State v. Talley

• Decision Date: 09 September 1993
• Docket Number: Nos. 58492-3,58733-7 and 58734-5,s. 58492-3
• Citation: 858 P.2d 217,122 Wn.2d 192
• Parties: STATE of Washington, Appellant, v. David K. TALLEY, Respondent. STATE of Washington, Appellant, v. Daniel MYERS, Respondent. STATE of Washington, Appellant, v. Brandon STEVENS, Respondent. En Banc
• Court: Washington Supreme Court

Page 192

122 Wn.2d 192

858 P.2d 217

STATE of Washington, Appellant, v. David K. TALLEY, Respondent.

STATE of Washington, Appellant, v. Daniel MYERS, Respondent.

STATE of Washington, Appellant, v. Brandon STEVENS, Respondent.

Nos. 58492-3, 58733-7 and 58734-5.

Supreme Court of Washington,

En Banc.

Sept. 9, 1993.

Norm Maleng, King County Prosecutor, Donna L. Wise, Sr. Appellate Atty., Seattle, for appellant

Browne & Ressler, Allen M. Ressler, Seattle, for respondent Talley.

Associated Counsel for the Accused, Debra K. Hannula, Ken Scearce, Seattle, for respondent Myers.

Ronald R. Piper, Bellevue, for respondent Stevens.

Phillip H. Ginsberg, Seattle, Tzivia Schwartz, Los Angeles, CA, Steven M. Freeman, Ruth Lansner, New York City, amicus curiae for appellant on behalf of the Anti-Defamation League.

Paul J. Lawrence, Adam W. Gravley, Seattle, amicus curiae on behalf of the American Civil Liberties Union of Washington.

MADSEN, Justice.

Nearly every state has passed what has come to be termed a "hate crimes statute". See Hate Crimes Statutes: A Status Report, Anti-Defamation League Legal Affairs Department, Civil Rights Division, (Washington, D.C.1991). Some of these statutes enhance penalties where crimes are bias motivated or target certain victims. Other statutes punish various forms of hate speech, such as cross burning. Hate Crimes, at 1-2. The primary inquiry in this case is whether Washington's hate crimes statute, malicious harassment, RCW 9A.36.080, is an unconstitutional infringement of First Amendment rights.

FACTS

State v. Talley

In April of 1991, Phillip and Renee Smith, a mixed race couple, their 3-year-old son, their friend Jeanne Tyler, her son, and their realtor Stacy Litzenberger, visited the house they were purchasing in Maple Valley in King County. The Smiths had recently signed an earnest money agreement, and they were visiting the house to measure it for carpets and drapes.

David Talley, who lived next door, saw the Smiths and complained to bystanders that "having niggers next door" would ruin his property values. He built a 4-foot-tall cross, planted it in his own yard, set it on fire with gasoline, and began to "hoot and holler". These actions attracted the attention The State charged Talley with six counts of malicious harassment. Talley argued that the statute was unconstitutional because it violated his right to free speech. King County Superior Court Judge Patricia Aitken held that subsection (2)(a) of the malicious harassment statute was unconstitutionally overbroad because it infringed on First Amendment guaranties of free speech. She reasoned that although section (1) could be construed as constitutional, Talley's conduct did not fit within the statute under that construction. Judge Aitken granted Talley's motion to dismiss.

                of the Smith party.   They noticed that Talley was wearing fatigues, combat boots, a Harley-Davidson T-shirt, and that he had a clean-shaven head.   Renee Smith approached Talley and asked if there was a "problem".   He replied that he did not talk with her "kind" and ordered her off his driveway.   The Smiths were disturbed and frightened by the incident and opted not to purchase the house
                

State v. Myers and Stevens

In April, 1991, Daniel Myers, Brandon Stevens, and several other teenagers were at a party at one of the teenagers' homes. Conversation at the party turned to Chris Elion, an African-American classmate of the boys. The group decided to burn a cross in the Elion family's yard because some of the boys felt that Chris had been acting "too cool at school".

The teens fabricated a cross, which they planted in the Elions' front yard, and attempted to set it on fire. Mr. and Mrs. Elion had just returned from church when Mrs. Elion noticed the group of teenagers outside. She thought they were friends of her son so she flashed the porch lights on and off, opened the door and called out. The group fled. Mrs. Elion saw the cross and screamed to her husband. Mr. Elion ran outside and found the smoldering 8-foot cross. Only the base of the cross had burned, singeing some nearby shrubbery.

The State charged Myers and Stevens each with one count of malicious harassment. King County Superior Court Judge Marsha J. Pechman concurred with Judge Aitken regarding The State appealed to this court and the three cases were joined to determine the constitutionality of Washington's malicious harassment statute.

subsection (2)(a), but held that subsection (1)(b) was unconstitutionally overbroad because its vague language carried it into "constitutionally treacherous waters".

ANALYSIS

RCW 9A.36.080 states:

(1) A person is guilty of malicious harassment if he maliciously and with the intent to intimidate or harass another person because of, or in a way that is reasonably related to, associated with, or directed toward, that person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap:

(a) Causes physical injury to another person; or

(b) By words or conduct places another person in reasonable fear of harm to his person or property or harm to the person or property of a third person. Such words or conduct include, but are not limited to, (i) cross burning, (ii) painting, drawing, or depicting symbols or words on the property of the victim when the symbols or words historically or traditionally connote hatred or threats toward the victim, or (iii) written or oral communication designed to intimidate or harass because of, or in a way that is reasonably related to, associated with, or directed toward, that person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap. However, it does not constitute malicious harassment for a person to speak or act in a critical, insulting, or deprecatory way unless the context or circumstances surrounding the words or conduct places another person in reasonable fear of harm to his or her person or property or harm to the person or property of a third person; or

(c) Causes physical damage to or destruction of the property of another person.

(2) The following constitute per se violations of this section:

(a) Cross burning; or

(b) Defacement of the property of the victim or a third person with symbols or words when the symbols or words historically or traditionally connote hatred or threats toward the victim.

(3) Malicious harassment is a class C felony.

RCW 9A.36.080. The Legislature attached a severability clause in 1989. Laws of 1989, ch. 95, § 4.

In this appeal, the State of Washington argues that RCW 9A.36.080 regulates criminal conduct and words tantamount We find that RCW 9A.36.080 section (1) withstands constitutional scrutiny because it is aimed at criminal conduct and only incidentally affects speech. Conversely, section (2) is overbroad because it inhibits free speech on the basis of its content. Since our analysis brings us to differing conclusions, we address RCW 9A.36.080(1) and (2) separately.

                to criminal conduct rather than speech.   The State argues further that if the statute does affect speech then it only reaches unprotected fighting words.   The three respondents, Talley, Meyers, and Stevens, contend that RCW 9A.36.080 is unconstitutional because it directly regulates the communicative impact of speech.   They also argue that the statute is overbroad because protected free speech falls within the statute's legitimate scope and because it chills free speech.   Finally, respondent Stevens argues that RCW 9A.36.080(1) violates equal protection and is impermissibly vague
                

RCW 9A.36.080(1)

States have a legitimate interest in restraining harmful conduct and are empowered to do so under their police powers. Seattle v. Hill, 72 Wash.2d 786, 797, 435 P.2d 692 (1967), cert. denied, 393 U.S. 872, 89 S.Ct. 163, 21 L.Ed.2d 142 (1968); Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45, 41 S.Ct. 425, 426, 65 L.Ed. 819 (1921). A state's police power is limited, however, by constitutional protection afforded certain personal liberties. Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wash.2d 418, 435, 511 P.2d 1002 (1973). Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971). In this case, the personal liberty allegedly implicated is freedom of speech. The threshold question, therefore, is whether RCW 9A.36.080 regulates speech or conduct.

CONDUCT versus SPEECH REGULATION

Relying on the Supreme Court's recent decision in R.A.V. v. St. Paul, Minn., --- U.S. ----, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), respondents argue that Washington's malicious harassment statute is a content-based speech regulation and, thus, an unconstitutional restriction on FirstAmendment Unlike RCW 9A.36.080(1), the statute considered in R.A.V. was, on its face, a content-based speech regulation.

                rights.   We do not agree that R.A.V. is controlling on the issue presented by RCW 9A.36.080(1) which we conclude regulates conduct, not speech
                

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.

St. Paul, Minn.Legis.Code § 292.02 (1990); R.A.V., --- U.S. at ----, 112 S.Ct. at 2541. The Minnesota Supreme Court upheld the statute by construing it to apply only to unprotected fighting words which it held were beyond the realm of constitutional scrutiny. In re Welfare of R.A.V., 464 N.W.2d 507 (Minn.1991) (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). While accepting the Minnesota court's construction, Justice Scalia, writing for the majority, rejected the notion that fighting words are exempt from constitutional scrutiny. The majority opinion...