State v. Ramsey, No. 23670

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: HARWELL; TOAL; FINNEY
• Citation: 430 S.E.2d 511,311 S.C. 555
• Parties: , 61 USLW 2737 The STATE, Respondent, v. John L. RAMSEY, Appellant. . Reheard
• Decision Date: 09 December 1992
• Docket Number: No. 23670

Page 511

430 S.E.2d 511 311 S.C. 555, 61 USLW 2737 The STATE, Respondent,
v.
John L. RAMSEY, Appellant. No. 23670. Supreme Court of South Carolina. Reheard Dec. 9, 1992.
Decided May 3, 1993.

Page 513

[311 S.C. 557] Melvin L. Roberts, of Melvin L. Roberts & Associates, York, for appellant.

Atty. Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Asst. Atty. Gen. Harold M. Coombs, Jr., and Staff Atty. Rakale Buchanan Smith, Columbia, and Larry F. Grant, Sol., Sixteenth Judicial Circuit, York, for respondent.

ON REHEARING

HARWELL, Chief Justice:

Appellant John L. Ramsey was convicted of burning a cross on property of another and intimidation by use of an incendiary. A majority of this Court upheld his convictions in State v. Ramsey, Op. No. 23670 (S.C.Sup.Ct. filed June 13, 1992) (Davis Adv.Sh. No. 15 at 24) (Ramsey I ). We granted appellant's petition for rehearing to reconsider our prior opinion in light of the United States Supreme Court's determination that cross burning constitutes expressive speech entitled to protection under the First Amendment. We vacate our prior opinion and reverse appellant's convictions.

I. FACTS

The complainant, Chief of Police of the City of York, returned home one morning to discover the charred remains of a wooden cross in his yard. Appellant subsequently was charged with burning a cross on property of another in violation[311 S.C. 558] of S.C.Code Ann. § 16-7-120 (1985), ¹ and intimidation by use of an incendiary in contravention of S.C.Code Ann. § 16-11-550 (1985). ² A jury found appellant guilty, and he was sentenced to prison for one year for

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violating section 16-7-120 and twelve years for violating section 16-11-550.

Shortly after our opinion affirming Ramsey's convictions ³ was published, the United States Supreme Court struck down a Minnesota statute outlawing the placement of bias-motivated symbols on public or private property on the grounds that the Minnesota statute impermissibly restricted the right to freedom of speech guaranteed by the First Amendment. ⁴ R.A.V. v. City of St. Paul, 505 U.S. ----, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). We granted rehearing to consider the impact of R.A.V. on our decision in Ramsey I.

[311 S.C. 559] II. DISCUSSION

The First Amendment ensures that persons may speak as they think on matters vital to them, and that noxious doctrines may be refuted and their evil averted by the courageous exercise of the right of free discussion. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Conduct may be sufficiently imbued with elements of communication so as to fall within the scope of the First Amendment. Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Thus, the First Amendment generally prevents government from proscribing speech or expressive conduct because it disapproves of the ideas expressed. R.A.V., 505 U.S. at ----, 112 S.Ct. at 2542, 120 L.Ed.2d at 317.

As both the majority and dissenting opinions implicitly recognized in Ramsey I, a burning cross historically conveys ideas capable of eliciting powerful responses from those engaging in the conduct and those receiving the message. We discern that the legislature enacted section 16-7-120 in order to protect individuals and society as a whole from the reprehensible messages often sought to be symbolicly expressed by a burning cross. This purpose may be a laudable one, but it reflects the legislature's disapprobation of the ideas a burning cross represents. As disagreeable as the symbolic conduct may be, the First Amendment mandates that government may not prohibit the expression of ideas simply because society finds the ideas themselves to be offensive. Johnson, 491 U.S. at 414, 109 S.Ct. at 2544, 105 L.Ed.2d at 360.

The State urges us to construe section 16-7-120 as proscribing "fighting words." ⁵ We discern that we cannot cure the unconstitutionality of section 16-7-120 by such a construction. Like the Minnesota statute, section 16-7-120 does not completely prohibit the use of fighting words; rather, it prevents only the use of those fighting words symbolicly conveyed by a burning cross. The government may not selectively limit speech that communicates, as does a burning cross, messages of racial or religious intolerance. R.A.V., 505 [311 S.C. 560] U.S. at ----, 112 S.Ct. at 2548, 120 L.Ed.2d at 324. We conclude that section 16-7-120 is facially unconstitutional and that appellant's conviction under this statute must be reversed.

We now address the impact of R.A.V. on section 16-11-550, intimidation by use of an incendiary.

A statute directed at conduct rather than speech may stand; and a statute reaching a proscribable class of speech, such as threats of violence, does not infringe on First Amendment rights.

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R.A.V., 505 U.S. at ----, 112 S.Ct. at 2546, 120 L.Ed.2d at 322. In our view, section 16-11-550 does not, on its face, target conduct on the basis of its expressive content, and thus does not reflect an attempt by government to limit speech. We perceive, however, that section 16-11-550 as construed by the majority in Ramsey I presents overbreadth concerns under the First Amendment. Accordingly, we are constrained to reconsider the construction of section 16-11-550 and, in particular, the interpretation of the term "incendiary" set forth by the majority in Ramsey I.

In the First Amendment context, criminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held invalid even if they also have legitimate application. R.A.V., 505 U.S. at ----, 112 S.Ct. at 2560, 120 L.Ed.2d at 338 (White, J., concurring). The objectionable quality of overbreadth in the area of First Amendment freedoms depends on the danger of tolerating the existence of a penal statute susceptible of sweeping and improper application. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Therefore, when First Amendment rights are involved, this Court must look even more closely at a legislative enactment, lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech suffers. See Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d. 469 (1966).

A majority of this Court interpreted section 16-11-550 to read, "Whoever willfully and unlawfully communicates a threat ... concerning an attempt ... to ... intimidate any individual ... by means of 'something that produces or is capable of producing an effect tending to excite' ... shall be guilty of a felony." To appraise the inhibitory effect of a statute, this Court may take into account possible application[311 S.C. 561] of the statute in other factual contexts besides that at bar. Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct....