State v. Vawter , 136 N.J. 56 ( 1994 )

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 61, 642 A.2d at 352, 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.AV. 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 70, 642 A.2d at 357.

I write separately to explain my disagreement and dismay over the United States Supreme Court’s decision in RAV. My views concerning the merits of the Supreme Court’s opinion in RAV. are, of course, irrelevant to our disposition of this appeal. In cases that turn on interpretations of the United States Constitution, our mandate is simple—to adhere to the decisions of our nation’s highest Court, whose authority is final. Criticism by a state court judge addressed to a Supreme Court decision interpreting the federal Constitution might be regarded as intemperate, tending “inevitably] [to shadow] the moral authority of the United States Supreme Court.” State v. Hempele, 120 N.J. 182, 226, 576 A.2d 793 (1990) (O’Hem, J., concurring in part and dissenting in part). As Justice O’Hem observed in Hempele:

Throughout our history, we have maintained a resolute trust in that Court as the guardian of our liberties.

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.

Ubid,]

The RAV. 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, 332 Md, 45, 629 A.2d 753, 763 (1993); State v. Ramsey, 430 S.E.2d 511, 514-15 (S.C.1993); State v. Talley, 122 Wash.2d 192, 858 P.2d 217, 230 (1993). That effect alone warrants close examination of R.AV.’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 “[njearly 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.), 1991, 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 £AK’s holding.

Another, and more disconcerting, aspect of the Supreme Court’s decision in R.AV., given its national significance, is the severity and intensity of the criticism that the four concurring members addressed to the rationale adopted by the majority opinion. Those members joined the Court’s judgment only, not its opinion. Their objections to the Court’s opinion convey a sense of astonishment about the Court’s unexpected treatment of the First Amendment questions. Justice White observed:

But in the present case, the majority casts aside long-established First Amendment doctrine without the benefit of briefing and adopts an untried theory. This is hardly a judicious way of proceeding, and the Court’s reasoning in reaching its result is transparently wrong.

********

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 2551, 2560, 120 L.Ed.2d at 328, 339.]

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, 120 L.Ed.2d at 339.]

The concurring opinion of Justice Stevens emphasizes, as did Justice White’s, the extent of R.AV.’s departure from generally-accepted First Amendment principles:

Within a particular “proscribable” category of expression, the Court holds, a government must either proscribe all speech or no speech at all. This aspect of the Court’s ruling fundamentally misunderstands the role and constitutional status of content-based regulations on speech, conflicts with the very nature of First Amendment jurisprudence, and disrupts well-settled principles of First Amendment law.

********

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.AV. 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.

I

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 RAV., provided:

“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.”

[/d at-, 112 S.Ct at 2541, 120 L.Ed.2d at 315 (quoting St. Paul, Minn. Legis.Code § 292.02 (1990)).]

The defendant in RAV. 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.AV., 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.

The R.AV. Supreme Court majority opinion declined to address the contention that the St. Paul ordinance was invalidly overbroad. 505 U.S. at-, 112 S.Ct. at 2542, 120 L.Ed.2d at 316. The concurring Justices, however, agreed with Justice White’s conclusion that although the Minnesota Supreme Court had 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.’ ” Id. at-, 112 S.Ct.at 2559, 120 L.Ed.2d at 338 (White, J., concurring in the judgment) (quoting In re Welfare of R.AV., supra, 464 N.W.2d at 510); see id. at-, 112 S.Ct. at 2561, 120 L.Ed.2d at 339 (Blackmun, J., concurring in the judgment); id. at -, 112 S.Ct. at 2561, 120 L.Ed.2d at 340 (Stevens, J., concurring in the judgment). Justice White, understanding the Minnesota Supreme Court to have ruled “that St. Paul may constitutionally prohibit expression that ‘by its very utterance’ causes ‘anger, alarm or resentment,’" 505 U.S. at-, 112 S.Ct. at 2559, 120 L.Ed.2d at 338, concluded that the ordinance was invalid because of overbreadth:

Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected.

In the First Amendment context, “[c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct 2502, 2508, 96 L.Ed.2d 398 (1987) (citation omitted). The St. Paul antibias ordinance is such a law. Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment. The ordinance is therefore fatally overbroad and invalid on its face.

[M at-, 112 S.Ct at 2559-60; 120 L.Ed.2d at 338-39 (citations omitted) (footnote omitted).]

Ignoring the overbreadth issue, the Supreme Court majority opinion accepted as authoritative the Minnesota Supreme Court’s determination that the St. Paul ordinance reached only conduct that amounts to fighting words, in accordance with Chaplinsky, supra, 315 U.S. at 572, 62 S.Ct. at 769, 86 L.Ed. at 1035 (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 2541, 120 L.Ed.2d at 316. The Court acknowledged that fighting words, along with defamation and obscenity, are among the categories of speech with respect to which restrictions on content are permitted because they are ‘“of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” Id. at-, 112 S.Ct. at 2543, 120 L.Ed.2d at 317 (quoting Chaplinsky, supra, 315 U.S. at 572, 62 S.Ct. at 769, 86 L.Ed. at 1035). Although the Supreme Court has said that those proscribable categories of expression are “ ‘not within the area of constitutionally protected speech,’ ” ibid, (quoting Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498, 1506 (1957)), the R.A.V. majority opinion observed that that characterization is not literally true, noting that those categories of speech “can * * * be regulated because of their constitutionally proscribable content,” but cannot be made “the vehicles for content discrimination unrelated to their distinctively proscribable content.” Id. at-, 112 S.Ct. at 2543, 120 L.Ed.2d at 318. Accordingly, the Court noted: “The government may not regulate use [of fighting words] based on hostility—or favoritism—towards the underlying message expressed.” Id. at-, 112 S.Ct. at 2545, 120 L.Ed.2d at 320.

Having established its basic premise that even fighting words, a category of generally-proscribable speech, can be a vehicle for content discrimination, the R.A.V. opinion concludes that the St. Paul ordinance is facially unconstitutional because it impermissibly discriminates based on the subject of bias-motivated speech. Id. at-, 112 S.Ct. at 2547-48, 120 L.Ed.2d at 323-24. The Court notes that the St. Paul ordinance applies only to fighting words that provoke violence “on the basis of race, color, creed, religion or gender”; but that those who wish to use fighting words—“to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered.” Id. at -, 112 S.Ct. at 2547, 120 L.Ed.2d at 323. The Court determined that that distinction in the content of the speech regulated by the St. Paul ordinance was unconstitutional: “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” Ibid. In effect, the Court concluded that St. Paul could regulate all fighting words or none, but could not single out for regulation only those fighting words that provoke violence based on race, color, creed, religion, or gender.

The Court then determined that the St. Paul ordinance also constituted viewpoint discrimination:

“Fighting words” that do not themselves invoke race, color, religion, or gender— aspersions upon a person’s mother, for example—would seemingly be usable [at pleasure] in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by the speaker’s opponents. * * * St Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.

[/bid.]

In that respect the majority opinion viewed the St. Paul ordinance as one taking sides in a dispute between racists and their targets. “By prohibiting fighting words based on race, while allowing other fighting words, the law barred only the fighting words that the racists (and not the fighting words that their targets) would wish to use.” Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Sup.Ct.Rev. 29, 70.

In prohibiting fighting words that provoke violence only on the basis of race, color, creed, religion, or gender, the St. Paul ordinance obviously regulates “speech” based on its content: speech that provokes violence because it is addressed to the five prohibited subjects is barred; speech that provokes violence because it is addressed to other subjects—political affiliation, union membership, or homosexuality, for example—is not barred. Aside from overbreadth problems, Justices White and Stevens, although for different reasons, would have upheld the ordinance even though they acknowledged that it regulated speech based on its content. In the view of Justice White, the majority’s concession that the St. Paul ordinance regulates only fighting words to which “the First Amendment does not apply * * * because their expressive content is worthless or of de minimis value to society,” 505 U.S. at-, 112 S.Ct. at 2552, 120 L.Ed.2d at 328, (White, J., concurring), establishes that a content-based regulation of fighting words is insulated from First Amendment review:

It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil, [New York v. Ferber, 458 U.S. 747, 763-64, 102 S.Ct. 3348, 3358-59, 73 L.Ed.2d 1113, 1126-27 (1982) ]; but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is by definition worthless and undeserving of constitutional protection.

[Id. at-, 112 S.Ct at 2553, 120 L.Ed.2A at 330.]

In addition, Justice White urged that even if the ordinance constituted a content-based regulation of protected expression, it would survive strict-scrutiny review as a regulation serving a compelling state interest narrowly drawn to achieve that purpose. Rejecting the majority’s observation that the St. Paul ordinance could not survive strict scrutiny because “[a]n ordinance not limited to the favored topics would have precisely the same beneficial effect,” id, at-, 112 S.Ct. at 2541, 120 L.Ed.2d at 325, Justice White relied on Burson v. Freeman, 504 U.S. -, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), in which a plurality of the Court sustained a Tennessee statute prohibiting the solicitation of votes and the distribution of campaign literature within one-hundred feet of the entrance to a polling place. Noting that the statute in Burson restricted only political speech, Justice White observed that the Burson plurality had

squarely rejected the proposition that the legislation failed First Amendment review because it could have been drafted in broader, content-neutral terms:

“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist"

[505 U.S. at-, 112 S.Ct at 2555, 120 L.Ed.2d at 332 (quoting Burson, supra, 504 U.S. at-, 112 S.Ct at 1856, 119 L.Ed.2d at 20) (emphasis added).]

Justice Stevens was unwilling to rely on the majority’s concession that the St. Paul ordinance regulates only fighting words, observing that “[t]he categorical approach sweeps too broadly when it declares that all such expression is beyond the protection of the First Amendment.” Id at-, 112 S.Ct. at 2566-67, 120 L.Ed.2d at 347 (Stevens, J., concurring). In that respect Justice Stevens’s view is consistent with that of commentators who have urged abandonment of or diminished reliance on the fighting-words doctrine. See, e.g., Laurence H. Tribe, American Constitutional Law, § 12-18, at 929 n. 9 (2d ed. 1988); Stephen W. Gard, Fighting Words as Free Speech, 58 Wash.U.L.Q. 531 (1980); Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U.ChiL.Rev. 20, 30-35 (1975); Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal?, 1990 Duke L.J. 484, 508-14. Rejecting the categorical approach as one that “sacrifices subtlety for clarity,” 505 U.S. at-, 112 S.Ct. at 2566, 120 L.Ed.2d at 346, Justice Stevens similarly rejected as “absolutism” the majority’s view that content-based regulations, even of fighting words, are presumptively invalid. Id. at-, 112 S.Ct. at 2564, 120 L.Ed.2d at 343. Observing that selective regulation of speech based on content was unavoidable, Justice Stevens noted that the Court frequently had upheld content-based regulations of speech. Ibid, (citing FCC v. Pacifica Found., 438 US. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (upholding restriction on broadcast of specific indecent words); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (upholding zoning ordinances that regulated movie theaters based on content of films shown); Lehman v. City of Shaker Heights, 418 US. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (upholding ordinance prohibiting political advertising but permitting commercial advertising on city buses); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (upholding state statute restricting speech of state employees concerning partisan political matters)).

As an alternative to Justice White’s categorical approach and the majority’s formulation that content-based regulation is presumptively invalid, Justice Stevens observed that the Court’s First Amendment jurisprudence reveals “a more complex and subtle analysis, one that considers the content and context of the regulated speech, and the nature and scope of the restriction on speech.” 505 U.S. at-, 112 S.Ct. at 2567, 120 L.Ed.2d at 347. Justice Stevens explained that “the scope of protection provided expressive activity depends in part upon its content and character,” id. at -, 112 S.Ct. at 2567, 120 L.Ed.2d at 348, noting that the First Amendment accords greater protection to political speech than to commercial speech or to sexually explicit speech, id. at-, 112 S.Ct. at 2567-68, 120 L.Ed.2d at 348, and that “‘government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.’ ” Id. at-, 112 S.Ct. at 2568, 120 L.Ed.2d at 348 (quoting Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 2540, 105 L.Ed.2d 342, 354-55 (1989)). Moreover, he noted that the context of the regulated speech affects the scope of protection afforded it. Thus, “the presence of a ‘ “captive audience,” ’ ” ibid, (quoting Lehman, supra, 418 U.S. at 302, 94 S.Ct. at 2717, 41 L.Ed.2d at 776 (quoting Public Util. Comm’n v. Pollack, 343 U.S. 451, 468, 72 S.Ct. 813, 823, 96 L.Ed. 1068, 1080 (1952) (Douglas, J., dissenting))), or “the distinctive character of a secondary-school environment,” ibid., affects the Court’s First Amendment analysis. Similarly, Justice Stevens observed that the nature of a restriction on speech “informs our evaluation of its constitutionality,” id. at-, 112 S.Ct. at 2568, 120 L.Ed.2d at 348-49, noting that restrictions based on viewpoint are regarded as more pernicious than those based only on subject matter. Id. at-, 112 S.Ct. at 2568, 120 L.Ed.2d at 349. Finally, Justice Stevens noted that the scope of content-based restrictions affect their validity. Id. at-, 112 S.Ct. at 2569, 120 L.Ed.2d at 349.

That analytical framework illuminates the critical distinction between Justice Stevens’ evaluation of the St. Paul ordinance and that of the majority. The Court’s approach is presumptive and categorical. The majority concluded that the St. Paul ordinance distinguishes—as it surely does—between fighting words addressed to the restricted subjects and all other fighting words. Viewing that distinction as one based impermissibly on content, the Court rejected the contention that the ordinance is narrowly tailored to serve compelling state interests because “[a]n ordinance not limited to the favored topics * * * would have precisely the same beneficial effect.” Id. at-, 112 S.Ct. at 2549, 120 L.Ed.2d at 326.

In sharp contrast, Justice Stevens first assessed the content and character of the regulated activity, noting that the ordinance applies only to “low-value speech, namely, fighting words,” and that it regulates only “ ‘expressive conduct [rather] than * * * the written or spoken word.’” Id. at-, 112 S.Ct. at 2569, 120 L.Ed.2d at 350 (quoting Johnson, supra, 491 U.S. at 406, 109 S.Ct at 2540, 105 L.Ed.2d at 355) (alterations in original). Concerning context, he noted that the ordinance restricts speech only “in confrontational and potentially violent situations,” ibid, such as that illustrated by the case at hand: “The cross-burning in this case—directed as it was to a single African-American family trapped in their home—was nothing more than a crude form of physical intimidation. That this crossburning sends a message of racial hostility does not automatically endow it with complete constitutional protection.” Ibid. Finally, Justice Stevens concluded that St. Paul’s restriction on speech is based neither on subject matter nor viewpoint, “but rather on the basis of the harm the speech causes. * * * [T]he ordinance regulates only a subcategory of expression that causes injuries based on ‘race, color, creed, religion or gender,’ not a subcategory that involves discussions that concern those characteristics.” Id. at-, 112 S.Ct at 2570, 120 L.Ed.2d at 350-51.

II

Regulation of speech based on content, subject matter, or viewpoint has attracted an outpouring of scholarly commentary. See, e.g., Daniel A. Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo.L.J. 727 (1980); Karst, supra, 43 U.Chi.L.Rev. 20; Martin H. Redish, The Content Distinction in First Amendment Analysis, 34 Stan.L.Rev. 113 (1981); Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand.L.Rev. 265 (1981); Paul B. Stephan III, The First Amendment and Content Discrimination, 68 Va.L.Rev. 203 (1982); Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm. & Mary L.Rev. 189 (1983); Geoffrey R. Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U.Chi.L.Rev. 81 (1978); Cass R. Sunstein, Words, Conduct, Caste, 60 U.ChiL.Rev. 795 (1993). Although variations in the formulation of content-based regulation of speech may present difficult and controversial First Amendment questions, courts need not abandon pragmatism and common sense in favor of “arid, doctrinaire interpretation.” R.A.V., supra, 505 U.S. at-, 112 S.Ct. at 2560, 120 L.Ed.2d at 339 (White, J., concurring). Even those commentators who advocate a categorical approach to First Amendment adjudication acknowledge the need to allow for enough play in the joints to avoid anomalous results:

What we mean when we express animosity towards content regulation is that we should not create subcategories within the first amendment that are inconsistent with the theoretical premises of the concept of freedom of speech. Moreover, we do not wish to create subcategories that, either because of the inherent indeterminacy of the category or because of the difficulty in verbally describing that subcategory, create an undue risk of oversuppression. While these are powerful reasons, they are not so conclusive that they should prevail in every case. When strong reasons for creating a subcategory present themselves, and when the dangers can be minimized or eliminated, the mechanized uttering of “content regulation” need not prevent the embodiment in first amendment doctrine of the plain fact that there are different varieties of speech.

[Schauer, supra, 34 Vand.L.Rev. at 290 (footnote omitted).]

Although the Supreme Court divided five to four on the constitutionality of the St. Paul ordinance (apart from the issue of overbreadth), I find incontestable the superiority of the balancing test advocated by Justice Stevens compared with the categorical and presumptive approach adopted by the R.AV. majority. To hold the St. Paul ordinance presumptively invalid because it fails to criminalize fighting words addressed to topics other than race, color, creed, religion, or gender ignores not only established First Amendment jurisprudence but also common experience as well.

The RAV. majority takes pains to classify the primary vice of the St. Paul ordinance not as “underinclusiveness” but as “content discrimination”: “In our view, the First Amendment imposes not an ‘underinclusiveness’ limitation but a ‘content discrimination’ limitation upon a State’s prohibition of proscribable speech.” R.AV., supra, 505 U.S. at-, 112 S.Ct. at 2545, 120 L.Ed.2d at 320. But when the R.AV. majority explains what it means by content discrimination, its explanation underscores that the “discrimination” in content that renders St. Paul’s ordinance facially invalid derives solely from St. Paul’s failure to have expanded the breadth of the ordinance to criminalize fighting words addressed to other subjects—in other words, the ordinance is “underinclusive”:

Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by the Minnesota Supreme Court’s construction to reach only those symbols or displays that amount to “fighting words,” the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

[Id, at-, 112 S.Ct at 2547, 120 L.Ed.2d at 323.]

But the R.AV. Court’s conclusion that “[t]he First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects” begs the very question that the Court has resolved differently in a number of cases involving underinclusive regulations of speech: whether a law targeting some but not all speech in a category is invalid as a content-based discrimination or is sustainable by deferring to the legislative judgment concerning which of several causes of a problem government elects to regulate. See William E. Lee, The First Amendment Doctrine of Underbreadth, 71 Wash.U.L.Q. 637, 638 (1993); Stone, supra, 25 Wm. & Mary L.Rev. at 202-07. Characteristically, the Court has invalidated underinclusive regulations under circumstances in which the governmental justification for singling out the burdened class or favoring the excluded class is considered insufficient. See, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. -, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (invalidating Cincinnati ordinance intended to promote aesthetics by prohibiting use of newsracks on public property to dispense commercial publications but permitting use of newsracks to dispense newspapers); Florida Star v. B.J.F., 491 U.S. 524, 540, 109 S.Ct. 2603, 2612, 105 L.Ed.2d 443, 459 (1989) (holding unconstitutional under First Amendment imposition of civil damages against newspaper that violated Florida statute by publishing identity of rape victim, noting that victim’s identity had been lawfully obtained and statute was underinclusive in not prohibiting dissemination of victim’s identity by means other than publication in any “ ‘instrument of mass communication’ ” (quoting Fla.Stat. § 794.03 (1987)); Arkansas Writers’ Project, Inc. v. Ragland 481 U.S. 221, 234, 107 S.Ct 1722, 1730, 95 L.Ed.2d 209, 223 (1987) (invalidating under First Amendment Arkansas sales tax that taxed general-interest magazines but exempted newspapers and religious, professional, trade, and sports journals, noting that Arkansas “advanced no compelling justification for selective content-based taxation of certain magazines”); First Nat’l Bank v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (invalidating under First Amendment Massachusetts criminal statute prohibiting only banks and business corporations from making expenditures to influence vote on referendum proposals, and finding no compelling state interest sufficient to justify restrictions on corporate speech); Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125, 134 (1975) (invalidating on First Amendment grounds ordinance prohibiting drive-in movie theaters with screens visible from public streets from showing films containing nudity; observing that underinclusive classifications may be sustained on theory that government may “deal with one part of * * * problem without addressing all of it,” but finding Jacksonville ordinance strikingly underinclusive and lacking any compelling governmental interest sufficient to sustain it); Police Dept. v. Mosley, 408 U.S. 92, 101-02, 92 S.Ct. 2286, 2293-94, 33 L.Ed.2d 212, 220 (1972) (invalidating on equal-protection grounds Chicago ordinance prohibiting all picketing, except peaceful labor picketing, within 150 feet of school buildings on ground that ordinance impermissibly relies on content-based distinction in defining allowable picketing; observing that governmental interest advanced by City was insufficient to justify content-based discrimination among pickets).

In other settings, however, the Court has not been reluctant to evaluate the governmental interest asserted in justification of allegedly-underinclusive restrictions on speech, and has determined that adequate reasons existed to justify piecemeal regulation. The most recent illustration of that approach is Burson, supra, 504 U.S.-, 112 S.Ct. 1846, 119 L.Ed.2d 5, in which the Court upheld against a First Amendment challenge the validity of a Tennessee statute prohibiting the solicitation of votes and the display or distribution of campaign literature within one-hundred feet of the entrance to a polling place. The Court pointedly rejected the contention that the Tennessee statute was underinclusive for failing to regulate other forms of speech such as charitable and commercial solicitation and exit polling within that radius:

[TJhere is * * * ample evidence that political candidates have used campaign workers to commit voter intimidation or electoral fraud. In contrast, there is simply no evidence that political candidates have used other forms of solicitation or exit polling to commit such electoral abuses. States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist.

[Id. at-, 112 S.Ct. at 1856, 119 L.Ed.2d at 19-20.]

Other cases sustaining allegedly underinclusive regulation of speech include Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 666, 110 S.Ct. 1391, 1401, 108 L.Ed.2d 652, 668 (1990) (upholding against First Amendment challenge Michigan statute prohibiting corporations from using corporate funds for independent expenditures on behalf of or in opposition to candidates for state office, and finding regulation supported by compelling state interest in limiting political influence of accumulated corporate wealth; concerning underinclusiveness challenge, Court determined that Michigan’s decision “to exclude unincorporated labor unions from [statute] is therefore justified by the crucial differences between unions and corporations”); United States v. Kokinda, 497 U.S. 720, 724, 733, 110 S.Ct. 3115, 3118, 3128, 111 L.Ed.2d 571, 579-80, 586 (1990) (upholding against First Amendment challenge postal regulation barring “[s]oliciting alms and contributions, campaigning for election * * *, commercial soliciting and vending, and displaying or distributing commercial advertising” on Postal Service property; rejecting contention that regulation is underinclusive, Court characterized as “anomalous that the Service’s allowance of some avenues of speech would be relied upon as evidence that it is impermissively suppressing other speech”); City Council v. Taxpayers for Vincent, 466 U.S. 789, 811, 104 S.Ct. 2118, 2132, 80 L.Ed.2d 772, 791 (1984) (upholding against First Amendment challenge by candidate for city council municipal ordinance prohibiting posting of signs on public property; concerning underinclusiveness challenge, Court finds that aesthetic interest in eliminating signs on public property not compromised by allowing signs on private property, and observing that citizen’s interest in controlling use of own property justifies disparate treatment); Renton v. Playtime Theatres, 475 U.S. 41, 52-53, 106 S.Ct. 925, 931, 89 L.Ed.2d 29, 41 (1986) (upholding against First Amendment challenge zoning ordinance prohibiting adult motion-picture theatres from locating within 1,000 feet of residential zone, church, park, or school; rejecting underinclusiveness argument, Court stated: “That Renton chose first to address the potential problems created by one particular kind of adult business in no way suggests that the city has ‘singled out’ adult theaters for discriminatory treatment.”); cf. FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 258 n. 11, 107 S.Ct. 616, 628 n. 11, 93 L.Ed.2d 539, 557 n. 11 (1986) (holding section 316 of Federal Election Campaign Act, 2 U.S.C.A. § 441b, which prohibits corporations from expending treasury funds in connection with elections to public office, unconstitutional as applied to nonprofit corporation formed to promote “pro-life” causes; rejecting underinclusiveness challenge and observing, “That Congress does not at present seek to regulate every possible type of firm fitting this description does not undermine its justification for regulating corporations.”).

On at least one occasion the Court rejected an underinclusiveness challenge leveled at a statute criminalizing child pornography, a category of speech that the Court classified, as it had fighting words, as outside the realm of constitutionally-protected expression. Ferber, supra, 458 U.S. at 754, 763-64, 102 S.Ct. at 3353, 3358, 73 L.Ed.2d at 1120-21, 1126-27. The statute prohibited the promotion of sexual performances using children under the age of sixteen, and proof that the performances were obscene was not necessary to establish a violation. The New York Court of Appeals had determined that the statute was unconstitutionally underinclusive, in People v. Ferber, 52 N.Y. 2d 674, 439 N.Y.S.2d 863, 422 N.E.2d 523 (1981), “because it discriminated against visual portrayals of children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous activity.” Ferber, supra, 458 U.S. at 752, 102 S.Ct. at 3352, 73 L.Ed.2d at 1120. Reversing, the Supreme Court characterized the statute as describing “a category of material the production and distribution of which is not entitled to First Amendment protection. It is therefore clear that there is nothing unconstitutionally ‘underinclusive’ about a statute that singles out this category of material for proscription.” Id. at 765, 102 S.Ct. at 3359, 73 L.Ed.2d at 1128. The Court distinguished its holding from Erznoznik, supra, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125, in which the Jacksonville ordinance

impermissibly singled out movies with nudity for special treatment while failing to regulate other protected speech which created the same alleged risk to traffic. Today, we hold that child pornography as defined in § 263.15 is unprotected speech subject to content-based regulation. Hence, it cannot be underinclusive or unconstitutional for a State to do precisely that

[Ferber, supra, 458 U.S. at 765 n. 18, 102 S.Ct at 3359 n. 18, 73 L.Ed.2d at 1128 n. 18 (emphasis added).]

Justice Stevens’s pointed observation that the R.AV. majority opinion “wreaks havoc in an area of settled law,” 505 U.S. at-, 112 S.Ct. at 2566, 120 L.Ed.2d at 345, is better understood in the context of the Court’s demonstrated flexibility in resolving claims of underinclusive regulation of expression. In rejecting an under-inclusiveness challenge to a restriction of political speech—a category of speech acknowledged to be entitled to the most comprehensive First Amendment protection, see William J. Brennan, Jr., The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv.L.Rev. 1, 11-12 (1965)—the Court in Burson, supra, readily deferred to the Tennessee legislature’s determination that the regulated speech was the only form of expression requiring governmental restriction. 504 U.S. at-, 112 S.Ct. at 1855-56, 119 L.Ed.2d at 19-20. And in Ferber, supra, in which child pornography was categorized, analogously to fighting words, as beyond the realm of constitutionally-protected expression, 458 U.S. at 763-64, 102 S.Ct. at 3358, 73 L.Ed.2d at 1126-27, the Court deemed it unnecessary to require any governmental justification for the statute’s underinclusiveness. Id. at 765, 102 S.Ct. at 3359, 73 L.Ed.2d at 1128.

Had the R.A.V. majority accorded minimal deference to First Amendment precedent, it would have sustained the St. Paul ordinance (subject to overbreadth problems) by recognizing the obvious governmental interest in criminalizing that subset of fighting words addressed to the designated subjects (race, color, creed, religion, or gender) because bias-motivated threats that tend to incite violence are predominantly addressed to one or more of those subjects. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich.L.Rev. 2320 (1989) (detailing escalation of bias-related crime and urging criminalization of narrow class of racist speech); Hate Crime Statutes: A Response to Anti-Semitism, Vandalism and Violent Bigotry, ADL Law Report (Anti-Defamation League of B’nai B’rith, New York, N.Y.), Spring/Summer 1988 (summarizing statistical data describing most frequent victims and commonly reported forms of hate crimes and compiling relevant state and federal legislation). By including race, color, and religion among the proscribed topics of bias-motivated speech, St. Paul’s governmental determination closely resembled that reached by Congress in enacting the Federal Hate Crime Statistics Act, Pub.L. No. 101-275 (codified at 28 U.S.C.A § 534 (note) (1990)), mandating that the Attorney General acquire data over a five-year period about “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity * * Ibid. That St. Paul elected not to prohibit , bias-motivated speech addressed to other topics reflects not a preference for one type of speech over another, but simply a decision by public officials to “address the problems that confront them.” Burson, supra, 504 U.S. at-, 112 S.Ct. at 1856, 119 L.Ed.2d at 20.

Closely related to the R.AV. majority’s reliance on content discrimination as a ground for invalidating the St. Paul ordinance is its insistence that the ordinance suffers from the additional flaw of discrimination on the basis of viewpoint. R.A.V., supra, 505 U.S. at-, 112 S.Ct at 2547-48, 120 L.Ed.2d at 323. The RAV. majority theorizes that the St. Paul ordinance can be construed as choosing sides in a debate between racists and their targets, barring the use of fighting words by racists but allowing the targets of racists to retaliate by using fighting words. See Kagan, supra, 1992 Sup.Ct.Rev. at 70. That highly theoretical characterization of the St. Paul ordinance should be understood simply as another version of underinclusiveness: if the ordinance banned all fighting words, rather than only those addressed to the designated subjects, neither racists nor their targets would be disadvantaged. Two commentators who analyzed the claim of viewpoint discrimination disagreed on whether the St. Paul ordinance could be so classified. Compare Kagan, supra, 1992 Sup.Ct.Rev. at 70-74 (acknowledging that St. Paul ordinance, as applied but not facially, could effect form of viewpoint discrimination but asserting that such ordinances are sustainable if both necessary and narrowly tailored to serve compelling interest) with Sunstein, supra, 60 U.ChiL.Rev. at 829 (stating, “Viewpoint discrimination is not established by the fact that in some hypothetical, one side has greater means of expression than another * * * if the restriction on means has legitimate, neutral justifications.”). Both Professors Kagan and Sunstein agree, however, that the validity of the St. Paul ordinance—whether or not it may theoretically constitute viewpoint discrimination—should be resolved by determining whether the special harm caused by the restricted speech justifies the governmental decision to single out that speech for special sanction. Kagan, supra, 1992 Sup.Ct.Rev. at 76; Sunstein, supra, 60 U.Chi.L.Rev. at 825.

The historical significance of the bias-related harm threatened by the speech restricted by St. Paul’s ordinance underscores the fundamental imbalance in the majority’s First Amendment analysis. By emphasizing those fighting words that St. Paul has determined it need not regulate, and underestimating the danger posed by the regulated expression, the majority “fundamentally miscomprehends the role of ‘race, color, creed, religion [and] gender’ in contemporary American society.” R.A.V., supra, 505 U.S. at-n. 9, 112 S.Ct. at 2570 n. 9, 120 L.Ed.2d at 351 n. 9 (Stevens, J., concurring) (alterations in original). The R.AV. majority also overlooks the historical context that explains governmental determinations to single out as especially pernicious bias-motivated speech that incites violence based on race and color. One can recall an earlier time in which discrimination based on race and color was authorized by law:

Racial discrimination could be found in all parts of the United States. But it was different in the South, and far more virulent, because it had the force of law. State law condemned blacks to a submerged status from cradle to grave, literally. The law segregated hospitals and cemeteries. It confined black children to separate and grossly inferior public schools. Policemen enforced rules that made blacks ride in the back of the bus and excluded them from most hotels and restaurants. And blacks had little or no voice in making the law, for in much of the South they were denied the right to vote.

Officially enforced segregation was not some minor phenomenon found only in remote comers of the South. In the middle of the twentieth century black Americans could not eat in a restaurant or enter a movie theater in downtown Washington, D.C. Public schools were segregated in seventeen Southern and border states and in the District of Columbia: areas with 40 percent of the country’s public school enrollment. Through two world wars black men were conscripted to serve in segregated units of the armed forces: a form of federally sanctioned racism that was only ended by President Harry Truman in 1948.

(Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment 15-16 (1991).]

Similarly, religious-based bias and discrimination was commonplace during the first half of this century, and incidents of crime based on religious bigotry have increased significantly in recent years. See 1991 Status Report, supra, at 1.

As society strives to overcome the effects of institutionalized bigotry, the occurrence and resurgence of bias-motivated crime understandably provokes a governmental response. That response is informed not by an impulse to regulate expression discriminatorily based on content or viewpoint, but by a pragmatic desire to respond directly to the most virulent and dangerous formulation of bias-motivated incitements to violence. ‘While a cross-burning as part of a public rally in a stadium may fairly be described as protected speech, burning the same cross on the front lawn of [a] * * * neighbor has an entirely different character.” John P. Stevens, The Freedom of Speech, 102 Yale L.J. 1293, 1310-11 (1993). An interpretation of the First Amendment that prevents government from singling out for regulation those inciteful strains of hate speech that threaten imminent harm will be incomprehensible to public officials and to the citizens whose interests such laws were enacted to protect.

That the Supreme Court’s holding in R.AV. binds us in our disposition of this appeal is indisputable. Whether it persuades us is another question entirely.

STEIN, J., concurs in the result.

For reversal and remandment—Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN-6.

Opposed—None.