Can a South Carolina city pass its own hate crimes ordinance when the state legislature has not enacted a hate crimes law?

Plain-English summary

The City of Greenwood was being asked to adopt a hate crimes ordinance closely modeled on the City of Cayce's 2024 ordinance. The proposed ordinance would have made it a crime to intimidate another person based on race, religion, sexual orientation, gender identity, disability, or other protected status, with a maximum penalty of $500 and 30 days in jail. The city attorney, James Graham Padgett, asked the AG to weigh in.

Solicitor General Emeritus Robert Cook said the proposed ordinance is at significant risk of being struck down on two independent constitutional grounds:

1. Home Rule preemption. Article VIII, § 14(5) of the South Carolina Constitution requires statewide uniformity in criminal law. A long line of cases (Connor, Diamonds, Martin, Beachfront, Palmetto Princess) holds that a municipality cannot criminalize conduct that is not criminal under state law. South Carolina has no state hate crimes statute, so a city ordinance creating a hate crimes offense fills a gap the General Assembly has chosen not to fill, which the Supreme Court has consistently said is impermissible.

2. First Amendment. Under R.A.V. v. City of St. Paul (1992), the U.S. Supreme Court struck down a nearly identical St. Paul hate crimes ordinance as a content-based and viewpoint-based regulation of speech. Wisconsin v. Mitchell (1993) saved penalty-enhancement statutes that increase punishment for an existing crime when motivated by bias, but that is different from the standalone Greenwood-style offense, which targets bias-motivated speech directly.

The AG offered a possible workaround. Under Foothills Brewing (2008), a municipality can create non-criminal "infractions" for conduct that the state has not criminalized, as long as the penalty is purely civil (a small fine, not jail) and the conduct is framed as a public nuisance rather than a crime. A hate crimes ordinance redrafted in that mold, or a true penalty-enhancement provision tied to a separate offense, would face less constitutional risk. As written, though, the proposed ordinance is on shaky ground.

What this means for you

If you are a city attorney or council member considering a hate crimes ordinance

Three workable options, in descending order of legal risk:

1. Wait for state legislation. A hate crimes bill has reportedly passed the South Carolina House but not the Senate. If a state hate crimes statute eventually passes, cities are free to mirror it.
2. Adopt a sentencing enhancement. Under Wisconsin v. Mitchell, a penalty-enhancement provision tied to an existing crime (assault, vandalism, etc.) raises fewer First Amendment problems because it punishes conduct, not speech.
3. Adopt a civil infraction model. Under Foothills Brewing, an ordinance that frames bias-motivated harassment as a public nuisance and imposes only a civil fine (no jail, modest dollar amount) avoids the criminalization problem under Article VIII, § 14(5). It still has First Amendment exposure under R.A.V., but the analysis is different and potentially survivable.

What you should not do is copy the Cayce ordinance as-is. The AG has now publicly identified two serious constitutional problems with that model.

If you live in a city that has already adopted a Cayce-style ordinance

The ordinance is presumed valid until a court rules otherwise. The AG explicitly noted that any opinion "simply points out constitutional concerns" without binding effect. If you are charged under the ordinance, your defense lawyer has a strong argument under both R.A.V. and the Article VIII, § 14(5) preemption line of cases. If you want to challenge the ordinance proactively, you generally need standing (a real or imminent prosecution) before a court will hear the case.

If you advocate for civil rights protections

The AG opinion does not foreclose hate crimes protection, only the particular shape Greenwood was considering. Pushing for state legislation is the cleanest path; a state law would moot the preemption problem and let municipalities take additional non-conflicting action. In the meantime, civil remedies (damages under tort theory, civil-rights statutes) and federal hate crimes prosecution remain available without these constitutional concerns.

If you are a prosecutor

If your jurisdiction has a Cayce-style ordinance and you bring a charge under it, expect a motion to dismiss raising R.A.V. and Article VIII, § 14(5). The AG's view is essentially that the motion has substantial merit. Discuss with your office whether a sentencing-enhancement charge tied to an underlying state-law crime is a stronger vehicle.

Common questions

Q: Why can't a city criminalize hate crimes if the state legislature has not?
A: Article VIII, § 14(5) of the South Carolina Constitution requires uniformity in criminal law statewide. The Supreme Court has read that to mean municipalities cannot make something a crime that the state has chosen to leave lawful. The framers explicitly worried about "patchwork" criminal laws.

Q: Doesn't Wisconsin v. Mitchell allow hate crimes laws?
A: It allows penalty enhancements for existing crimes when motivated by bias. It does not allow standalone hate crimes offenses that target speech directly. The Greenwood-style ordinance is the second kind, not the first.

Q: What did R.A.V. actually hold?
A: That St. Paul's "fighting words" ordinance, which prohibited symbols that arouse anger based on race, color, creed, religion, or gender: was unconstitutional content discrimination. The city could not single out speech on certain disfavored topics.

Q: Can a city outlaw cross-burning?
A: Yes, if narrowly drawn. Virginia v. Black (2003) upheld a Virginia statute prohibiting cross-burning with intent to intimidate, treating cross-burning as a "particularly virulent form of intimidation" rather than expression on a disfavored topic.

Q: What if the city just calls it a "civil infraction" instead of a crime?
A: That helps under Foothills Brewing, which upheld Greenville's civil-infraction smoking ordinance. The conduct still has to be reachable under the city's general police power, and the penalty has to actually be civil: Beachfront Entertainment struck down a $500 fine as too high to be non-criminal. The First Amendment problem under R.A.V. would still need to be addressed.

Q: Does the AG's opinion mean the Cayce ordinance is invalid?
A: No. AG opinions are advisory. The Cayce ordinance remains operative until a court strikes it down. The opinion just identifies the constitutional vulnerabilities a court would likely focus on.

Background and statutory framework

South Carolina has no state hate crimes statute. A bill has reportedly passed the House but stalled in the Senate. In the absence of state legislation, a few cities (notably Cayce) have adopted local hate crimes ordinances. Greenwood was being asked to follow Cayce's model.

The home rule preemption analysis runs through a steady line of cases. Connor v. Town of Hilton Head (1994) held that a municipality cannot prohibit nude dancing because state law did not. Diamonds v. Greenville County (1997) reaffirmed the rule for a public-nudity ordinance, citing the West Committee's concern with "local government's making an act a crime that was not a crime under state law." Martin v. Condon (1996) struck down a referendum criminalizing video poker in twelve counties because video poker was legal statewide. Beachfront Entertainment (2008) struck down a $500 smoking fine as criminal in nature. Palmetto Princess (2006) invalidated a town gambling ordinance because gambling cruises were lawful under state law.

The escape valve is Foothills Brewing Concern v. City of Greenville (2008). The Supreme Court there upheld a Greenville smoking ordinance because it framed violations as "infractions" or "public nuisances" rather than crimes, with civil rather than criminal penalties. The lesson: a municipality can address conduct the state has not criminalized as long as it does not itself criminalize it.

The First Amendment line is shorter but pointed. R.A.V. v. City of St. Paul (1992) held that hate-crime ordinances directed at speech violate the First Amendment because they single out particular content (bias-motivated speech) and particular viewpoints (since one side of a debate could use "fighting words" the ordinance prohibited and the other could not). Wisconsin v. Mitchell (1993) carved out penalty enhancements as constitutional because they target conduct, not speech. Virginia v. Black (2003) upheld cross-burning prohibitions when narrowly drawn around a particular intimidation method, not bias-motivated speech in general.

Justice Burnett's concurrence in Martin v. Condon offered the dissenting view that local governments should be able to criminalize conduct not unlawful under state law. The AG noted that local governments would surely raise this argument, but it remains the minority view.

Citations and references

Constitutional and statutory authority:
- S.C. Const. art. VIII, § 14 (Home Rule limits)
- S.C. Code § 4-9-25 (counties' general powers)
- First Amendment, U.S. Constitution

Cases:
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
- Wisconsin v. Mitchell, 508 U.S. 476 (1993)
- Virginia v. Black, 538 U.S. 343 (2003)
- Connor v. Town of Hilton Head Island, 314 S.C. 251, 442 S.E.2d 608 (1994)
- Diamonds v. Greenville County, 325 S.C. 154, 480 S.E.2d 718 (1997)
- Martin v. Condon, 324 S.C. 183, 478 S.E.2d 272 (1996)
- Foothills Brewing Concern v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008)
- Beachfront Entertainment v. Town of Sullivan's Island, 379 S.C. 602, 666 S.E.2d 912 (2008)
- State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993) (cross-burning statute facially unconstitutional)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-on-the-constitutionality-a-proposed-municipal-hate-crimes-ordinance/
• Original PDF: https://www.scag.gov/media/3czfc5pq/padgettj-os-11045-final-opinion-10-10-25.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

October 10, 2025

James Graham Padgett, II, Esquire
Bacot & Padgett, LLC

414 Monument Street, Suite C
Greenwood, SC 29646

Dear Mr. Padgett:

On behalf of the City of Greenwood, as its attorney, you seek our opinion regarding the
authority of a municipality to adopt a so-called “hate crimes” ordinance. This is a novel question
and has not been addressed by our courts. Of course, our opinion is advisory and non-binding.
We are able, in an opinion, to identify constitutional concerns, but only a court may determine
the legality of such an ordinance.

Moreover, as you are aware, “[a] municipal ordinance is a legislative enactment and is
presumed to be constitutional.” .Ani Creation. Inc. v. City of Myrtle Beach Board of Zoning
Appeals, 440 S.C. 266, 278, 890 S.E.2d 748, 754 (2023) (quoting Town of Scranton v.
Willoughby, 306 S.C. 421, 422, 412 S.E.2d 424, 425 (1991)). As our Supreme Court has stated,

[clourts must make every presumption in favor of the constitutionality of a legislative
enactment. McMaster v. Columbia Bd. Of Zoning Appeals, 395 S.C. 499, 504, 719
S.E.2d 660, 662 (2011) (per curiam) (quoting City of Rock Hill v. Harris, 391 S.C.
149, 154, 705 S.E.2d 53, 55 (2011)). Thus, courts may only declare a municipal
ordinance unconstitutional “when its invalidity appears so clearly as to leave no room
for reasonable doubt that it violates some provision of the Constitution.” Id. at 504,
719 S.E.2d at 663 (quoting Harris, 391 S.C, at 154, 705 S.E.2d at 55).

Ani Creation, Id. Accordingly, any so-called “hate crimes” ordinance, which has been adopted,
remains operative, unless and until a court concludes otherwise.

While a municipal ordinance is entitled to a strong presumption of validity, any opinion
we issue concerning that ordinance simply points out constitutional concerns that a court may
consider if the validity of the ordinance is challenged in court. As you request, we do so in this
opinion. In that regard, your letter takes the form of an excellent legal memorandum, which we
greatly appreciate. We fully agree with your analysis, but will comment a bit further. Therein,
you state the following:

REMBERTC. DENNIS BUILDING « POST OFFICE BOX 11549 « COLUMBLA, SC 2901-1549 2 TELEPHOnI: 802-734-2670 PACSIMILE &03-243-6283
Phe LE BLEPORIE erhori 7 ow PACSIMILS 6G4-753-628 3

James Graham Padgett, HI, Esquire

Page 2

October 10, 2025

[t]he City has been requested to debate a municipal hate crimes ordinance almost
identical to the form of that of Cayce, SC Ordinance 2024-04. This proposed
legislation for the City would make it unlawful to intimidate another (clearing
invoking free speech) based on possession of a listed protected status, is chargeable
as a crime as a separate offense (but only if triggered by violation of another part of
the City Code, or an enhancement charge), and is punishable under the general
penalty section of the City Code (providing for a fine of up to $500.00 and/or 30 days
in jail),

This type of ordinance seems to run afoul of several principles set down long ago to
ensure consistent application of criminal law throughout the State. The Cayce
ordinance is affected by the First Amendment right to free speech. The Cayce
Ordinance seems to be unconstitutionally vague on its face. Further, it becomes
necessary to review the content of the expression to determine if it is intimidation
based on a listed protected status. This content review is also problematic.

Under the South Carolina Constitution, “[iJn enacting provisions required or
authorized by this article, general law provisions applicable to the following matters
shall not be set aside: | ... ] criminal laws and the penalties and sanctions for the
transgression thereof] ... ].". See S.C. Const. art. VIII, § 14(5). Municipal hate crimes
ordinances have created, or will further create, a patchwork of criminal laws
throughout the state setting up unpredictable outcomes for those that travel the State
for lack of uniformity. See Martin v. Condon, 324 S.C. 183,478 S.E.2d 272, 274
(1996) (“Article VII, § 14(5) [ ... ] of our [SC] constitution requires statewide
uniformity of general law provisions regarding ‘criminal laws and the penalties and
sanctions for the transgression thereof.’”); Diamonds v. Greenville County, 325 S.C.
154, 480 S.E.2d 718 (1997) (per Burnett’s dissent); Foothills Brewing Concern, Inc.
v. City of Greenville 377 S.C. 355, 660 S.E.2d 264 (2008); Beachfront
Entertainment, Inc. v. Town of Sullivan’s Island, 379 S.C. 602, 666 S.E.2d 912
(2008).

As repulsive, despicable, and unnecessary as hate of any kind is, such has not been
outlawed throughout the State. It has, however, been discussed in the State
Legislature. The seeming lack of willingness of the State Legislature to take up the
bills indicates that such "hate" conduct is not unlawful in the State as a separate
offense. See 2022 WL 527839, at 8 (S.C.A.G. Feb. 16, 2022) ("[discussing nude
dancing] the Court concluded that Art. VIII, § 14 of the State Constitution; which
provides that state criminal laws and penalties and sanctions not be set aside by local
governments, would be construed "to prohibit a municipality from proscribing
conduct that is not unlawful under State criminal laws governing the same subject.
(internal citation omitted). Inasmuch as 'Town has criminalized conduct that is not
unlawful under relevant State law, we conclude Town has exceeded its power in
enacting the ordinance in question."); 2011 WL 5304080, at 14 (S.C.A.G. Oct.
11,2011) ("As the Court made clear in Foothills Brewing and Beachfront, local
governments may not criminalize conduct which is otherwise lawful under State
law.")

James Graham Padgett, III, Esquire

Page 3

October 10, 2025

Even passing legislation for a "good purpose" may be incongruent with the rule of
law. Legislation must be correct in substance and procedure under the rule of law,
not for popularity's sake or to "send a message." 2022 WL 527839, at *10 (S.C.A.G.
Feb. 16, 2022) ("While we appreciate and respect the efforts of the City of Columbia
in protecting equal dignity for all persons [referring to conversion therapy], the City
cannot adopt an ordinance that likely violates the State and federal Constitutions.
The right to free speech and free expression and thought cannot be undermined or
violated, even for a salutary purpose.")

The Cayce ordinance clearly has criminal implications by making reference to its
general penalty section in the Cayce Code sec, 1-6. This cannot be under at least two
South Carolina cases and previous opinions of your Office. See Foothills Brewing
Concern, Inc. v. City of Greenville, 377 S.C. 355, 660 S.E.2d 264 (2008) (upholding
a smoking ban because it was not criminal in nature) ("An ordinance which merely
declares certain conduct to be "a public nuisance" or "an infraction" and imposes a
‘civil fine' is not the same as a criminal ordinance."); Beachfront Entertainment, Inc.
v. Town of Sullivan's Island, 379 S.C. 602, 666 S.E.2d 912 (2008) ($500 file was too
great, therefore criminal in nature and ordinance was struck down as
unconstitutional); 2011 WL 5304080, at *14 (S.C.A.G. Oct. 11, 2011) ("Consistent
with Foothills Brewing and Beachfront, a civil penalty can be achieved by language
indicating a violation is an "infraction" and/or a "public nuisance." However, an
ordinance will be construed as imposing a criminal penalty if it characterizes a
violation as a "misdemeanor,” is punishable by jail time, or imposes a fine which is
too severe in comparison to that imposed for a similar State law violation.").

It seems that for a municipal hate crimes ordinance to pass muster, it would have to:

1, be consistent with the First Amendment to the US Constitution;

2. only be issued as an enhancement to the charge and conviction of another
   crime (therefore hate crime is not a crime by itself).

3. only be a civil "infraction" because the act is a "public nuisance” and not
   independently criminal in nature (therefore, a hate crime is not a crime
   by itself);

4, subject only to a fine, but not too great of a fine to be considered
“criminal” in nature; and,

5. have limited application to municipal court with no application outside

the particular municipality or in the court of general sessions (thereby
increasing the confusion of the public).

Local government does not seem equipped to pass the type ordinance the City is
being asked to debate. What the local level of government might be empowered by
state law to provide would further disappoint, and possibly infuriate, the public
simply because it is too weak to address the serious nature of the problem and would
be extremely limited in its scope of jurisdiction. A weak ordinance would degrade
and trivialize the very principles of fairness and justice the public wants this law to
promote.

James Graham Padgett, III, Esquire
Page 4
October 10, 2025

I would very much appreciate the opinion of your Office on the constitutionality of
the Cayce Ordinance. It appears that many other local governments have copied the
same form....

You have also enclosed a copy of Section 28-27 (Cayce Ordinance).
Law/Analysis

We turn now to analysis of the proposed ordinance in question. One major concern
regarding the adoption of a so-called “hate crimes” ordinance by a municipality or county is
Article VIII, § 14(5) of the State Constitution. That provision prohibits a county or municipality
under its Home Rule powers from “setting aside the criminal laws and the penalties for the
transgression thereof....” In Diamonds v. Greenville County, 325 S.C. 154, 480 S.E.2d 718,
719-20 (1997), our Supreme Court elaborated upon this constitutional provision at considerable
length, relying upon its previous decision in Connor v. Town of Hilton Head, 314 S.C. 251, 442
S.E.2d 608 (1997). The Court in Diamonds analyzed Art. VII, § 14(5) as follows with respect
to an ordinance prohibiting public nudity:

[ujnder state law, counties have the authority to enact ordinances “in relation to
health and order in counties or respecting any subject as appears to them necessary
and proper for the security, general welfare, and convenience of counties or for
preserving health, peace, order, and good government in them. S.C. Code Ann. § 4-
9-25 (Supp. 1995). An ordinance addressing public nudity would fall within this
broad grant of power.

In declaring the ordinance invalid, the trial judge found a conflict with Article VII,
Section 14 of the State Constitution, which reads:

[i]n enacting provisions required or authorized by this article, general law
provisions applicable to the following matter shall not be set aside:

(1) The freedoms guaranteed every person; (2) election and suffrage
qualifications; (3) bonded indebtedness of governmental units; (4) the
structure for and the administration of the State’s judicial system; (4) the
structure for and the administration of the State’s judicial system; (5)
criminal laws and the penalties and sanctions for the transgression
thereof; and (6) the structure and the administration of any governmental
service or function, responsibility for which rests with State government
or which requires statewide uniformity.

(emphasis added).

The trial judge relied on Connor in holding appellant could not enact a general ban on
public nudity when state law did not make such conduct unlawful. The State Supreme Court
found this reliance was “correctly placed.” The Diamonds Court then proceeded to discuss

James Graham Padgett, III, Esquire
Page 5
October 10, 2025

Connor in even greater detail, and to note the background which had led to the framing of Article
VIO, § 14:

[iJn Connor, a municipality enacted an ordinance making it unlawful to participate in
nude or semi-nude dancing or to owner operate a sexually-oriented business (defined
to include a nightclub or bar where such dancing is performed). The Court stated the
scope of a municipality’s power to enact ordinances was a question of state law.

While under state law a municipality has general power to enact ordinances, the
Court construed Article VIII, Section 14(5)’s mandate that state criminal laws not be
“set aside” to “prohibit a municipality from proscribing conduct that is not unlawful
under state criminal laws governing the same subject.” 314 S.C. at 254, 442 S.E.2d
at 609 (emphasis added). Because state criminal laws addressing the subject of
public nudity do not prohibit nude dancing alone, the ordinance conflicted with this
constitutional section and therefore was invalid. In this case, the same rationale
applies. Ordinance 2727 has the effect of making it unlawful to appear nude in
public, even if no state laws addressing the same subject are violated in the process.
For this reason the ordinance cannot stand. .. . Connor’s holding is supported by the
comments of the drafters of the proposed section, which was added as part of the
major revisions made to the State Constitution in the early 1970’s. A special
committee was created, headed by John C. West (the “West Committee”), to
recommend these revisions. Regarding proposed Article VIII, Section 14 (which was
adopted by the legislature verbatim), the West Committee commented, “There are
certain fundamentals related to freedom which should be treated only by the State
and should not be left to local variation or abuse.” Final Report of the Committee to
Make a Study of the South Carolina Constitution of 1895, at 91 (1969) (emphasis
added). One of the Committee’s major concerns regarding this constitutional
provision was the “local government’s making an act a crime that was not a crime
under state law.” 2 James L. Underwood, The Constitution of South Carolina, 133,
134 (1989), Finally, our language regarding Article VIII, Section 14 in other cases
show that we have consistently interpreted that section broader than only prohibiting
local governments from adopting ordinances that conflict with state general law. See
Davis v. County of Greenville, 322 S.C. 73, 470 S.E.2d 94 (1996).... (Construing
Article VIII. Section 14(4) as effectively withdrawing the subject “from the field of
local concern”); Robinson v. Richland County Council, 293 S.C. 27, 30, 358 S.E.2d
392, 395 (1987) (stating Article VIII, Section 14 “precludes the legislature from
delegating to counties the responsibility for enacting legislation relating to the subject
encompassed by that section.”).

We thus hold the trial court was correct in finding Appellant’s enactment of
Ordinance 2727 was unconstitutional and therefore invalid.

Diamonds, 325 S.C. 154, 480 S.E.2d 718, 719-20 (1997).

Other decisions of the Court have reached the same conclusion as Connor and Diamonds.
For example, in Palmetto Princess LLC v. Town of Edisto Beach, 369 S.C. 50, 53, 631 S.E.2d

James Graham Padgett, III, Esquire
Page 6
October 10, 2025

76, 78 (2006), the Court concluded that “[b]ecause a gambling day cruise was a legal activity
allowed by the State, Edisto’s Ordinance is unconstitutional because it makes a legal activity
unlawful. ... Where the General Assembly has occupied the field in a particular area, i.e.
gambling, by describing what is and what is not proscribed, local governments are not free to
alter the standards established by the General Assembly.” And, in Beachfront Entertainment,
Inc. v. Town of Sullivans Island, 379 S.C. 602, 666 S.E.2d 912 (2008), the Court held that
“Town’s ordinance is invalid in that imposes a criminal penalty for smoking in places where
smoking is not illegal under State law.” 379 S.C. at 606, 666 S.E.2d at 914.

Further, in Martin v. Condon, 324 S.C. 183, 478 S.E.2d 272, 274-75 (1996), the Court
struck down a referendum which allowed counties to criminalize video poker, which, at that
time, was legal. There, the Court stated:

Article VIII, § 14(5) of our Constitution requires statewide uniformity of general law
provisions regarding “criminal laws and the penalties and sanctions for the
transgression thereof.” Accordingly, local governments may not criminalize conduct
that is legal under a statewide criminal law. Connor v. Town of Hilton Head Island,
314 S.C, 251, 442 S.E.2d 608 (1994) (municipality cannot criminalize nude dancing
where relevant State law does not; see also City of North Charleston v. Harper, 306
S.C. 153, 410 S.E.2d 569 (1991) (local government cannot impose different penalties
for possession of marijuana than those established under State law). Here, the effect
of § 12-21-2806 is to criminalize in twelve counties conduct that is legal under a
State criminal law. This effect conflicts with the constitutional requirement of
uniformity in the area of State criminal laws. ...

Justice Burnett, in his concurring opinion in Martin, however, disagreed with the majority
that Connor was correctly decided to the extent that it held that “all conduct is lawful unless
made unlawful by enactment of the General Assembly.” He was of the view that Art. VIII, § 14
“does not yield to such an interpretation.” In his concurrence in Diamonds, Connor should be
overruled “insofar as it holds that local governments may not criminalize conduct that is not
unlawful under statewide criminal law.” 478 S.E.2d at 275-76. As he also emphasized in his
Diamonds dissent, “Article VIII, § 14 of the South Carolina Constitution does not prohibit local
governments from criminalizing conduct which is not unlawful under State law.” 480 S.E.2d at
721. Justice Burnett’s opinion is, of course, the minority view regarding Art. VIII, § 14(5), but
his is a plausible reading of the provision and is one undoubtedly which would be asserted by
local governments in any court challenge to a hate crimes ordinance.

By contrast, in Foothills Brewing Concern, Inc. v. City of Greenville, 377 S.C. 355, 660
S.E.2d 264 (2008), the Court distinguished for purposes of Art. VIII, § 14 the “criminalization”
of conduct from simply making such conduct “illegal.” According to the Court in Foothills, Art.
VUI, § 14 of the State Constitution “requires” ‘statewide uniformity’ regarding the criminal law
of this State, and therefore, ‘local governments may not criminalize conduct that is legal under a
statewide criminal.’” 377 S.C. at 365, 660 S.E.2d at 269. (quoting Martin v. Condon, supra). In
that instance, the Court opined,

James Graham Padgett, III, Esquire
Page 7
October 10, 2025

[w]hile the Ordinance in this case does make smoking in certain areas “unlawful”
where the Clean Indoor Air Act does not, it is our opinion the Ordinance does not
criminalize such behavior. Instead, the Ordinance states that a violation constitutes
“an infraction.” “Infraction” is defined as:

A breach, violation, or infringement; as of a law, a contract, a right or a duty.
A violation of a statute for which the only sentence authorized is a fine and
which violation is expressly designated as an infraction.

Black’s Law Dictionary 537 (6" ed. 1992),

Put simply, the plain language of the Ordinance is non-criminal in nature. This
contrasts with the Clean Indoor Air Act’s “misdemeanor” language which clearly
indicates that a violation of the State law is considered a criminal offense. . . .

In the instant case, however, where the violation of the Ordinance constitutes an
infraction or a public nuisance, the conclusion is inescapable that the City does not
seek to criminalize any conduct. As such, the Ordinance does not “set aside” the
criminal laws of this State. Accordingly, we find the trial court erred in finding that
the Ordinance violates Article VIII, Section 14 of the South Carolina Constitution.

377 S.C, at 365-66, 660 S.E.2d at 269-70. Thus, the Court upheld the City’s Home Rule powers
under Article VIII of the South Carolina Constitution. So long as the ordinance was not criminal
in nature, it presented no constitutional issue based upon Art. VIII, § 14(5).

Another major concern regarding the ordinances in question is, of course, the First
Amendment. As the South Carolina Supreme Court has recognized,

[t]he First Amendment generally prevents government from proscribing expressive
conduct because of disapproval of the ideas expressed. R.A.V. v. City of St. Paul,
505 U.S. 377, 112 S.Ct. 2538, 120 L. Ed.2d 305 (1992). Content-based regulations
are presumptively invalid. Id..

Connor v. Town of Hilton Head Island, supra. As noted, the Court in Connor held that the
ordinance in question not only prohibited nude dancing, pursuant to Art. VIII, § 14(5) of the
South Carolina Constitution, but also that “Town’s ordinance violates the First Amendment
because it totally suppresses a protected form of expressive conduct.” 314 S.C. at 256, 442
S.E.2d at 610.

R.A.V. cited by Connor, is the leading case regarding “hate crimes” legislation. In that
instance, the City of St. Paul had adopted an ordinance similar to the ones in question here. It
banned any

James Graham Padgett, IIT, Esquire
Page 8
October 10, 2025

Plac[ement] on public or private property [of] 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.

The Minnesota Supreme Court interpreted the St. Paul ordinance as prohibiting “fighting words.”

In R.A.V., a cross was burned in an African-American person’s yard. The perpetrator
was prosecuted under St. Paul’s “hate crimes” ordinance. The United States Supreme Court,
however, notwithstanding the Minnesota Supreme Court’s construction, struck down the
ordinance as violative of the First Amendment. The Court concluded that the ordinance singled
out particular speech based upon its content and point of view:

. .. 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
in 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
speaker who express views on disfavored subjects.

505 U.S. at 391 (emphasis added) (citations omitted).
The R.A.V. Court continued in its analysis as follows:

[i]n its practical operation, moreover, the ordinance goes even beyond mere content
discrimination, to actual viewpoint discrimination. Displays containing some words
~ odious racial epithets, for example — would be prohibited to proponents of all
views. But “fighting words” that do not themselves invoke race, color, creed,
religion or gender-aspersions upon a person’s mother, for example — would
seemingly be usable ad libitum in the placards of those arguing in favor of racial,
color, etc., tolerance and equality, but could not be used by those speakers’
opponents. One could hold up a sign saying, for example, that all “anti-Catholic
bigots” are misbegotten; but not that all “papists” are, for that would insult and
provoke violence “on the basis of religion.” 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.

Id. at 391-92. The concurring opinions in R.A.V. agreed the St. Paul ordinance violated the First
Amendment, but on a different basis — that of overbreadth. Justice White, for example, argued
that the ordinance is “fatally overbroad because it criminalizes not only unprotected expression,
but expression protected by the First Amendment.” 505 U.S. at 397 (White, J., concurring). As
noted, R.A.V. has been followed by our own Supreme Court. See e.g., State v. Ramsey, 311
S.C. 555, 559-60, 430 S.E.2d 511, 514 (1993) [“The government may not selectively limit

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speech that communicates, as does a burning cross, messages of racial or religious intolerance. ...
(citing R.A.V.). We conclude that Section 16-7-120 is facially unconstitutional....”].

Similarly, the ordinances in question single out intimidation “because of the actual or
perceived race, color, creed, religion, ancestry, sexual orientation, gender, gender identity,
physical or mental disability or national origin of the other person or persons, including any act
of antisemitism. .. .” Thus, based upon the Court’s analysis in R.A.V., the ordinance would
apply only to certain expression based upon its content and point of view. According to the
R.A.V. Court, “the manner of confrontation cannot consist of selective limitations upon speech.”
505 USS. at 392.

Shortly after R.A.V. was decided, in Wisconsin v. Mitchell, 508 U.S. 476 (1993), the
United States Supreme Court upheld a statute which increased sentences if the perpetrator
“intentionally selects” the victim or targeted property “because of the race, religion, color,
disability, sexual orientation, national origin of that person or the owner or occupant of that
property.” See Bader. Penalty Enhancement For Bias-Based Crimes: Wisconsin v. Mitchell, 113
S.Ct. 2194, 17 Harv. J.L. & Pub. Pol’y 253 (1994). The Court, in Mitchell, distinguished R.A.V.
as follows:

[nJothing in our decision last term in R.A.V. compels a different result here. That
case involved a First Amendment challenge to a municipal ordinance prohibiting the
use of “‘fighting words” that insult, or provoke violence, ‘on the basis of race,
color, creed, religion or gender.’” 505 U.S. at 391, 112 S.Ct., at 2547 (quoting St.
Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02
(1990)). Because the ordinance only proscribed a class of “fighting words” deemed
particularly offensive by the city — i.e. those “that contain . . . messages of ‘bias-
motivated’ hatred, 505 U.S. at 392, 112 S.Ct., at 2547 we held that it violated the rule
against content-based discrimination.” See id., at 392-394, 112 S.Ct., at 2547-2548,
But whereas the ordinance struck down in R.A.V. was explicitly directed at
expression (i.e. “speech” or “messages”), id., at 392, 112 S.Ct. at 2547, the statute in
this case is aimed at conduct unprotected by the First Amendment.

Wisconsin v. Mitchell, 508 U.S. at 487. Thus, enhancement of sentences for other crimes, based
upon the “hate” factors, such as race or religion, are valid.

Scholars have questioned whether Wisconsin v. Mitchell applies to so-called “mixed
crimes” which combine both speech and conduct. As one authority has commented,

[t]he Court’s distinction between speech and unprotected conduct fails when applied
to a large portion of crimes: bias-inspired crimes that mix elements of speech and
non-expressive conduct. These “mixed crimes” such as property defacement and
trespassing produce some “harms” distinct from their communicative impact, “but
cause most of their harms directly through their communicative impact. “For
example, painting a swastika on a synagogue harms worshippers chiefly through its
communicative impact, but it also inflicts the property damage typical of all kinds of

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defacement... .” Thus Mitchell does not make clear whether penalties may be
enhanced for missed crimes.

Bader, supra at 259.

And, in Virginia v. Black, 538 U.S. 343, 362-63 (2003), the United States Supreme Court
upheld a statute prohibiting cross-burning with intent to intimidate. The Court viewed its
analysis as consistent with that of R.A.V., stating the following:

[uJnlike the statute at issue in R.A.V., the Virginia statute does not single out for
opprobrium only that speech directed toward “one of the specified disfavored
topics.”..... It does not matter whether an individual burns a cross with intent to
intimidate because of the victim’s race, gender, or religion, or because of the victim’s
“political affiliation, union membership or homosexuality.”.... Moreover, as a
factual matter it is not true that cross burners direct their intimidating conduct solely
to racial or religious minorities...

The First Amendment permits Virginia to outlaw cross burnings done with the intent
to intimidate because burning a cross is a particularly virulent form of intimidation.
Instead of prohibiting all intimidating messages, Virginia may choose to regulate this
subject of intimidating messages in light of cross burnings’ long and pernicious
history as a signal of impending violence. Thus, just as a state may regulate only that
obscenity which is the most obscene due to its prurient content, so too may a state
choose to prohibit only those forms of intimidation that are most likely to inspire fear
of bodily harm. A ban on cross burning carried out with the intent to intimidate is
fully consistent with our holding in R.A.V. and is proscribable under the First
Amendment.

Conclusion

As our Supreme Court has recognized repeatedly, “Article VIII of the South Carolina
Constitution mandates ‘home rule’ for local governments and requires ‘all laws concerning local
government [to] be liberally construed in their favor.’” S.C. State Ports Auth. v. Jasper Cnty.,
368 S.C, 388, 402-03, 629 S.E.2d 624, 631 (2006). Thus, “[w]here an ordinance is not
preempted by State law, the ordinance is valid if there is no conflict with State law.” Id. at 403,
629 S.E.2d at 631. An ordinance of a municipality (or county) has a strong presumption of
constitutionality. Ani Creation. Inc. v. City of Myrtle Beach Bd. Of Zoning Appeals, supra. The
ordinance remains valid unless and until a court sets it aside. Even so, it is our opinion that a
court could well conclude that the ordinances in question are inconsistent with the state and
federal Constitutions.

For purposes of Article VIII, § 14(5), the framers considered state criminal laws unique
and in need of uniformity. In other words, they wished to avoid a “patchwork” of criminal laws.
The West Committee, which drafted Art. VIII, § 14(5), was particularly concerned about local
governments “making an act a crime that was not a crime under state law.” See Diamonds,

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supra. Our Supreme Court has consistently upheld this principle, in the cases cited herein,
seeking to avoid such a “patchwork.” We have noted herein that Justice Burnett did not believe
the Court’s interpretation of Art. VII, § 14(5) went nearly so far. However, his was a minority
view, and the Court’s construction of Art. VIII, § 14(5) has continued.

While there exist state crimes on the books which are related to the “hate crimes”
ordinances in question, see, e.g. § 16-15-10 et seq., we are aware of no state law crime making as
a separate offense the intent to “intimidate” because of race, color, creed, religion, etc. As you
say, “[a]s repulsive, despicable , and unnecessary as hate of any kind is, such has not been
outlawed throughout the State... .” Further, you note “it has, however, been discussed in the
State Legislature.” The seeming lack of willingness of the State Legislature to take up the bills,
in your words, indicates that such “hate conduct is not unlawful in the State as a separate
offense.” We fully agree with your analysis. Apparently, a hate crimes law has passed in the
House, but not the Senate. In short, there is no state “hate crimes” law currently on the books.

Accordingly, while we strongly support Home Rule, in this particular instance, we share
your concerns that a court could well conclude that the ordinances in question are preempted by
State law. Our Supreme Court has made it clear that uniformity in the area of criminal law is
mandated by Art. VIII, § 14(5) of the State Constitution. Criminal laws, such as enactment of a
“hate crimes” prohibition are solely within the province of the General Assembly. Local
governments may not make criminal such conduct which has not been made criminal by the
General Assembly — conduct which our Supreme Court thus considers “legal.” While Justice
Burnett, in concurrence in Martin v. Condon, disagreed with this analysis, still, it is the opinion
of the Court and remains so today. Therefore, the ordinances in question are at considerable risk
of being found by a court to be violative of Art. VIII, § 14(5) of the Constitution. We note that
hate by intimidation on the basis of the “disfavored” factors set forth in the proposed Ordinance
constitutes a “separate offense.” In our view, this makes the proposed Ordinance especially
subject to challenge. Of course, a municipality is free to adopt an ordinance regulating “hate
crimes” which is not criminal in nature. Foothills Brewing, supra (smoking ordinance upheld,
which made smoking in certain areas “unlawful,” but not criminal).

Likewise, pursuant to the R.A.V. case, a court may well conclude that the ordinances in
question violate the First Amendment. According to R.A.V., the ordinances may be held by a
court to be content-based, as well as viewpoint-based. As was said in Virginia v. Black, in
upholding a cross-burning statute, a hate crimes law may not “single out for opprobrium only
that speech directed toward ‘one of the specified disfavored topics.’” [race, gender, religion, etc. ]
538 U.S. at 362-63, While subsequently Wisconsin v. Mitchell ruled valid a statute which
enhanced a sentence based upon these “disfavored topics,” such as race, religion, etc., here, the
ordinance appears to be founded as a separate offense, based simply upon intimidation, using
these “disfavored” factors to constitute a “separate offense.” Thus, the ordinances are subject to
a strong First Amendment and preemption challenge.

James Graham Padgett, III, Esquire
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October 10, 2025

The use of hatred to intimidate others is repulsive and has no place in society. Our
opinion herein in no way intends to undermine the importance of Home Rule or the ability of
local governments to condemn racial, religious, or other forms of hatred. We condemn these as
well and fully support Home Rule. We are required, however, to set forth the legal standards
enunciated by our Supreme Court concerning preemption under the State Constitution and by the
United States Supreme Court regarding the First Amendment under the federal Constitution. We
do so herein. In our opinion, criminal hate crimes ordinances have been rendered “off limits” by
our State Constitution and this form of criminal behavior may be addressed only by the General
Assembly. Our Supreme Court has made it clear that local governments may not make criminal
what remains “legal” under statewide criminal law. Such ordinances also may well violate the
First Amendment for the reasons set forth in R.A.V. Thus, we fully agree with your analysis,
articulated in your letter.

Sincerely,

7 Core
Robert D. Cook

Solicitor General Emeritus