675 (1989).
If a regulation is content neutral, "reasonable time, place, or
manner restrictions" are appropriate. Clark v. Community for
Creative Non-Violence,
468 U.S. 288, 293,
104 S. Ct. 3065, 3069,
82 L. Ed.2d 221, 227 (1984). Time, place, or manner regulations
are reasonable if they are "narrowly tailored to serve a
significant governmental interest, and [ ] they leave open ample
alternative channels for communication * * *." Ibid. If, however, we decide that Sections 10 and 11 relate to the suppression of free expression and that they are content based, the strictest judicial scrutiny is warranted: "Content-based statutes are presumptively invalid." R.A.V., supra, 505 U.S. at ___, 112 S. Ct. at 2542, 120 L. Ed. 2d at 317. To survive strict
scrutiny, a regulation must be "necessary to serve a compelling
state interest and [it must be] narrowly drawn to achieve that
end." Perry Educ. Ass'n v. Perry Local Educ. Ass'n,
460 U.S. 37,
45,
103 S. Ct. 948, 955,
74 L. Ed.2d 794, 804 (1983).
We conclude that Sections 10 and 11 are content-based
restrictions. In adopting those sections the Legislature was
obviously expressing its disagreement with the message conveyed
by the conduct that the statutes regulate. The State argues that
the statutes are "directed primarily against conduct" and that
they only "incidentally sweep up" speech. Although the
legislative history is not instructive, other factors persuade us
that the State's characterization of Sections 10 and 11 is
incorrect. First, New Jersey had statutes proscribing the same conduct as Sections 10 and 11 before the enactment of those sections in 1981. Section 10 deals with "placing on public or private property a symbol, an object, a characterization, an appellation or graffiti * * *." Section 11 deals with "defac[ing] or damag[ing] * * * private premises or property * * *." Yet, other statutes proscribe exactly the same conduct: first, the criminal-mischief statute, N.J.S.A. 2C:17-3, prohibits damaging or tampering with the tangible property of another (the State charged defendants, Vawter and Kearns, under that statute in addition to Sections 10 and 11); second, the criminal-trespass
statute, N.J.S.A. 2C:18-3, forbids entering or remaining in any
structure that one knows one is not licensed or privileged to
enter; and finally -- if the offense is cross burning and if the
conditions of the incident are appropriate -- the arson statute,
N.J.S.A. 2C:17-1, criminalizes starting a fire, thereby putting
another person in danger of death or bodily injury or thereby
placing a building or structure in danger of damage or
destruction. Thus, the Legislature enacted Sections 10 and 11
specifically to condemn the expression of biased messages. Even
in the absence of those statutes the State could have continued
to punish the conduct of painting racially- or religiously-offensive graffiti or of burning a cross under then-existing
laws.
Second, the statements of Governor Byrne, who signed
Sections 10 and 11 into law, and the circumstances surrounding
the signing support a finding that the Legislature adopted
Sections 10 and 11 to denounce racially- or religiously-biased
messages. As the Governor declared in his conditional veto, for
technical reasons, of an earlier version of the statutes:
Our democratic society must not allow intimidation of racial, ethnic or religious groups by those who would use violence or would unlawfully vent their hatred. All members of racial, ethnic or religious groups must be able to participate in our society in freedom and with a full sense of security.
This is what distinguishes America. And this
is what this bill preserves.
[Governor's Veto Message to
Assembly Bill No. 334 (June 15,
1981).]
By that statement, the Governor declared his, and the general,
understanding that the Legislature's purpose was to announce its
disagreement with the expression of biased messages. Moreover,
on September 10, 1981, Governor Byrne signed the statutes into
law at Congregation B'nai Yeshrun in Teaneck, a synagogue that
had been defaced with swastikas and obscenities in October 1979.
That special signing ceremony (at which the Governor and the
sponsors of the legislation, Assemblyman Baer and Senator
Feldman, spoke) demonstrates also that the statutes were aimed
specifically at denouncing messages of hatred. Thus, we conclude
that the Governor and the Legislature, by enacting Sections 10
and 11, intended to regulate expressions of racial and religious
hatred. The intent and purpose behind the statutes could hardly be more laudable. And yet the unmistakable fulfillment of that purpose is what renders Sections 10 and 11 content-based restrictions. As the Supreme Court emphasized in Ward, supra, 491 U.S. at 791, 109 S. Ct. at 2754, 105 L. Ed. 2d at 675, "The principal inquiry in determining content neutrality * * * is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's
purpose [in enacting a statute] is the controlling
consideration." That Sections 10 and 11 are content based is not
the end of our inquiry, however. Although presumptively invalid,
content-based restrictions are nevertheless permissible in some
instances.
Ordinarily, we would ascertain at this point whether
Sections 10 and 11 are narrowly tailored to serve a compelling
State interest. Before applying strict scrutiny, however, we
depart reluctantly from what we consider traditional First
Amendment jurisprudence to analyze our statutes in light of
Justice Scalia's five-member majority opinion in R.A.V., supra,
505 U.S. ,
112 S. Ct. 2538,
120 L. Ed.2d 305. Although we
are frank to confess that our reasoning in that case would have
differed from Justice Scalia's, we recognize our inflexible
obligation to review the constitutionality of our own statutes
using his premises. See Battaglia v. Union County Welfare Bd.,
88 N.J. 48, 60 (1981) (noting that New Jersey Supreme Court is
"bound by the [United States] Supreme Court's interpretation and
application of the First Amendment and its impact upon the states
under the Fourteenth Amendment"), cert. denied,
456 U.S. 965,
102 S. Ct. 2045,
72 L. Ed.2d 490 (1982).
In R.A.V., the United States Supreme Court concluded that
the Bias-Motivated Crime Ordinance of St. Paul, Minnesota, is
unconstitutional because "it prohibits otherwise permitted speech
solely on the basis of the subjects the speech addresses." 505
U.S. at , 112 S. Ct. at 2542, 120 L. Ed.
2d at 316. The
defendant in that case and several teenagers had burned a cross
inside the fenced yard of an African-American family. Although
the State could have punished the defendant's conduct under
several statutes, including those prohibiting terroristic
threats, arson, and criminal damage to property, id. at n.1,
112 S. Ct. at 2541 n.1, 120 L. Ed.
2d at 315 n.1, St. Paul chose
to charge the defendant under its Bias-Motivated Crime Ordinance,
quoted supra, at 6.
The defendant challenged the St. Paul ordinance as
"substantially overbroad and impermissibly content-based" under
the First Amendment. 505 U.S. at ___, 112 S. Ct. at 2541, 120 L.
Ed.
2d at 315. The trial court dismissed the charge against the
defendant, but the Minnesota Supreme Court reversed, holding that
the ordinance reaches only fighting words and thus proscribes
only expression that remains unprotected by the First Amendment.
In re Welfare of R.A.V.,
464 N.W.2d 507, 510 (1991). The
Minnesota Supreme Court concluded that because the ordinance was
narrowly tailored to promote a compelling government interest, it
survived constitutional attack. Id. at 511.
In invalidating the ordinance, Justice Scalia accepted as
authoritative the Minnesota Supreme Court's statement that "the
ordinance reaches only those expressions that constitute
'fighting words' within the meaning of Chaplinsky[ v. New
Hampshire,
315 U.S. 568, 572,
62 S. Ct. 766, 769,
86 L. Ed.2d 1031, 1035 (1942) (defining "fighting words" as "conduct that
itself inflicts injury or tends to incite immediate violence")]."
R.A.V., supra, 505 U.S. at ___, 112 S. Ct. at 2542, 120 L. Ed.
2d
at 316. Justice Scalia then reasoned that although "[c]ontent-based regulations are presumptively invalid," id. at ___, 112 S.
Ct. at 2542, 120 L. Ed.
2d at 317, our society permits
restrictions on "the content of speech in a few limited areas * *
*." Id. at ___, 112 S. Ct. at 2542-43, 120 L. Ed.
2d at 317
(citing Chaplinsky, supra, 315 U.S. at 572, 62 S. Ct. at 769, 86
L. Ed. at 315). Those areas include obscenity, defamation, and
fighting words. Id. at ___, 112 S. Ct. at 2543, 120 L. Ed.
2d at
317. Justice Scalia pointed out that although the Supreme Court
has sometimes said that those proscribable categories are "'not
within the area of constitutionally protected speech'", ibid.
(quoting Roth v. United States,
354 U.S. 476, 483,
77 S. Ct. 1304, ____,
1 L. Ed.2d 1498, ____ (1957)), that proposition is
not literally true. Id. at ___, 112 S. Ct. at 2543, 120 L. Ed.
2d at 317-18. In fact, those areas of proscribable speech can
"be made vehicles for content discrimination * * *." Id. at ___,
112 S. Ct. at 2543, 120 L. Ed.
2d at 318. Thus, the Supreme
Court reads the First Amendment to impose a content-discrimination limitation on a State's prohibition of
proscribable speech. Id. at ___, 112 S. Ct. at ___, 120
L. Ed.
2d at 320.
Justice Scalia, however, noted exceptions to the prohibition
against content discrimination in the area of proscribable
speech. The first exception to the prohibition exists "[w]hen
the basis for the content discrimination consists entirely of the
very reason the entire class of speech at issue is proscribable."
Id. at ___, 112 S. Ct. at 2545, 120 L. Ed.
2d at 320-21. A
second exception is found when a "subclass [of proscribable
speech] happens to be associated with particular 'secondary
effects' of the speech, so that the regulation is 'justified
without reference to the content of the * * * speech.'" Id. at
___, 112 S. Ct. at 2546, 120 L. Ed. at 321 (quoting Renton v.
Playtime Theatres, Inc.,
475 U.S. 41, 48,
106 S. Ct. 925, 929,
89 L. Ed.2d 29, 38 (1986)). The final classification is a catch-all exception for those cases in which "the nature of the content
discrimination is such that there is no realistic possibility
that official suppression of ideas is afoot." Id. at ___, 112 S.
Ct. at 2547, 120 L. Ed.
2d at 322. Applying the foregoing principles, Justice Scalia determined that the St. Paul ordinance is facially unconstitutional, even if read as construed by the Minnesota Supreme Court to reach only "fighting words." Id. at ___, 112 S. Ct. at 2547, 120 L. Ed 2d
at 323. The vice of the ordinance, as perceived by the Supreme
Court majority, is that it is content discriminatory; in fact,
the ordinance "goes even beyond mere content discrimination to
actual viewpoint discrimination." Id. at ___, 112 S. Ct. at
2547, 120 L. Ed.
2d at 323. "Displays containing abusive
invective, no matter how vicious or severe, are permissible
unless they are addressed to one of the specified disfavored
topics[: race, color, creed, religion, or gender]." Id. at ___,
112 S. Ct. at 2547, 120 L. Ed.
2d at 323.
Justice Scalia found that the St. Paul ordinance does not
fall within any of the exceptions to the prohibition on content
discrimination. The ordinance does not fit within the first
exception for content discrimination -- the entire class of
speech is proscribable -- because
fighting words are categorically excluded
from the protection of the First Amendment
[because] their content embodies a
particularly intolerable (and socially
unnecessary) mode of expressing whatever idea
the speaker wishes to convey. St. Paul has
not singled out an especially offensive mode
of expression * * *. Rather, it has
proscribed fighting words of whatever manner
that communicate messages of racial, gender,
or religious intolerance.
[Id. at ___, 112 S. Ct. at 2548-
Nor does the ordinance fit within the second exception - discrimination aimed only at secondary effects -- because neither listeners' reactions to speech nor the emotive impact of speech
is a secondary effect. Id. at ___, 112 S. Ct. at 2549, 120 L.
Ed.
2d at 325 (citing Boos v. Barry,
485 U.S. 312, 321,
108 S.
Ct. 1157, 1163-64,
99 L. Ed.2d 333, 344-45 (1988)). Finally,
Justice Scalia concluded that "[i]t hardly needs discussion that
the ordinance does not fall within [the third] more general
exception permitting all selectivity that for any reason is
beyond the suspicion of official suppression of ideas." Id. at
___, 112 S. Ct. at 2549, 120 L. Ed. at 325.
Applying R.A.V. to this appeal, we conclude that even if we
were to read Sections 10 and 11 to regulate only fighting words,
a class of proscribable speech, those statutes do not fit within
any of the exceptions to the prohibition against content
discrimination.
The Attorney General argues that because Sections 10 and 11
regulate only threats of violence, those sections fall within the
first exception for content discrimination -- the entire class of
speech is proscribable. In discussing threats under the first
exception Justice Scalia pointed out that
the Federal Government can criminalize [ ]
those threats of violence that are directed
against the President, see
18 U.S.C. §871,
since the reasons why threats of violence are
outside the First Amendment (protecting
individuals from the fear of violence, from
the disruption that fear engenders, and from
the possibility that the threatened violence
will occur) have special force when applied
to the President.
[Id. at ___, 112 S. Ct. at 2546,
But Justice Scalia observed that "the Federal Government may not
criminalize only those threats against the President that mention
his policy on aid to inner cities." Ibid.
We see two shortcomings in the Attorney General's argument
that because our statutes are permissible regulations of threats,
they fit within the first exception. First, the statutes do not
prohibit only threats. Section 10 prohibits "put[ing] or
attempt[ing] to put another in fear of bodily violence by placing
on public or private property a symbol * * * that exposes another
to threats of violence, contempt or hatred on the basis of race,
color, creed or religion * * *." (Emphasis added.) Section 11
precludes "defac[ing] or damag[ing] * * * private premises or
property * * * by placing thereon a symbol * * * that exposes
another to threats of violence, contempt or hatred on the basis
of race, color, creed or religion * * *." (Emphasis added.)
Thus, Sections 10 and 11 proscribe not only threats of violence
but also expressions of contempt and hatred. Moreover, on close
examination the "contempt and hatred" language may pose vagueness
and overbreadth issues. We need not address those issues,
however, because we could apply a limiting construction to
restrict the application of Sections 10 and 11 only to threats of
violence.
But even if we were somehow to construe Sections 10 and 11
to proscribe only threats of violence, we would encounter
another problem: our statutes proscribe threats "on the basis of
race, color, creed or religion." Under the Supreme Court's
ruling in R.A.V., that limitation renders the statutes viewpoint-discriminatory and thus impermissible. Although a statute may
prohibit threats, it may not confine the prohibition to only
certain kinds of threats on the basis of their objectionable
subject matter. Thus, the first exception cannot save Sections
10 and 11.
Nor does the second exception for discrimination aimed only
at secondary effects rescue Sections 10 and 11. The only
secondary effects the statutes arguably could target are the same
secondary effects the St. Paul ordinance targeted in R.A.V.,
namely, "'protect[ion] against the victimization of a person or
persons who are particularly vulnerable because of their
membership in a group that historically has been discriminated
against.'" 505 U.S. at ___, 112 S. Ct. at 2549, 120 L. Ed.
2d at
325 (quoting Brief for Respondent, City of St. Paul). Thus,
Sections 10 and 11 fail for the same reason that the St. Paul
ordinance failed: secondary effects do not include listeners'
reactions to speech or the emotive impact of speech. Id. at ___,
112 S. Ct. at 2549, 120 L. Ed.
2d at 325.
Finally, just as in R.A.V., our statutes do not fall within
the third, more general exception for discrimination that is
unrelated to official suppression of ideas. As we noted, supra
at ___ (slip op. at ___), the Legislature enacted Sections 10 and
11 specifically to outlaw messages of racial or religious hatred.
Thus, we cannot say that Sections 10 and 11 are unrelated to the
official suppression of ideas. The decisions of other State courts support our conclusion that Sections 10 and 11 do not fall within any of the exceptions to the prohibition on content discrimination. See Sheldon, supra, 629 A. 2d at 761-62, (concluding that Maryland statute precluding "burn[ing] or caus[ing] to be burned any cross or other religious symbol upon any private or public property" did not fall within any of the R.A.V. exceptions); Talley, supra, 858 P. 2d at 231 (finding that Washington statute prohibiting "(a) Cross Burning; or (b) Defacement of the property of the victim or a third person with symbols or words when the symbols or words historically or traditionally connote hatred or threats toward the victim" falls squarely within the prohibitions of R.A.V.). But see In re M.S., 22 Cal. Rptr.2d 560, 570-71 (Ct. App. 1993) (finding that California statute providing that no person may "by force or threat of force, willfully injure, intimidate or interfere with, oppress, or threaten any other person * * * because of the other person's race, color, ancestry, national origin, or sexual orientation," and that "no person shall be
convicted * * * based upon speech alone, [unless] the speech
itself threatened violence" falls within all three R.A.V.
exceptions).
Strict scrutiny requires that a regulation be narrowly drawn
to achieve a compelling state interest. Burson v. Freeman, 504
U.S. ___,
112 S. Ct. 1846, 1851,
119 L. Ed.2d 5, 14 (1992). So
exacting is the inquiry under strict scrutiny that the Supreme
Court "readily acknowledges that a law rarely survives such
scrutiny * * *." Id. at ___, 112 S. Ct. at 1852, 119 L. Ed.
2d
at 15. "The existence of adequate content-neutral alternatives
would have precisely the same beneficial effect." Id. at ___,
112 S. Ct. at 2550, 120 L. Ed.
2d at 326. Thus, the St. Paul
ordinance is underinclusive and fails the strict-scrutiny
analysis. Accord Sheldon, supra, 629 A.
2d at 762-63 (finding
that Maryland's statute fails strict scrutiny); Talley, supra,
858 P.
2d at 230-31 (finding Washington statute unconstitutional).
We conclude that Sections 10 and 11 are underinclusive and
thus impermissible under R.A.V.. Sections 10 and 11 serve the
same compelling state interest that the St. Paul ordinance
served: protecting the human rights of members of groups that
historically have been the object of discrimination. But our
hate-crime statutes, like the St. Paul ordinance, are not
narrowly tailored. R.A.V. dictates that where other content-neutral alternatives exist, a statute directed at disfavored
topics is impermissible. Inasmuch as the language of Sections 10
and 11 limits their scope to the disfavored topics of race,
color, creed, and religion, the statutes offend the First
Amendment.
The judgment of the trial court is reversed. The cause is remanded to the Law Division for entry there of judgment dismissing counts one through eight of the indictment and for
further proceedings as may be appropriate on the remaining
counts.
Chief Justice Wilentz and Justices Pollock, Garibaldi, and
Stein join in Justice Clifford's opinion. Justice Stein filed a
separate concurring opinion. Justice O'Hern did not participate.
SUPREME COURT OF NEW JERSEY
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN D. VAWTER and
Defendants-Appellants.
______________________________
STEIN, J., concurring.
I join the Court's opinion declaring unconstitutional N.J.S.A. 2C:33-10 and -11, New Jersey's so-called hate-crime statutes. Variations of New Jersey's 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 epidemic proportions warranting the widespread enactment of laws criminalizing such behavior. I agree especially with the Court's acknowledgment, ante at ___ (slip op. at 2) that we declare New Jersey's hate-crime statutes unconstitutional because we are compelled to do so by the United States Supreme Court's decision in R.A.V. v. City of St. Paul, 505 U.S. ___, 112 S. Ct. 2538, 120 L. Ed.2d 305 (1992), a decision that the Court characterizes as one requiring that "we
depart reluctantly from what we consider traditional First
Amendment jurisprudence * * * ." Ante at ___ (slip op. at 16).
The most distinct aspect of our free
society under law is that all acts of
government are subject to judicial review.
Whether we have agreed with the Supreme Court
or not, we have cherished most its right to
make those judgments. In no other society
does the principle of judicial review have
the moral authority that it has here.
The R.A.V. decision, however, is extraordinary. Its principal impact is to invalidate the hate-crime statutes of New
Jersey and of numerous other states, statutes that undoubtedly
were drafted with a view toward compliance with First Amendment
standards. See, e.g., State v. Sheldon,
629 A.2d 753, 763 (Md.
1993); State v. Ramsey,
430 S.E.2d 511, 514-15 (S.C. 1993); State
v. Talley,
858 P.2d 217, 230 (Wash. 1993). That impact alone
warrants close examination of R.A.V.'s rationale, so substantial
is the number of state legislatures that had determined that
conduct constituting so-called "hate-crimes" should be
criminalized, and that that objective could be achieved
consistent with the First Amendment. See Talley, supra,
858 P. 2d at 219 (Noting that "[n]early every state has passed what has
come to be termed a 'hate crimes statute'"; see also Hate Crimes
Statutes: A 1991 Status Report, ADL Law Report (Anti-Defamation
League of B'nai B'rith, New York, N.Y.), at 6-10 (describing
types of hate crime statutes enacted by various states)
(hereinafter 1991 Status Report). If only to learn where they
went astray, state legislators, as well as their constituents
whose complaints inspired enactment of hate-crime laws, have a
special interest in understanding R.A.V.'s holding.
opinion convey a sense of astonishment about the Court's
unexpected treatment of the First Amendment questions presented
by R.A.V. Justice White observed:
* * * *
Today, the Court has disregarded two
established principles of First Amendment law
without providing a coherent replacement
theory. Its decision is an arid, doctrinaire
interpretation, driven by the frequently
irresistible impulse of judges to tinker with
the First Amendment. The decision is
mischievous at best and will surely confuse
the lower courts. I join the judgment, but
not the folly of the opinion.
[505 U.S. at ___, ___, 112 S. Ct. at 2251,
Justice Blackmun's concurring opinion questioned the
majority's true objectives:
I regret what the Court has done in this
case. The majority opinion signals one of
two possibilities: it will serve as
precedent for future cases, or it will not.
Either result is disheartening.
* * * * In the second instance is the possibility that this case will not significantly alter First Amendment jurisprudence, but, instead, will be regarded as an aberration -- a case where the Court manipulated doctrine to strike down an ordinance whose premise it opposed, namely, that racial threats and verbal assaults are
of greater harm than other fighting words. I
fear that the Court has been distracted from
its proper mission by the temptation to
decide the issue over "politically correct
speech" and "cultural diversity," neither of
which is presented here. If this is the
meaning of today's opinion, it is perhaps
even more regrettable.
I see no First Amendment values that are
compromised by a law that prohibits hoodlums
from driving minorities out of their homes by
burning crosses on their lawns, but I see
great harm in preventing the people of Saint
Paul from specifically punishing the race-based fighting words that so prejudice their
community.
[505 U.S. at ___, 112 S. Ct. at 2560-61,
The concurring opinion of Justice Stevens emphasizes, as did
Justice White's, the extent of R.A.V.'s departure from generally
accepted First Amendment principles:
* * * * In sum, the central premise of the Court's ruling -- that "[c]ontent-based regulations are presumptively invalid" -- has simplistic appeal, but lacks support in our First Amendment jurisprudence. To make matters worse, the Court today extends this overstated claim to reach categories of hitherto unprotected speech and, in doing so, wreaks havoc in an area of settled law. Finally, although the Court recognizes
exceptions to its new principle, those
exceptions undermine its very conclusion that
the St. Paul ordinance is unconstitutional.
Stated directly, the majority's position
cannot withstand scrutiny.
[505 U.S. at ___, ___, 112 S. Ct. at 2562-63,
2566, 120 L. Ed.
2d at 341-42, 345-46
(footnote omitted).]
My focus is on the central holding and, in my view, the
basic flaw in the R.A.V. opinion: that the St. Paul Bias-Motivated Crime Ordinance impermissibly regulates speech based on
its content, 505 U.S. at ___, 112 S. Ct. at 2547, 120 L. Ed.
2d
at 323, and on its viewpoint, ibid., and cannot be sustained on
the ground that the ordinance is narrowly tailored to serve
compelling state interests. Id. at ___, 112 S. Ct. at 2549-50,
120 L. Ed.
2d at 325-26.
Using language substantially similar to that contained in
New Jersey's hate-crime statutes, N.J.S.A. 2C:33-10 and -11, the
St. Paul, Minnesota, Bias-Motivated Crime Ordinance, invalidated
by the Court in R.A.V., provided:
The defendant in R.A.V. was prosecuted under the St. Paul
Bias-Motivated Crime Ordinance because he, along with some
teenagers, had burned a cross during the night inside the fenced
yard of a house occupied by an African-American family. The
trial court dismissed the charge before trial, concluding that
the ordinance prohibited expressive conduct in violation of the
First Amendment. The Minnesota Supreme Court reversed,
construing the ordinance as prohibiting only "'fighting words' -
conduct that itself inflicts injury or tends to incite immediate
violence." In re Welfare of R.A.V.,
464 N.W.2d 507, 510 (1991)
(citing Chaplinsky v. New Hampshire,
315 U.S. 568, 572,
62 S. Ct. 766, 769, 86 L. Ed. 1031, 1035 (1942)). Concluding that the
ordinance prohibited only conduct unprotected by the First
Amendment and was "narrowly tailored * * * [to accomplish] the
compelling governmental interest in protecting the community
against bias-motivated threats to public safety and order," the
Minnesota Supreme Court sustained the validity of the St. Paul
ordinance. Id. at 511. construed the ordinance to prohibit only fighting words, the Minnesota Court nevertheless had emphasized that the ordinance prohibits "only those displays that one knows or should know will create anger, alarm or resentment based on racial, ethnic, gender or religious bias." R.A.V., supra, 505 U.S. |