Could Maryland pass a hate crime law adding extra punishment for crimes motivated by racial, religious, or ethnic bias without violating the First Amendment?

Plain-English summary

The Governor's Task Force on Violence and Extremism asked the Attorney General whether a proposed "ethnic intimidation bill" would survive a First Amendment challenge. The bill would have taken conduct already criminal under Maryland law, such as trespass, vandalism, or assault, and imposed a higher penalty when that conduct was committed "by reason of the race, religion or national origin" of the victim or another person. The opinion did not reach a clean yes-or-no answer. It found the proposal raised serious constitutional concerns because it singled out a subset of already-punishable conduct for extra punishment based partly on the perpetrator's motivation and, by extension, potentially on protected beliefs, and because it applied even to acts that damaged the property of nonminorities if committed out of racial or religious animus. At the same time, the opinion found no case law that clearly required the bill be struck down, and pointed to a long history of federal and state civil rights statutes that similarly attach criminal or civil liability based on a defendant's discriminatory motivation. Because the constitutional question was genuinely unresolved, and because the Attorney General's role is advisory rather than that of a court with final authority to invalidate a law, the opinion concluded that the bill, if amended to reach only acts aimed directly at a minority group member's person or property, would be defensible and that the Attorney General would not oppose its enactment on constitutional grounds.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the Maryland Attorney General say a hate crime enhancement law was constitutional in 1983?
Not definitively. The opinion described the question as genuinely unresolved, finding no court decision that clearly supported or clearly barred the proposed bill. It concluded only that the bill would "not be clearly unconstitutional" and, on that basis, that the Attorney General would not object to its enactment.

Why did adding a motivation element to a crime raise First Amendment concerns?
Because the proposed bill did not create a new category of criminal conduct; it took acts that were already crimes, like trespass or assault, and imposed a higher penalty only when committed because of the victim's race, religion, or national origin. The opinion explained that laws targeting conduct based partly on the actor's motivation or beliefs can raise free-speech concerns distinct from laws that simply punish new categories of harmful conduct.

Did the opinion compare the bill to existing civil rights laws?
Yes. The opinion pointed to federal civil rights statutes, including 18 U.S.C. §245(b)(2)(A), which similarly makes an act a federal crime only when committed because of the victim's race, color, religion, or national origin. It reasoned that if the proposed bill were unconstitutional for that reason, the same logic could cast doubt on decades of existing civil rights legislation, a result the opinion was reluctant to endorse.

Did the opinion recommend changing the bill before it became law?
Yes. The opinion recommended narrowing the bill so it punished only criminal acts aimed directly at the person or property of a minority group member, rather than any act motivated by racial, religious, or ethnic animus regardless of who or what was targeted. The opinion said this narrower version would fit more closely within the existing civil rights law analogy and would be more likely to survive a court challenge.

Background and statutory framework

The proposed ethnic intimidation bill would have made it a crime, at whatever grading corresponded to the severity of harm, for a person to commit conduct already covered by existing criminal statutes (such as trespass, criminal mischief, harassment, or assault) "by reason of the race, religion or national origin of another person, or group of persons." The opinion analyzed the proposal against First Amendment doctrine distinguishing protected "communication" from unprotected "noncommunicative conduct" (citing United States v. O'Brien and Smith v. Goguen), noting that the Supreme Court had never established a clean test for separating the two (citing Cowgill v. California and Korn v. Elkins). It observed that where a law regulates conduct only incidentally burdening speech, and the government's interest is unrelated to suppressing expression, the government bears a lighter constitutional burden (citing United States v. O'Brien and Consolidated Edison Co. v. Public Service Comm'n), but that government may not punish mere belief, motive, or advocacy in the abstract (citing Yates v. United States) or impose a heavier sentence because of a defendant's beliefs or associations (citing United States v. Brown, Woolsey v. United States, and United States v. Mitchell).

Applying that framework, the opinion found the proposed bill differed from statutes the Supreme Court had upheld, like the draft-card statute in O'Brien, because it added an express motivation element and reached conduct already independently punishable under existing law, both features that a plurality opinion in Smith v. Goguen suggested could betray a purpose of suppressing expression rather than regulating conduct. The opinion also weighed the bill against analogous federal and state civil rights laws that similarly condition liability on a defendant's discriminatory motive, including the federal school-intimidation statute at 18 U.S.C. §245(b)(2)(A), and against the general presumption of constitutionality for state legislation (citing Salisbury Beauty Schools v. State Board of Cosmetologists), tempered by the heightened, presumptively unconstitutional scrutiny First Amendment-implicating laws receive (citing City of Mobile v. Bolden). Recognizing that the Attorney General's advisory opinion could not itself invalidate a statute (citing First Continental Savings and Loan Ass'n, Inc. v. Director), the opinion concluded that because existing precedent did not clearly resolve the question either way, any doubt should be resolved in the measure's favor, provided the bill was narrowed to reach only acts directly aimed at a minority group member's person or property.

Citations

Statutes:

• 18 U.S.C. §245(b)(2)(A) (federal criminal penalty for race/religion/national-origin-motivated interference with school enrollment or attendance)

Cases:

• First Continental Savings and Loan Ass'n, Inc. v. Director, 229 Md. 293, 301 (1962)
• Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 48 (1973)
• City of Mobile v. Bolden, 446 U.S. 55, 76 (1980)
• United States v. O'Brien, 391 U.S. 367 (1968)
• Smith v. Goguen, 415 U.S. 566, 586 (1974)
• Brandenburg v. Ohio, 395 U.S. 444, 456-57 (1969)
• Cowgill v. California, 396 U.S. 371, 372 (1970)
• Korn v. Elkins, 317 F.Supp. 138, 142 (D.Md. 1970)
• Carey v. Brown, 447 U.S. 455 (1980)
• Street v. New York, 394 U.S. 576 (1969)
• Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540 n. 9 (1980)
• Yates v. United States, 354 U.S. 298 (1957)
• United States v. Brown, 479 F.2d 1170 (2d Cir. 1973)
• Woolsey v. United States, 478 F.2d 139 (8th Cir. 1973)
• United States v. Mitchell, 392 F.2d 214, 217 (2d Cir. 1968)
• United States v. Rao, 296 F.Supp. 1145, 1149 (S.D. N.Y. 1969)
• Reynolds v. United States, 98 U.S. 145 (1879)
• Police Department of City of Chicago v. Mosley, 408 U.S. 92 (1972)
• Maryland v. Louisiana, 451 U.S. 725, 756 (1981)
• Mandel v. Bradley, 432 U.S. 173, 178 (1977)
• McLaughlin v. Florida, 379 U.S. 184 (1964)
• Grace v. Burger, 665 F.2d 1193, 1194 (D.C. Cir. 1981)
• United States v. Price, 383 U.S. 787, 804 (1966)
• Griffin v. Breckenridge, 403 U.S. 88, 98-99 (1971)
• Washington v. Davis, 426 U.S. 229, 238-39 (1976)
• Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)
• National League of Cities v. Usery, 426 U.S. 833, 852 n. 17 (1976)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CONSTITUTIONAL LAW

First Amendment, Free Speech and Expression, "Ethnic Intimidation", Proposed Ethnic Intimidation Bill Raises "Serious Questions" But is not "Clearly Unconstitutional".

January 4, 1983

Mrs. Constance R. Reims
Governor's Task Force on Violence and Extremism

You have requested our opinion on the constitutionality of a proposed "ethnic intimidation bill", being considered by the Governor's Task Force on Violence and Extremism, to prohibit "racial, religious or ethnic intimidation."1

In an earlier letter to you, we reviewed the proposal in the context of its potentially negative effect on First Amendment rights to freedom of speech and expression. In summarizing our initial reaction to the bill, we noted that "[t]he proposal raises grave constitutional questions which cause [us] to have serious doubts about its validity". At the same time, we indicated that our Office had "not yet resolved" its thoughts on the subject, that we would "continue our research and reflection", and that we would "welcome any additional thoughts or suggestions" on the constitutional issues raised by the proposal. Since then we have consulted at least a half-dozen constitutional experts, received a lengthy legal memorandum from the Chairman of the National Law Committee of the Anti-Defamation

1 Specifically, the proposed bill would provide:

"A. A person commits the crime of racial, religious or ethnic intimidation if, by reason of the race, religion or national origin of another person, or group of persons, the person violates Sections [insert code provisions for criminal trespass, criminal mischief, harassment, menacing assault and/or any other appropriate statutorily prescribed criminal conduct].

B. Ethnic intimidation is a misdemeanor/felony [the degree of criminal liability should be made contingent upon the severity of injury incurred or property lost or damaged]."

League, met with representatives of the League, and researched the legal issues to the point of diminishing returns.

As we previously noted, the constitutional questions raised by this proposal are both sensitive and novel. They are sensitive in that they involve a balancing of fundamental rights and freedoms: To what extent would the proposed ethnic intimidation bill effectively serve a legitimate State interest in safeguarding minority rights? In serving that interest, would the bill, as its proponents argue, punish only criminal conduct or would it, instead, effectively punish protected expression and beliefs?

The questions raised are novel in that the proposal itself is unique: There is no exact model against which it can be measured for constitutionality. Our research has failed to uncover any case law that unequivocally supports the constitutionality of the proposed bill. But we also have found no decision that clearly mandates its unconstitutionality.

Significantly, however, in various federal and state civil rights statutes, there does exist an analogue that seems to rest on much the same premises as does the proposed bill. These civil rights laws suggest that, in resolving the tension created by the conflicting rights and freedoms here, a balance may be struck under some extremely limited circumstances to favor protection of those who are most in need of such protection: racial, religious, and ethnic minorities.

In this context, as much as we might like to state a definitive, clear-cut opinion, the issue does not allow us to do so. As you know, our role is that of adviser, not that of a court or final arbiter.2 Consequently, notwithstanding the seriousness of our concerns, the most we can advise is that the proposed bill, at least if amended to more closely track the civil rights analogy under which it may be justified, would not be clearly unconstitutional and, therefore, would be defensible. Put more

2 See First Continental Savings and Loan Ass'n, Inc. v. Director, 229 Md. 293, 301 (1962) (Attorney General's opinion that a law is unconstitutional cannot make the law inoperative; only a court has the power to declare a statute invalid).

colloquially: given the closeness of the question here, "a tie goes to the runner".3

I
Overview of the Proposed Bill

The proposed ethnic intimidation bill would take criminal acts already punishable under state law, such as trespass or assault, and create a new offense different only in that it imposes a higher penalty for acts involving a specific motivation: that is, for otherwise criminal conduct committed "by reason of the race, religion or national origin of another person, or group of persons".

According to its proponents, the bill is aimed only at criminal conduct, not at constitutionally protected expression.4 It is, they contend, primarily designed to address a perceived rise in criminal activity that is uniquely based in racial, religious, or ethnic animus. As such, it is specifically intended to deter violent and injurious acts against particularly vulnerable groups, racial, religious, and ethnic minorities, by those who, as evidenced by recent events, apparently are not deterred by existing criminal penalties.

We note, however, that, as presently drafted, the proposed legislation would have a considerably broader effect: It would not just punish criminal acts aimed at the person or property

3 Most enactments of the General Assembly are entitled to a presumption of constitutionality. See Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 48 (1973). On the other hand, when dealing with legislation that infringes upon rights secured by the First Amendment, the usual presumption of constitutionality does not apply; such legislation is presumptively unconstitutional. See City of Mobile v. Bolden, 446 U.S. 55, 76 (1980). But where, as here, even after subjecting a measure to the exacting scrutiny required by the First Amendment, there nevertheless remains a reasonable argument in support of that measure's constitutionality, that argument cannot be dismissed. In such rare cases, then, close calls should be resolved in favor of the measure.

4 Proponents of the bill principally rely on United States v. O'Brien, 391 U.S. 367 (1968), where a First Amendment attack on a statute prohibiting draft card destruction or mutilation was rejected.

of members of a minority group. Rather, it would also reach crimes involving injury to or defacement of public property or the private property of nonminorities, if motivated by the race, religion, or national origin "of another". Thus, those persons who deface a subway or park property with racial or religious epithets would be as guilty under the bill as those who deface a synagogue or damage the home of a black family.

II
Governing Principles

There are a number of basic principles that must be considered in measuring the proposed ethnic intimidation bill against the restrictions of the First Amendment.

The First Amendment, of course, protects speech. It does not, however, protect conduct that is without substantial communicative intent and impact. Smith v. Goguen, 415 U.S. 566, 586 (1974) (White, J., concurring). Even Justice Douglas would have permitted a prosecution for speech "brigaded with action". Brandenburg v. Ohio, 395 U.S. 444, 456-57 (1969) (Douglas, J., concurring) ("They are indeed inseparable and a prosecution can be launched for the overt acts actually caused.").

Unfortunately, the Supreme Court has not yet established a test for separating speech from conduct. See Cowgill v. California, 396 U.S. 371, 372 (1970) (Harlan and Brennan, JJ., concurring); Korn v. Elkins, 317 F.Supp. 138, 142 (D.Md. 1970); L. Henkin, The Supreme Court, Forward, 82 Harv.L.Rev. 63, 77 (1968). Some forms of conduct, such as peaceful picketing or flag-burning, are considered expressive and protected by the First Amendment. Carey v. Brown, 447 U.S. 455 (1980); Street v. New York, 394 U.S. 576 (1969). Other forms of conduct, however, such as disorderly conduct or arson, obviously are not considered expressive and protected.

One thing is clear though: Where governmental regulation is primarily aimed at conduct and only incidentally limits speech, and where "the governmental interest is unrelated to the suppression of free expression", then, but only then, does the government bear a lighter burden in justifying the restriction

in question. United States v. O'Brien, 391 U.S. 367, 377 (1968). See also Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 540 n. 9 (1980).

There are certain other basic principles relevant to consideration of the proposed bill. The government cannot constitutionally punish mere intent, motive, belief, or even advocacy in the abstract. Yates v. United States, 354 U.S. 298 (1957). And a judge cannot impose a greater sentence on a defendant because of his or her beliefs, political views, or associations, no matter how repugnant they may be. United States v. Brown, 479 F.2d 1170 (2d Cir. 1973); Woolsey v. United States, 478 F.2d 139 (8th Cir. 1973); United States v. Mitchell, 392 F.2d 214, 217 (2d Cir. 1968) (Kaufman, J., concurring); United States v. Rao, 296 F.Supp. 1145, 1149 (S.D. N.Y. 1969).

However, a person's religious, political, or racial beliefs are no defense to a criminal act. Reynolds v. United States, 98 U.S. 145 (1879). And a state may not discriminate between two kinds of protected expression by favoring one and banning the other. Carey v. Brown, 447 U.S. 455 (1980); Police Department of City of Chicago v. Mosley, 408 U.S. 92 (1972).

Finally, the Supreme Court has declined to consider challenged state laws in a vacuum, but, in a variety of contexts, has assessed the burden imposed by such laws and the state's purported justification for them in conjunction with other relevant state statutes. See, e.g., Maryland v. Louisiana, 451 U.S. 725, 756 (1981) (Commerce Clause); Mandel v. Bradley, 432 U.S. 173, 178 (1977) (First Amendment); McLaughlin v. Florida, 379 U.S. 184 (1964) (Equal Protection). See also Grace v. Burger, 665 F.2d 1193, 1194 (D.C. Cir. 1981), prob. juris. noted, 457 U.S. 1131 (1982) (First Amendment).

Thus, in some cases, the Court will not accept an asserted justification for a statute under constitutional attack where that state interest is already being adequately served by existing law. For example, in Grace v. Burger, 665 F.2d at 1194, 1203, a federal statute flatly prohibiting all expressive conduct on Supreme Court grounds, including, conceivably, the wearing of "I Love America" T-shirts, was found to be repugnant to the First Amendment in light of a preexisting, narrowly drawn statute that was fully applicable to Supreme Court grounds. See also McLaughlin v. Florida, 379 U.S. at 196.

III
Is the Proposed Bill Aimed at Beliefs or Expression?

Even if a law is couched in terms of prohibiting "conduct", the statute might still offend the First Amendment if it is aimed at suppressing beliefs or expression.

In United States v. O'Brien, 391 U.S. 367 (1968), the defendant was prosecuted for destroying his draft card. He had done so by publicly burning it; he contended that this act, performed in protest of the Vietnam War, "was protected 'symbolic speech' within the First Amendment". 391 U.S. at 376. The Supreme Court rejected his contention. It relied on a distinction between "communication", which could not constitutionally be suppressed, and "noncommunicative conduct", for which O'Brien was convicted:

"The case at bar is therefore unlike [a prior case] where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful .... Since the statute [held unconstitutional in that prior case] was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct." 391 U.S. at 382.

Justice White's later concurrence in Smith v. Goguen, 415 U.S. 566, 583-90 (1974), makes this distinction clear. There, a Massachusetts law punished mutilation or defacement of the flag, acts that, Justice White admitted, clearly could be constitutionally punished. However, the statute did "not stop with proscriptions against defacement or attaching foreign objects to the flag. It also makes it a crime if one 'treats contemptuously' the flag of the United States". 415 U.S. at 588. According to Justice White:

"To violate the statute in this respect, it is not enough that one 'treat' the flag; he must also treat it 'contemptuously,' which, in ordinary understanding, is the expression of contempt for the flag .... To convict on this basis is to convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for

communicating ideas about the flag unacceptable to the controlling majority in the legislature." Id.

Distinguishing O'Brien, Justice White added:

"[Destruction of draft cards, whether communicative or not, was found to be inimical to important governmental considerations. But the Court made clear that if the concern of the law was with the expression associated with the act, the result would be otherwise .... It would be difficult . . . to believe that the conviction in O'Brien would have been sustained had the statute proscribed only contemptuous burning of draft cards." 415 U.S. at 589-90.

Apparently, for Justice White, the addition of the word "contemptuously" to the statute was enough to betray a statutory purpose of suppressing expression. Such a purpose was not apparent in O'Brien. In O'Brien, the statute at issue on its face only prohibited draft card destruction or mutilation. 391 U.S. at 375. The defendant argued that a purpose to suppress expression was apparent from the existence of a regulation already prohibiting nonpossession of draft cards. The Court, however, noted that the statute and the regulation were not identical proscriptions and served different interests. 391 U.S. at 380-81.

The proposed ethnic intimidation law is not the same kind of facially neutral statute examined in O'Brien. Rather, it contains the added element of discriminatory motivation.5 Perhaps, some mindless destruction of property for racial or religious reasons, such as some juveniles engage in, might not be expressive in any sense.6 On the other hand, adult members of groups such as the Ku Klux Klan or the American Nazi Party might very well intend their criminal acts to be expressive.

5 Another feature of the proposed bill, as noted in Part I above, is its punishment of violators regardless of whether their misconduct actually injures the person or property of minorities. This feature, if not amended out of the bill, would also raise serious questions of whether the bill does not in fact aim at protected expression.

6 Of course, the bill proposes a criminal penalty that would not ordinarily apply to juveniles.

Certainly, it would be reasonable to suppose that, at least in some cases, the proposed ethnic intimidation bill would reach conduct, albeit unlawful conduct, intended to be expressive.

Another difference from O'Brien is that here the identical overt act is already punishable under the criminal law. This factor, coupled with the motivation element of the offense, raises a serious question of whether the proposed bill impermissibly singles out certain expression and, in doing so, takes direct aim at protected speech or beliefs.7

For example, if we agree with the proffered argument that the proposed ethnic intimidation bill punishes only conduct and does not single out expression, what then of a law designed to exact a more severe penalty than does existing law against a person who, for example:

(1) trespasses on the grounds of the Washington Monument, "by reason of" his or her opposition to nuclear warfare;

(2) hurls a stone at the Supreme Court Building, "by reason of" his or her opposition to the Court's abortion decisions;

(3) mutilates a draft card, "by reason of" his or her opposition to war;

(4) destroys a flag, "by reason of" his or her contempt for the government;

(5) practices polygamy, "by reason of" his or her religious beliefs;

(6) attacks a policeman, "by reason of" his or her opposition to police protection of the Ku Klux Klan.

In each of these cases, the act is already a crime, already punishable. All that is added is a certain motivation and, as a

7 It is also uncertain whether the proposal would even meet the O'Brien standard for gauging the constitutionality of restrictions reaching conduct mixed with speech. The existence of another criminal statute, a general one punishing the exact same overt act, would appear to undercut somewhat the State's justification for the measure and its assertion that no reasonable alternative exists. See Grace v. Burger, 665 F.2d 1193, 1203 (D.C. Cir. 1981), prob. juris. noted, 457 U.S. 1131 (1982). On the other hand, a court might be convinced that an additional deterrent to racially, religiously, or ethnically motivated violence against minorities is a sufficient justification, even under the O'Brien standard.

result of that motivation alone, a higher penalty. Would these too be constitutional?8

IV
Federal and State Civil Rights Laws

As much as we are troubled by the implications of viewing the ethnic intimidation bill as constitutional, we are equally concerned by the consequences of determining the bill to be unconstitutional. If the ethnic intimidation bill is unconstitutional, does it not follow that the constitutionality of various existing federal and state civil rights laws is cast into doubt? These laws, too, might well result in the application of penalties because of a person's motivation, a motivation that, in turn, will often be closely linked to protected beliefs.

To choose but one example, federal law contains the following prohibition:

"Whoever ... by force or threat of force willfully injures, intimidates or interferes with . . . any person because of his race, color, religion or national origin and because he is or has been . . . enrolling in or attending any public school or public college . . . shall be fined not more than $1,000, or imprisoned not more than one year, or both". 18 U.S.C. §245(b)(2)(A).

This statute transforms conduct that would otherwise not violate federal law at all into a federal crime only if the person committing the act does so with a motivation often allied to beliefs, "because of [the victim's] race, color, religion or national origin". Thus, where two people commit the same act of intimidation against school children, the one who does so without racist motivation commits no federal crime at all, while the one who acts with the specified motivation is guilty of a federal crime.

The proposed ethnic intimidation bill would make comparable use of motivation to distinguish between crimes of lesser

8 See note 10 below and accompanying text.

and greater severity. If the proposed bill's imposition of a higher penalty for acts involving a specific motivation were deemed unconstitutional, the same analysis might call into question the constitutionality of the federal act noted above and similar civil rights statutes.

To be sure, arguments can be advanced that would differentiate various of the civil rights laws from the proposed bill.9 A basic question remains, though: Does the Constitution permit some potential minimal impact on First Amendment rights in order to achieve greater protection of minority groups?

This question simply has no clear answer. One can support the ethnic intimidation bill in the belief that the Constitution permits this protective measure, just as it permits various civil

9 Some of these laws, enacted during Reconstruction, were intended to fill a gap created by the states' failure to enforce their own laws. See United States v. Price, 383 U.S. 787, 804 (1966). In practical terms, therefore, such laws do not increase the penalty for racially-motivated expression; they were simply intended to punish conduct that the states effectively failed to address. Moreover, these acts were not solely aimed at the exercise of private rights, but were in part designed to reach official action. See generally Griffin v. Breckenridge, 403 U.S. 88, 98-99 (1971). The proposed ethnic intimidation bill cannot be comparably justified.

Other such laws, particularly those requiring equal treatment in public accommodations, employment, and housing, do not necessarily turn on motivation. See Washington v. Davis, 426 U.S. 229, 238-39 (1976). Thus, for example, these laws almost universally exempt expressly certain intentional discrimination, such as that practiced by private clubs, small employers, and single-family dwelling owners. The ethnic intimidation bill defines all of its proposed offenses in terms of motivation and provides for no exceptions.

To the extent that some anti-discrimination laws do link liability to motivation, they necessarily do so as the only feasible means by which it is possible to distinguish improper activities (e.g., firing an employee because he or she is black) from a much larger universe of proper activities (e.g., firing employees for business reasons). The proposed bill obviously does not use motivation to make such a distinction between the proper and the improper, because all of the covered conduct is already unlawful.

Finally, Congress's general authority in the area of civil rights is specially augmented by the grants of specific authority in Section 2 of the Thirteenth Amendment and Section 5 of the Fourteenth Amendment. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). No such special constitutional authorization underlies the proposed bill.

In the final analysis, however, it is uncertain the extent to which these distinctions mandate a constitutional difference.

rights laws that turn on motivation. We cannot say that this view is necessarily wrong.

Indeed, theoretical support for such a view might lie in the very fact that it is both forthright and self-limiting: It relies significantly less on attempting to draw fine, and sometimes impossible, distinctions among conduct, motivation, beliefs, and expression, distinctions that might as readily be proffered to justify the extreme examples of possible First Amendment encroachments set out at the end of Part III above.

Instead, this position explicitly acknowledges and attempts to resolve the tension between two fundamental constitutional goals; protection of free speech and protection of historically abused minorities. Where, as here, a statute does not purport to overtly or directly affect expression, particularly where there is some doubt as to whether the statute, as a result of its motivation element, crosses the uncertain line between conduct, on the one hand, and expression and beliefs, on the other, a court might deem it proper to resolve the underlying tension in favor of the latter goal. Cf. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (Eleventh Amendment necessarily limited by the statutory enforcement provisions of the Fourteenth Amendment); National League of Cities v. Usery, 426 U.S. 833, 852 n. 17 (1976) (reserving issue of whether legislation enacted pursuant to Section 5 of the Fourteenth Amendment overrides the Tenth Amendment).

However, even if this view were ultimately adopted by the courts, we nevertheless believe that a measure such as the proposed ethnic intimidation bill would be judicially upheld only if: (1) the measure is demonstrably necessary to protect racial, religious, or ethnic minorities; and (2) the measure affects the maintenance of beliefs or the exercise of speech no more than is essential to achieve the intended protection of those minorities.10

In our view, a responsible reading of the Constitution can go no further.

10 To meet this standard, we believe that the proposed bill should be amended to punish only such criminal acts as are aimed directly at the person or property of minority group members. So limited, there is less chance of this bill being used as precedent to justify more far-reaching encroachments on the First Amendment such as those listed at the end of Part III above.

V
Conclusion

In summary, given the absence of definitive judicial precedent, we cannot predict with any confidence what a court might do with legislation such as this. We do not believe that existing judicial precedent mandates one conclusion or another. Under these circumstances, and given especially the existence of the long-unquestioned civil rights analogy, any doubts that we might have should, we believe, be resolved in favor of the measure: in sum, "a tie goes to the runner".11

It is not for the Attorney General of Maryland to disturb the theoretical underpinnings of over a century of federal civil rights legislation and several decades of state anti-discrimination laws. Accordingly, notwithstanding our doubts, we would not disapprove of the bill, if enacted, on constitutional grounds.

However, should this proposal go forward, we strongly recommend that the bill at least be amended to limit its scope, to punish only criminal acts directly aimed at the person or property of a member of a minority group. Such a limitation in the bill would more firmly place this proposal within the civil rights acts analogy and is more likely to convince a court that the legislation is not impermissibly aimed at protected expression.

Stephen H. Sachs, Attorney General
Robert A. Zarnoch, Assistant Attorney General
Linda H. Lamone, Assistant Attorney General
Avery Aisenstark, Chief Counsel, Opinions and Advice

11 See note 3 above.