Fiery crosses and hate in Maryland

June 25, 1992

The Supreme Court ruled unconstitutional a St. Paul, Minn., ordinance forbidding cross-burning. Does this mean Maryland's two state laws forbidding such activity are also invalid? Probably not.

What the court said was that governments may not forbid speech -- real or symbolic -- on the basis of its content. The First Amendment to the Constitution protects free speech. The St. Paul ordinance outlawed acts which "arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The Supreme Court said that because just race, color, etc., were singled out, leaving it legal to cause alarm, etc., among other groups, this was a clear attempt to control a certain type of speech -- certain ideas.

Maryland has approached the problem of hate speech two ways. Both are quite different from the St. Paul approach. One is a law requiring anyone who wants to burn a cross to get permission from the property owner where the event is to take place and to notify the fire department in advance. That allows any Ku Klux Klan types who want to make a political statement to rally and employ their traditional symbol. No matter what one thinks of the Klan, they have such a right subject to that sensible requirement.

But what about the Klan rally right next door to a threatened family? Obnoxious as it may be, such a peaceful rally can hardly be prevented in a nation committed to free speech. There are laws dealing with threats, harassment, etc., that must be observed, however. It is here that Maryland's second anti-hate law operates. A so-called "ethnic intimidation act" increases the penalties for, among other things, harassment of anyone "because of that person's race, color, religious beliefs or national origin."

We believe that Maryland citizens should be protected against hate crimes and that at least some hate crimes, given their potential for damaging society as well as individuals, deserve special attention and enhanced punishment when and if such a motive can be proven.

But that limited list of victims in the Maryland law may be a flaw in the same sense that the St. Paul ordinance was flawed. Some future defendants might argue that a law penalizing speeches that amount to harassment of a black family more severely than speeches harassing a gay household, for example, treats the content of speeches differently and therefore is unconstitutional. The immediate reaction in the state attorney general's office is that the Maryland law is more like some federal civil rights statutes, which have been upheld in the past, than the St. Paul ordinance, but with this Supreme Court, no one can be sure.

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