Lipp v. State
| Decision Date | 30 April 2020 |
| Docket Number | No. 181, Sept. Term, 2019,181, Sept. Term, 2019 |
| Citation | 246 Md.App. 105,227 A.3d 818 |
| Parties | Matthew J. LIPP v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Argued by: Phillip Closius (Brian G. Thompson, Erin C. Murphy, Silverman, Thompson, Slutkin & White, on the brief), Baltimore, MD, for Appellant.
Argued by: Derek S. Simmonsen (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.
Panel: Graeff, Nazarian, Glenn T. Harrell, Jr., Senior Judge, Specially Assigned, JJ.
Graeff, J. Matthew Lipp, appellant, was convicted in the Circuit Court for Howard County of defacing property where there is evidence exhibiting animosity against groups because of race, color, religious beliefs, or sexual orientation, in violation of Md. Code , § 10-305 of the Criminal Law Article ("CR"). Appellant contends that the circuit court erred in denying his motion to dismiss, arguing that CR § 10-305 is unconstitutional because it violates the First Amendment right of freedom of speech.
For the reasons set forth below, we disagree, and therefore, we shall affirm the judgment of the circuit court.
At approximately 11:30 p.m. on May 23, 2018, appellant and three other individuals went to Glenelg High School and spray-painted graffiti on the school building, sidewalks, and trash receptacles. The graffiti included swastikas, anti-LGBTQ phrases, and other offensive writings, including "KKK," "n****rs," and "fuck jews." In addition, there was graffiti on a sidewalk that stated: "Burton is a n****r," referring to the school principal, who is African-American. The suspects subsequently were identified as four students attending the school, including 18-year-old appellant. The students ultimately confessed to the incident.
On July 12, 2018, appellant was indicted on seven criminal charges: two counts of defacing real and personal property where there is evidence exhibiting animosity against groups because of their race, color, religious beliefs, or sexual orientation in violation of CR § 10-305(2) ; one count of conspiracy to commit a violation of CR § 10-305(2) ; one count of malicious destruction of property over $1,000; one count of conspiracy to commit malicious destruction of property over $1,000; one count of school trespass and damage; and one count of conspiracy to commit school trespass and damage.
He argued that the statute violated the First Amendment because it impermissibly regulated protected speech, similar to the city ordinance struck down by the United States Supreme Court in R.A.V. v. City of St. Paul , 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).
On December 18, 2018, the circuit court held a hearing on appellant’s motion to dismiss.2 Appellant’s attorney argued that, pursuant to CR § 10-305, it was permissible to use graffiti and refer to someone as a thief, but if that person used an offensive epithet, that would be illegal. Therefore, counsel asserted that CR § 10-305 regulated content-based speech and was unconstitutional under R.A.V. Counsel distinguished Wisconsin v. Mitchell , 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), noting that the Wisconsin statute provided for enhanced penalties for a person who committed a violent crime with a particular motive, whereas CR § 10-305 criminalizes specific speech.
The State argued that the court should deny the motion to dismiss, asserting that CR § 10-305 targets conduct, not speech. It asserted that the statute "takes what is already criminal conduct," i.e., defacement of property, and "merely adds a sentence enhancement." As a result, the State argued that Mitchell is "directly on point to Maryland’s hate-crime statute." The State also argued that it made no difference that CR § 10-305 is a separate criminal penalty, as opposed to a sentencing enhancement accompanying an existing criminal statute, stating that the General Assembly is permitted to establish penalties by either method.
At the conclusion of the hearing, the court denied appellant’s motion to dismiss. It explained:
I find that pursuant to the Supreme Court’s holding in Wisconsin v. Mitchell , 508 U.S. 476[, 113 S.Ct. 2194, 124 L.Ed.2d 436], that the First Amendment does not protect biased-motivated speech when it is coupled with non-verbal conduct otherwise proscribed. In this particular case, malicious destruction of property, trespass on the school grounds, damaging school property.
The court found "that the Maryland hate-crime statute is essentially a sentence enhancement statute," and it is constitutional under Mitchell and "Maryland’s Ayers case."
On February 6, 2019, appellant was convicted of one count of violating CR § 10-305(2).3 The State nolle prossed the other charges. The court then sentenced appellant to three years’ incarceration, all but 48 days suspended, to be served over 15 consecutive weekends, with supervised probation for three years, 250 hours of community service, and fines and court costs.4
This appeal followed.
"[T]he standard of review of the grant or denial of a motion to dismiss is whether the trial court was legally correct." Howard v. Crumlin , 239 Md. App. 515, 521, 197 A.3d 574 (2018) (quoting Blackstone v. Sharma , 461 Md. 87, 110, 191 A.3d 1188 (2018) ), cert. denied , 463 Md. 153, 204 A.3d 193 (2019). Therefore, we review the dismissal of a motion to dismiss de novo . D.L. v. Sheppard Pratt Health Sys., Inc ., 465 Md. 339, 350, 214 A.3d 521 (2019).
Appellant argues on appeal that the trial court erred in denying his motion to dismiss, asserting that CR § 10-305 is unconstitutional because it "penalizes a viewpoint," and therefore, it violates the First Amendment right to freedom of speech. He contends that "nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses."5
The State contends that the circuit court properly denied appellant’s motion to dismiss because CR § 10-305 is constitutional. It asserts that, pursuant to "Supreme Court precedent, states may not punish pure expression, but they may [punish] criminal conduct that is motivated by bias." It argues that CR § 10-305 does not violate the First Amendment because it targets conduct, not speech.
The First Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits Congress from making any law "abridging the freedom of speech." Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). Content-based regulation of speech is presumptively invalid under the First Amendment. R.A.V ., 505 U.S. at 382, 112 S.Ct. 2538. And the First Amendment "affords protection to symbolic or expressive conduct as well as to actual speech." Black , 538 U.S. at 358, 123 S.Ct. 1536. See Spence v. Washington , 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) ().
The right to freedom of speech, however, is "not absolute at all times and under all circumstances." Chaplinsky v. New Hampshire , 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ; Black , 538 U.S. at 359, 123 S.Ct. 1536. "The First Amendment permits ‘restrictions upon the content of speech in a few limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." ’ " Black , 538 U.S. at 359–60, 123 S.Ct. 1536 (quoting R.A.V ., 505 U.S. at 382–83, 112 S.Ct. 2538 ). Examples include obscenity, defamation, and " ‘fighting words,’ i.e. , ‘conduct that itself inflicts injury or tends to incite immediate violence.’ " R.A.V ., 505 U.S. at 380, 112 S.Ct. 2538 (quoting In re Welfare of R.A.V ., 464 N.W.2d 507, 510 (Minn. 1991) ). "[T]he First Amendment also permits a State to ban a ‘true threat,’ " i.e., a statement meant to "communicate a serious expression of an intent to commit an act of unlawful violence to a particular" person. Black , 538 U.S. at 359, 123 S.Ct. 1536.
In assessing the constitutionality of CR § 10-305, the parties rely extensively on R.A.V. and Mitchell . In these cases, "the Supreme Court staked out the boundary between a state’s unconstitutional regulation of unpopular beliefs in the marketplace of ideas and the permissible regulation of conduct motivated by those beliefs." People v. Rokicki , 307 Ill.App.3d 645, 240 Ill.Dec. 852, 718 N.E.2d 333, 336–37 (1999). We begin our analysis with a discussion of these cases.
In R.A.V ., 505 U.S. at 379, 112 S.Ct. 2538, a juvenile and several other teenagers burned a cross on the yard of an African-American family. The defendant was convicted under St. Paul’s hate crime ordinance, 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.
Id. at 380, 112 S.Ct. 2538 (quoting St. Paul, Minn., Legis. Code § 292.02 (1990)).
The Minnesota Supreme Court held that the ordinance did not violate the First Amendment. Id. It found that the modifying phrase "arouses...
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