State v. Sheldon

MURPHY, Chief Judge. A Maryland statute requires those who wish to burn crosses or other religious symbols to do two things: (1) secure the permission of the property owner where the burning is to occur and (2) notify the local fire department before engaging ⁴⁹ in the burning. The issue in this case is whether Maryland’s “cross burning” law is constitutional. I On October 17, 1991, Brandon Forrest Sheldon ignited a cross on the property of Harry Smith and his family, who are black.

Sheldon had not obtained permission to burn the cross on Smith’s Prince George’s County premises, nor had he notified the local fire department of his intentions. Thus, the State charged Sheldon with a violation of Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 10A, which provides: It shall be unlawful for any person or persons to burn or cause to be burned any cross or other religious symbol upon any private or public property within this State without the express consent of the owner of such property and without first giving notice to the fire department which services the area in which such burning is to take place. Any person or persons who violates the provisions of this section shall, upon conviction, be deemed guilty of a felony and shall suffer punishment for a period not to exceed 3 years or shall be fined an amount not to exceed $5,000 or shall suffer both such fine and imprisonment in the discretion of the court. On March 29, 1992, Thomas Eugene Cole burned a cross on State-owned property in Prince George’s County.

Cole also had neither secured the State’s permission nor notified the area fire department, and he too was charged with violating § 10A. Sheldon and Cole (appellees) both moved to dismiss their indictments on the ground that § 10A is unconstitutional. On October 26, 1992, the Circuit Court for Prince George’s County (Salmon, J.) conducted a hearing on both motions. The appellees challenged § 10A on five separate constitutional grounds.

They claimed that the cross burning statute: (1) on its face violates the free speech provision of the First Amendment to the United States Constitution; (2) as applied violates the free speech provision; (3) violates the establishment clause of the First Amendment; (4) is unconstitutionally ⁵⁰ vague; and (5) is unconstitutionally overbroad. The court ruled that the cross burning law on its face violates the free speech clause of the First Amendment, and therefore it did not consider the remaining constitutional challenges. The court found, first, that although the burning of a cross denotes conduct as opposed to actual speech, the act is sufficiently expressive to qualify for First Amendment protection. Second, the court held that Maryland’s cross burning law is sufficiently related to the.suppression of free expression so as to warrant strict judicial scrutiny.

Third, the court determined that the statute could not withstand strict scrutiny. Finally, the court concluded that the law fell within no doctrinal exceptions which would exempt it from rigorous First Amendment examination. Striking down the statute as unconstitutional, the court granted appellees’ motions to dismiss their indictments. We granted certiorari before intermediate appellate review to consider the important First Amendment question raised in this case.

II The First Amendment, literally, protects only “speech” from governmental regulation, but the Supreme Court has “long recognized that [the First Amendment’s] protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 , 109 S.Ct. 2533, 2539 , 105 L.Ed.2d 342 (1989). Maryland’s cross burning statute regulates not pure speech but unspoken conduct, namely, the burning of religious symbols. Thus, before we can decide whether the First Amendment protects that conduct from the statutory regulation, we must decide as a threshold matter whether the conduct qualifies as “speech” for First Amendment purposes. The court below held that it does, and we agree.

In Spence v. Washington, 418 U.S. 405 , 94 S.Ct. 2727 , 41 L.Ed.2d 842 (1974), the Supreme Court observed that certain conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth ⁵¹ Amendments.” Id. at 409 , 94 S.Ct. at 2730 . In determining what conduct qualifies, the Court has looked to whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Id. at 410-11 , 94 S.Ct. at 2730 . Under this analysis, the Court has determined that a variety of expressive conduct constitutes “speech” for First Amendment purposes. See e.g.

Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 , 89 S.Ct. 733 , 21 L.Ed.2d 731 (1969) (wearing of black armbands to protest American military involvement in Vietnam); Brown v. Louisiana, 383 U.S. 131 , 86 S.Ct. 719 , 15 L.Ed.2d 637 (1966) (sit-in by blacks to protest segregation); Johnson, supra, 491 U.S. 397 , 109 S.Ct. 2533 (flag burning to protest the policies of the Reagan administration). This analysis indicates that the act of burning a cross or other religious symbol must also qualify as “speech” under the First Amendment. Those who openly burn crosses do so fully cognizant of the controversial racial and religious messages which such acts impart. Historically, the Ku Klux Klan burned crosses to express hostility toward blacks and other groups it disfavored, and it is that idea which contemporary cross burners aim to perpetuate.

While the burning of other religious symbols may not carry precisely the same implications, such acts at a minimum signal animosity for members of the religion whose symbol is burned. Because of these well known and painfully apparent connotations of burning religious symbols, there can be no doubt that those who engage in such conduct intend to “convey a particularized message,” or that those who witness the conduct will receive the message. Two of the Supreme Court’s recent cases reinforce the conclusion that the burning of religious symbols constitutes First Amendment expression. In Johnson, supra, the Court determined that the act of burning an American flag is, in certain circumstances, “speech” within the First Amendment’s ambit.

The Court observed, “Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in ‘America.’ ” 491 U.S. at 405 , ⁵² 109 S.Ct. at 2540 . As powerful an emblem as is the flag, the cross, as the two-thousand-year-old symbol of Christianity, has spiritual connotations affecting more people than the flag of any single nation. We cannot conclude that the burning of a cross, or of other recognized religious symbols, is less expressive than the burning of the American flag. More importantly, in R.A.V. v. City of St. Paul, Minnesota, — U.S.—, 112 S.Ct. 2538 , 120 L.Ed.2d 305 (1992), to be discussed in detail infra, the Supreme Court reviewed a Minnesota statute which provided: Whoever places on public or private property 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 commits disorderly conduct and shall be guilty of a misdemeanor.

(Emphasis added.) While the Court did not explicitly state that cross burning or other acts prohibited by the statute are expression cognizable by the First Amendment, such a conclusion necessarily precedes the Court’s holding that the statute facially violated the First Amendment. These cases clearly establish that the burning of a cross or other religious symbols is “speech” in the contemplation of the First Amendment. Indeed, the State concedes as much. The more difficult question is whether the First Amendment protects such speech from the regulation of Maryland’s statute.

Ill The open and deliberate burning of religious symbols is, needless to say, odious to thoughtful members of our society. Such acts, which allow the cowardly to avoid articulating and defending their irrational beliefs, display contempt for the targeted religious groups and, when crosses are burned, for blacks in particular. The hostility which surrounds these acts makes it imperative, therefore, for us to remain mindful of a most important axiom in assessing the constitutionality of ⁵³ Maryland’s cross burning statute: “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, 491 U.S. at 414 , 109 S.Ct. at 2544 . A Maryland’s cross burning statute, as we have said, regulates expressive conduct, not actual speech.

A statute which regulates only conduct may have nothing to do with restricting speech; its purposes may be entirely benign and within the legitimate interests of government. Thus, in determining whether the First Amendment protects the appellees’ conduct from the statutory intervention, we must first decide whether the statute is “related to the suppression of free expression.” Johnson, 491 U.S. at 403 , 109 S.Ct. at 2538 . If the statute is unrelated to the suppression of expression, then, according to Johnson , we must evaluate the statute by the relatively lenient test the Supreme Court articulated in United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1968). 491 U.S. at 403 , 109 S.Ct. at 2538 . The O’Brien test specifies that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. 391 U.S. at 377 , 88 S.Ct. at 1679 .

However, even if the cross burning statute is related to the suppression of expression, we must still judge it under a relatively lenient standard similar to the O’Brien test if we find it to be “content-neutral.” A content-neutral regulation of speech is one which is “ ‘justified without reference to the content of the regulated speech.’ ” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 , 106 S.Ct. 925, 929 , 89 L.Ed.2d 29 ⁵⁴ (1986) (quoting, with emphasis, Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 , 96 S.Ct. 1817,1830 , 48 L.Ed.2d 346 (1976)). A content-neutral speech regulation typically seeks only to subject the speaker to, in the Court’s oft-repeated phrase, “reasonable time, place, or manner restrictions.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 , 104 S.Ct. 3065, 3069 , 82 L.Ed.2d 221 (1984). The standard for adjudicating content-neutral time, place, or manner restrictions is that they are valid “provided that ... they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Clark, 468 U.S. at 293 , 104 S.Ct. at 3069 ; see Perry Educ. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45 , 103 S.Ct. 948, 954 , 74 L.Ed.2d 794 (1983).

The requirement that such restrictions be “narrowly tailored” does not mean that they need be the least restrictive or least intrusive means of serving the government’s interest. Ward v. Rock Against Racism, 491 U.S. 781, 798 , 109 S.Ct. 2746, 2757 , 105 L.Ed.2d 661 (1989). To recapitulate, if we find the cross burning statute to be unrelated to the suppression of expression, we must appraise it under the O’Brien test. If we determine the statute to be related to the suppression of expression but content-neutral, we review it under the standard for time, place, or manner restrictions.

While the two standards are formally distinct in their application, the Court has observed that the O’Brien test “in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions.” Clark, 468 U.S. at 298 , 104 S.Ct. at 3071 ; Ward, 491 U.S. at 798 , 109 S.Ct. at 2757 . On the other hand, if we find that the cross burning statute is both related to the suppression of expression and not content-neutral, i.e. if we find that the statute is content-based, then we must review it under a much more demanding test than either the O’Brien or time, place, or manner standards. This is because content-based statutes are presump ⁵⁵ tively invalid, R.A.V., supra, — U.S. at —, 112 S.Ct. at 2542 ; Renton, supra, 475 U.S. at 45-7 , 106 S.Ct. at 928 , for such regulations “raise[ ] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” Simon & Schuster, — U.S. at —, 112 S.Ct. at 508 . Thus, content-based restrictions will warrant strict judicial scrutiny: “the State ... must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Perry, supra, 460 U.S. at 45 , 103 S.Ct. at 955 ; see Simon & Schuster v. New York Crime Victims BcL, — U.S. —, —, 112 S.Ct. 501, 509 , 116 L.Ed.2d 476 (1991).

Rarely do laws survive such scrutiny. Burson v. Freeman, — U.S.—, —, 112 S.Ct. 1846, 1857 , 119 L.Ed.2d 5 (1992). B We believe the cross burning statute is a content-based regulation of speech, and therefore must be subject to strict scrutiny. The Supreme Court has said: The principal inquiry in determining content-neutrality . .. is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.

The government’s purpose is the controlling consideration. Ward, supra, 491 U.S. at 791, 109 S.Ct. at 2754 (citations omitted). The State argues that its purpose in adopting the cross burning statute was to protect property owners from unwanted fires and to safeguard the community from fires generally. The State insists that the cross burning statute “is not intended to impact upon the right of free expression.” 1 For two reasons, we disagree. ⁵⁶ First, the very definition of content-neutral indicates that the cross burning statute is not.

A content-neutral regulation, as noted earlier, is one which is “justified without reference to the content of the regulated speech.” Renton, 475 U.S. at 48 , 106 S.Ct. at 929 (emphasis in original). We see no way to justify the cross burning statute without referring to the substance of speech it regulates, because the statute does not protect property owners or the community from unwanted fires any more than the law already protected those groups before the statute’s enactment. The General Assembly long ago criminalized the arson of real and personal property, with penalties generally much stiffer than those for cross burning.' Maryland Code (1957, 1992 Repl. Vol.) Art. 27, §§ 6-11.

Likewise, the Legislature has outlawed trespass on posted property and cultivated land, Code, Art. 27, §§ 576, 579B, and trespass remains a common law crime where it amounts to a breach of the peace. In re Appeal No. 631, Term 1977, 282 Md. 223, 226 , 383 A.2d 684 (1978). The burning of a religious symbol on another’s property without permission would certainly constitute trespass and, if the fire spread beyond the burning emblem, perhaps arson. Thus, the cross burning statute adds little in scope to the pre-existing scheme for fire protection created by Maryland’s common and statutory law.

Second, the legislative history of the cross burning statute reveals that the State’s true purpose in enacting the statute was to express disagreement with the act of burning religious symbols. A bill to address cross burning was first introduced into the General Assembly in 1966, in the midst of an era of racial strife, by Delegate Clarence Mitchell, III, a civil rights activist. The bill, which became law that session, ch. 315 of the Acts of 1966, made the burning of religious symbols a misdemeanor punishable by a fine of $500 and/or 90 days imprisonment. While there is no extensive legislative history of the law as first promulgated, there is ample documentation surrounding the General Assembly’s first alteration of the ⁵⁷ statute in 1980.

In that year, several delegates introduced an amendment