In January 2014, the American Civil Liberties Union of New Jersey filed an amicus brief on behalf of the defendant regarding the constitutionality of New Jersey’s Bias Intimidation Statute. The brief argues that the provision of the statute that does not require that the defendant intend to intimidate based on bias violates the First Amendment and limits the free speech of New Jersey residents.
The current statute increases the penalty for committing certain criminal offenses if the defendant either selects the victim or intends to intimidate him because of his race, color, religion, gender, disability, sexual orientation, gender identity of expression, national origin or ethnicity. The troublesome subsection of the statute states that a defendant is guilty of bias intimidation if the victim was intimidated and reasonably believed that the defendant acted from a discriminatory motive. The brief argues that the state may not punish a person’s expression because listeners disagree with it or find it offensive, annoying or distasteful. Before the state can attach a penalty to using discriminatory words they must first identify the motive rather than using the victim’s perception of what the defendant intended by their words.
This case is pending before the Supreme Court of New Jersey.