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Joshua Shapiro. See, e. Title VII is not concerned with discriminatory thought. It operates whether the employment action is based on xenophobia, intolerance, or fear of losing other bigoted customers. While the employment decision may reflect some bias, Title VII is only concerned with the act of discriminating in employment practices against a person because of his or her minority status. Griggs v. Duke Power Co. United States, U. Likewise, RCW 9 A.

As Justice Stevens stated in his concurrence in R. Thus, penalty enhancement statutes, like antidiscrimination laws, regulate conduct rather than speech. Since punishment is enhanced only in these circumstances, they reason that the statute effectively punishes bigoted thought.

Even if we were to agree with the respondents that enhancement statutes punish bigoted thought, RCW 9 A. Noting that "content discrimination among various instances of a class of proscribable speech often does not pose [a] threat", Justice Scalia found three exceptions to the prohibition against content discrimination.

The first exception in R. The examples the Court gave for this exception were 1 prohibitions against only that obscenity which is most offensive in its prurience, 2 threats of violence directed against the President, and 3 regulation of price advertising in only one industry because, in the State's view, the risk of fraud is greater in that industry. In accord with this exception, RCW 9 A. The resulting harm is greater than the harm caused by that same conduct absent the special animus underlying hate crimes.

The greater harm of such acts justifies the increased punishment. Hate crimes are undeniably more damaging than their content-neutral counterparts. In adopting the malicious harassment statute, the Washington Legislature found that:. Moreover, there are other instances in the criminal code where the Legislature has similarly enhanced penalties for targeting a victim based on the victim's status.

When criminal conduct is aimed at individuals because of their particular status, the State may legitimately conclude that there is greater harm justifying greater punishment. Paul had argued in the juvenile court that "[t]he burning of a cross does express a message and it is, in fact, the content of that message which the St. Paul Ordinance attempts to legislate. Unlike the St. Paul statute, RCW 9 A. If the conduct in question can be characterized as speech, RCW 9 A. As the American Civil Liberties Union of Washington points out in its amicus brief, a malicious harassment statute is "a public necessity".

Brief of Amicus Curiae, at Scholars agree with the proposition that "hate crimes" carry harmful secondary effects. Gellman writes that:. See R.

The express language of subsection 1 b protects such discriminatory ideas and philosophies where they are not combined with criminal acts.

Finally, respondents urge this court to follow the reasoning adopted by the Wisconsin and Ohio courts which have held that while punishment of "intent" is appropriate, statutes cannot constitutionally punish "motive". While we concede that there may be a distinction between intent and motive, we are persuaded that in this context it is a distinction without a difference. While the State must prove that the defendant selected a victim because of perceived membership in a specified group, it is not required to establish the "motive" underlying that choice.

As discussed earlier, RCW 9 A. See also Mitchell, S. Washington courts apply the federal overbreadth analysis to such challenges. A statute is overbroad if it prohibits constitutionally protected speech within its plainly legitimate sweep. Thornhill v. Alabama, U. Eze, Wn. A statute is void in its entirety for overbreadth only if it reaches a substantial amount of protected speech and there exists no way of severing the statute's unconstitutional applications.

Huff, at ; Houston v. Hill, U. Ferber, U. The Court has held that the overbreadth doctrine is "strong medicine" when used to invalidate a statute on its face and it should be applied "only as a last resort. Oklahoma, U. In Broadrick, the Court required substantial regulation of speech before it invalidated a statute on overbreadth grounds. In that case, state employees challenged a statute which prohibited them from engaging in political fundraising.

Within the statute's legitimate sweep were activities such as wearing campaign buttons or displaying bumper stickers. The Court held that the illegitimate applications of the statute were insubstantial when compared to the statute's legitimate sweep. Broadrick, at Applying the rationale in Broadrick, we conclude that the incidental impact on speech does not render subsection 1 unconstitutionally overbroad. Second, its effect on speech is minimal.

As the Court in R. The nexus between criminal conduct and any speech implicated ensures that subsection 1 does not deter a substantial amount of protected expression. As is evident in the statute itself, the Legislature ensured that, absent criminal conduct, bigoted speech and thought are protected. A person is free under the statute to make his or her odious bigoted thoughts known to the world so long as those words do not cross the boundary into criminal harassment, assault, or property damage.

Any overbreadth apparent in the application of RCW 9 A. It is true that utterances by the defendant may offer circumstantial evidence of discrimination or victim selection, but as with employment discrimination, victim selection can be shown by a pattern of conduct absent any speech. Even if speech is used to prove victim selection, we can find no distinction between using speech to prove malicious harassment or any other crime.

Only that speech relevant to proving the crime will be admitted. As is always the case, the trial judge will be required to balance the probative value of the evidence against the prejudice to the defendant. The State cannot simply produce evidence of bigoted beliefs. Before such evidence can be admitted, the State must establish the relationship between the speech and the act of victim selection.

See Rules of Evidence , , ; accord, Mitchell, S. Respondents also argue that the statute is overbroad because it chills protected speech. The only chilling effect that RCW 9 A. To be sure, the actor committing a victim selection crime may be less likely to utter a racial epithet when committing the crime.

Any danger that the statute's overbreadth will chill protected bigoted speech is sufficiently minimized by the language of subsection 1 b iii which specifically protects such speech. He argues that the Washington Constitution categorically prohibits prior restraints. In support of this proposition, he cites O'Day v.

King Cy. Myers fails, however, to brief any of the six factors set out in State v. Gunwall, Wn. We conclude that RCW 9 A. The implication of speech as circumstantial evidence is minor and does not warrant the statute's invalidity. As the Dobbins court stated, "[i]t doesn't matter that Dobbins hated Jewish people or why he hated them; it only mattered that he discriminated against [him] by beating him because he was Jewish. He argues that the meaning of the phrase "in a way that is reasonably related to, associated with, or directed toward" is unclear.

He also questions whether the phrase "reasonable fear" is measured by a subjective or objective standard. Further, the challenging party must prove unconstitutionality beyond a reasonable doubt. Smith, Wn. Where terms are not defined, the court will look to the plain, ordinary meaning of the words. American Legion Post 32 v. Walla Walla, Wn.

In ordinary usage, the terms "related" and "associated" are synonymous and mean "connected" or "united" in purpose and interest. Webster's, at ; see also State v. Hansen, 67 Wn. Service Employees Int'l Union, Local 6 v.

Superintendent of Pub. Instruction, Wn. Applying the doctrine of ejusdem generis to the terms in the paragraph at issue, RCW 9 A. Hutsell, Wn. McFarland, 81 Wn. In ordinary usage "because of" means "by reason of" or "on account of". Webster's, at ; see Plowman, at When read as a whole, this language is clear and provides adequate notice that the prohibited conduct is the selection of crime victims from certain specified categories. We also find that the statute gives adequate standards to ensure proper enforcement.

Requiring the State to prove that the threats placed the victim in "reasonable fear" provides an objective standard by which to evaluate the harm to the victim. While Judge Pechman expressed concern about the term "reasonable fear", we note that the term "reasonable" is used commonly in criminal law. In Smith, this court rejected a challenge to that statute noting that because the victim must "reasonably fear" that the threats will be carried out, the statute is not unconstitutional.

See Smith, Wn. Risley, F. We have likewise held that the term "unreasonable" increases objectivity, thus reducing vagueness. Huff, at He states that the act allows prosecutorial discretion to charge a defendant with either malicious harassment or a lesser assault charge for the same conduct depending on whether the State approves of the defendant's beliefs.

Stevens asserts that a prosecutor's exercise of discretion in charging some persons and not others, all guilty of the same crime, violates the Fourteenth Amendment's equal protection clause and article 1, section 12 of the Washington Constitution. Bordenkircher v. Hayes, U. Pettitt, 93 Wn. Such discretion is, however, subject to constitutional constraints, and selective enforcement deliberately based on unjustifiable standards does raise equal protection concerns.

United States v. Batchelder, U. Boles, U. Lee, 87 Wn. This court has held that where there are differing elements between offenses "the prosecutor's discretion is limited by consideration of which elements [can be proved in the particular case]".

Kennewick v. Fountain, Wn. In this case, the increased punishment for assault under RCW 9 A. Under the facts before us we find the prosecutor's charging decision was not based on a bias toward the defendant's thought. Rather, the prosecutorial decision was dictated by statutory consideration of the harm to the victim.

Respondent Stevens provides no evidence of improper or unjustified prosecutorial discretion. Stevens relies substantially on State v. Devine, 84 Wn. Devine holds that equal protection is violated if two statutes parade under different titles, with different penalties, but have identical elements for what constitutes the crime. This argument fails because the two statutes redress substantially different harm and have different elements.

Stevens next posits that the statute violates equal protection because a white defendant engaging in the same act toward a white victim would most likely be charged with misdemeanors. Stevens asserts that the prosecutor would factor in race and that a victim of color would warrant a higher charge against a white defendant. Judge, Wn. Stevens' use of Judge is misplaced. For example, the prosecutor charged Talley, the white defendant, with malicious harassment of a black man, three white women, and two biracial children.

Any effect it has on regulating conduct is merely incidental. Subsection 2 is, therefore, unconstitutional. In defense of the regulation, the State argues that subsection 2 should be read in conjunction with subsection 1 thus requiring the prohibited symbolic speech be in combination with criminal conduct. However, as a general proposition, where the Legislature uses different language within the same statute, we presume that it intended to address different concerns.

Department of Retirement Sys. Department of Motor Vehicles, 13 Wn. Under the State's reading of the statute, subsection 2 a would be repetitive and superfluous. It is clear, therefore, that the Legislature intended to criminalize cross burning and depiction of hate symbols "per se". This is unconstitutional because symbolic hate speech, however offensive, is protected.

Ohio, U. The State asserts that fighting words are excluded from First Amendment protection. Chaplinsky, at The State is correct. The Supreme Court has permitted content-based regulation of speech within certain well-defined categories of unprotected, low value speech. Police Dep't v.

Mosley, U. Such categories of low value speech include, but are not limited to, obscenity, defamation, and "fighting words". However, a finding that a category of speech, such as fighting words, has low First Amendment value does not mean that the speech is wholly without constitutional protection. If a regulation of low value speech is content based, the court applies the same stringent standard of review that it applies to all other content-based regulations.

This general prohibition of content discrimination is premised on the danger that government may "effectively drive certain ideas or viewpoints from the marketplace" by regulating content.

Contrary to the State's assertions, however, subsection 2 falls squarely within the prohibitions of R. Like the St. Paul ordinance, RCW 9 A. Even if construed to address only fighting words, as the Minnesota Supreme Court did with the St. Paul ordinance, the statute is still unconstitutional under the R. Mosley, at 97; O'Day, Wn. Mill, On Liberty 1st ed. It enhances punishment where the crime is made more harmful because the actor selected the victim based on the victim's association in a protected class.

We hold that RCW 9 A. It is, therefore, an unconstitutional content-based regulation of protected speech. Conversely, Myers' and Stevens' conduct arguably falls within subsection 1 of the statute either because they actually damaged the victims' property, or because they placed the victims in reasonable fear for their persons.

Accordingly, we reverse the trial court and remand for appropriate disposition in accord with this decision. See generally Minnesota Criminal Code, Minn. The defendant, however, only challenged his conviction under the St.