(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
A- 15 September Term 1993

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.

STEVEN D. VAWTER and
DAVID J. KEARNS,

    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
CLIFFORD, J.

    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.

Section 11 provides:

        
        A person is guilty of a crime of the fourth degree if he purposely defaces or damages, without authorization of the owner or tenant, any private premises or property primarily

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
             § 292.02 (1990).]

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
§ 9A.36.080(1), which "enhances punishment for [criminal] conduct where the defendant chooses his or her victim because of [the victim's] perceived membership in a protected category," is aimed at conduct). We are satisfied, however, that Sections 10 and 11 are more similar to the former category of statute than to the latter. 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 expressions of hate themselves.

    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
* * * that in the context of history carry a clear message of racial supremacy, hatred, persecution, and degradation of certain groups." Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2365 (1989). Such messages are not only offensive and contemptible,

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)).
    If "'the governmental interest [behind Sections 10 and 11] is unrelated to the suppression of free expression,'" id. at 407, 109 S. Ct. at 2540, 105 L. Ed. 2d at 355 (quoting United States v. O'Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 1679, 20 L. Ed.2d 672, 680 (1968)), the First Amendment requires that the regulation meet only the lenient O'Brien test. Under that test,

        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,
             88 S. Ct. at 1679, 20 L. Ed 2d
             at 680.]

    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-
             49, 120 L. Ed. 2d at 324.]

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,
             120 L. Ed. 2d at 321.]

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
* * * 'undercut[s] significantly' any defense [that a] statute [is narrowly-tailored]." R.A.V., supra, 505 U.S. at ___, 112 S. Ct. at 2550, 120 L. Ed. 2d at 326 (quoting Boos, supra, 485 U.S. at 329, 108 S. Ct. at 1168, 99 L. Ed. 2d at 349).
    In R.A.V., supra, the Supreme Court rejected the argument that the St. Paul ordinance survives strict scrutiny. 505 U.S. at ___, 112 S. Ct. at 2549-50, 120 L. Ed. 2d at 325-26. Justice Scalia did find a compelling interest: "the ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination * * *." Id. at ___, 112 S. Ct. at 2549, 120 L. Ed. 2d at 325. But he concluded that the St. Paul ordinance is not narrowly tailored because "[a]n ordinance not limited to the favored topics, for example,

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
                            A- 15 September Term 1993

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.

STEVEN D. VAWTER and
DAVID J. KEARNS,

    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).
    I write separately to explain my disagreement and dismay over the Supreme Court's decision in R.A.V. My views concerning the merits of the Supreme Court's opinion in R.A.V. 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 "inevitab[ly] [to shadow] the moral authority of the United States Supreme Court." State v. Hempele, 120 N.J. 182, 226 (1990) (O'Hern, J., concurring in part and dissenting in part). As Justice O'Hern thoughtfully 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.

    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.
    Another, and more disconcerting, aspect of the Supreme Court's decision in R.A.V., given its national significance, is the severity and intensity of the criticism that the four concurring members, who joined the Court's judgment but not its opinion, addressed to the rationale adopted by the majority opinion. The tenor and sweep of the objections to the Court's

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:
         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 2251,
        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.A.V.'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.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:
            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.

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

    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.
    The R.A.V. 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." R.A.V., supra, 505 U.S.