Tyler Clementi’s tormentor won a huge legal victory on Friday when a New Jersey appeals court tossed out his 2012 conviction for anti-gay intimidation. You remember the case: Dharun Ravi, Clementi’s roommate at Rutgers University, cruelly bullied the 18-year-old by secretly filming his intimate encounter with a man and then posting it on social media. After Clementi died by suicide, Ravi was tried and convicted for 15 criminal acts, including bias intimidation, a type of hate crime in New Jersey. But his conviction has now been fully overturned, because the New Jersey Supreme Court found the state’s bias intimidation law to be unconstitutional.
For Clementi’s family, this is surely a heartbreaking development. The man who indisputably harassed and persecuted their young son has seen his conviction thrown out, and although Ravi has already served his brief jail sentence, his legal vindication must seem to be a moral outrage. Yet a close examination of the New Jersey law under which Ravi was convicted demonstrates why Friday’s decision was so necessary: This dangerously vague statute threatened both due process and free expression in a profoundly misguided attempt to push New Jersey’s citizens toward tolerance.
To understand why New Jersey’s bias intimidation law was so blatantly unconstitutional, consider how a typical hate crime statute works. The government can’t criminalize hateful speech under the First Amendment, but it can punish criminal acts motivated by hate. Indeed, the government is constitutionally permitted to enhance penalties for criminal acts that are motivated by bigotry. All but five states have some form of hate crime laws. Thirty states, the District of Columbia, and the federal government have passed laws that enhance penalties for anti-gay hate crimes. These statutes usually require the jury to decide beyond a reasonable doubt that the defendant’s illegal acts were motivated by bias against the victim’s sexual orientation.
New Jersey’s statute flipped this formulation on its head. Instead of considering whether the defendant was motivated by anti-gay bias, the state’s bias intimidation law required the jury to decide whether the victim “reasonably believed” that the defendant targeted him because of some protected characteristic. That meant the defendant could be found guilty of bias intimidation even if he had absolutely no intent to intimidate his victim because of his identity. So long as a jury concluded that the victim “reasonably believed” he was persecuted because of a protected characteristic, the defendant could be charged with a hate crime. His actual state of mind was irrelevant. This radical departure from the traditional hate crime statute is unlike any other state’s bias law.
The New Jersey Supreme Court unanimously struck down this problematic provision of the statute in 2015, ruling that it violated the Due Process Clause of the 14th Amendment to the U.S. Constitution. A criminal law, the court explained, violates due process when it is “so vague” that a person “of common intelligence must necessarily guess at its meaning.” In order to comport with due process, a criminal law must “draw clear lines separating criminal from lawful conduct.” But the New Jersey bias intimidation statute drew no such lines. Instead, it allowed a defendant to be convicted “even if he had no purpose to intimidate” or “knowledge that his conduct would intimidate” his victim on the basis of a protected characteristic.
In other words, the law expected a defendant to read his victim’s mind—then required the jury to read the victim’s mind as well. A criminal statute whose reach is defined by a victim’s subjective sense of persecution is the very essence of an unconstitutionally vague law.
Because the New Jersey law so obviously violated defendants’ due process rights, the state Supreme Court refrained from engaging in a free speech analysis. But a lower court had found that the bias intimidation statute also violated the First Amendment by “criminalizing speech.” The appeals court held that a state may not punish “speech or other expressive activity” based on the “effect of the speech on the victim.” Put differently, “the state cannot criminalize bigoted or ‘politically incorrect’ speech based solely on a listener’s offended reaction.” There must be some additional element to the crime—typically, the speaker’s intent to illegally harass or intimidate his victim. Without this extra element, the court found, the New Jersey law punished protected expression by allowing a victim’s mere reaction to turn constitutionally protected speech into illegal intimidation.
Which brings us back to the Clementi case. In response to the state Supreme Court decision, a lower court felt compelled to throw out Ravi’s entire conviction, concluding correctly that “the evidence the state presented to prove the bias intimidation charges … permeated the entire case against [the] defendant.” The court called for a new trial on more straightforward charges, like invasion of privacy, but state prosecutors have not yet announced plans to continue pursuing the case—an encouraging sign for Ravi. Clementi’s parents took the news with equanimity, while noting that their son’s “private moments were stolen from him and used to humiliate him.”
They’re right, of course. Ravi’s actions remain monstrous, an appalling and illegal invasion of privacy, and he surely deserves his ignominy. But there are broader principles at stake in the Clementi case. Should we allow the government to turn our personal sense of persecution into a criminal speech code? Should we permit the courts to imprison individuals for bias-motivated crimes when they had no intent to intimidate minorities? However desirable tolerance may be, the Constitution puts these remedies out of reach. We cannot cure one injustice with another.
Ravi was convicted under a law that criminalized expression and threatened to jail individuals with a perfectly innocent state of mind. His crimes were execrable, yet his conviction was unconstitutional: It is a bedrock rule of due process that no person, however personally culpable, can be justly imprisoned under an unjust law. To preserve the fundamental fairness of our criminal justice system, terrible people must sometimes walk free. And it is a painful but necessary result of this rule that Dharun Ravi’s conviction simply could not stand.