State v. Sheldon

• Decision Date: 01 September 1993
• Docket Number: No. 9,9
• Citation: 332 Md. 45,629 A.2d 753
• Parties: , 62 USLW 2155 STATE of Maryland v. Brandon Forrest SHELDON and Thomas Cole. ,
• Court: Maryland Court of Appeals

Page 45

332 Md. 45

629 A.2d 753, 62 USLW 2155

STATE of Maryland v. Brandon Forrest SHELDON and Thomas Cole.

No. 9, Sept. Term, 1993.

Court of Appeals of Maryland.

Aug. 27, 1993.

Gary E. Bair, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for petitioner.

Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for respondent.

Susan Goering, Baltimore, for American Civil Liberties Union of Maryland; Arthur B. Spitzer, Washington, DC, American Civil Liberties Union of the National Capital Area; Curtis L. Culberson and Jeanine Poltronieri, Patton, Boggs & Blow, Washington, DC, for amicus curiae.

Before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

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 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 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 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 405 109 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, 505 U.S. 377, 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.

III

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 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...