Md. cross-burning law struck down Court of Appeals rules 1966 statute violates free speech

NAACP leaders voice outrage

August 28, 1993|By Norris P. West | Norris P. West,Staff Writer Staff writer Michael A. Fletcher contributed to this article.

Maryland's highest court yesterday struck down a state law banning racially motivated cross burnings, saying they are a form of free speech protected by the Constitution.

The law's backers sought to ban cross burnings through restrictions that skirted the free speech issue. Under the 27-year-old law, it was illegal to burn a cross on private property without getting the landowner's permission and notifying the local fire department.

But the seven-member Court of Appeals said the restrictions were designed specifically to outlaw cross burning, which it said was a protected form of free expression. It said Maryland did not have a compelling reason to violate that First Amendment right.

"I think that's outrageous," said the Rev. John L. Wright, president of the Maryland Conference of the National Association for the Advancement of Colored People. "That means somebody can come and burn a cross on my lawn and get away with it. I don't see that as a form of free speech. I see that as terrorism."

Clarence M. Mitchell III, a former legislator from Baltimore, called the court's decision "a serious mistake." Mr. Mitchell sponsored the measure while serving in the House of Delegates in 1966.

"Someone in the name of free speech can come onto your property and burn a cross?" he asked. "To me that does not fit in the definition of what is free speech. If you follow that to its logical conclusion, it would mean I can go onto your property and do anything else -- deface your property -- in the name of free speech."

Mr. Mitchell said lawmakers took "great care" in drafting the bill to avoid First Amendment conflicts. As it turned out, that was to no avail.

Now, he said, the best course of action would be for the General Assembly to enact a cross-burning law that met the court's requirements.

"I think that would be a priority in the next legislative session," he said.

The Rev. Benjamin F. Chavis Jr., executive director of the NAACP, said he questioned the "wisdom and appropriateness" of the ruling.

"I think it's ironic that on the eve of the 30th anniversary of the March on Washington that the highest court in the state of Maryland would make this cross-burning law unconstitutional," Mr. Chavis said. "This is an issue of intimidation. It's not an issue of free speech."

The state argued that the law was constitutional because it was enacted "to protect property owners from unwanted fires and to safeguard the community from fires generally."

But the appeals court said arson laws exist with much stiffer penalties than the cross-burning law.

The court noted that even without a cross-burning law, people who burn crosses on someone else's property can be charged with trespassing.

Gary E. Bair, chief of criminal appeals for the state attorney general's office, also expressed disappointment with the court's ruling. He said he will consult with Attorney General J. Joseph Curran Jr. to determine whether to ask the Supreme Court to review the case.

"It's an issue of great public importance," said Mr. Bair, adding that unless the U.S. Supreme Court overturns the decision, any future state restrictions "might leave a gap in the law that will permit unfettered cross burnings."

The practice is linked historically with the Ku Klux Klan, which would burn crosses on the properties of black families or others seen as being close to blacks as a way to intimidate them.

The statute imposed a maximum $5,000 fine and three years in prison.

Yesterday's ruling resulted from two cross-burning cases in Prince George's County. Brandon Forrest Sheldon of Upper Marlboro was charged with burning a cross on the property of a black family Oct. 17, 1991, and Thomas Cole of Clinton was charged with burning a cross on public property March 29, 1992.

Prince George's Circuit Judge James P. Salmon dismissed the cases, saying that Maryland's law violated the First Amendment, and the state appealed.

In reaching its conclusion, the Court of Appeals relied heavily upon a Supreme Court decision last year that struck down Minnesota's cross-burning statute and the high court's ruling that outlawed a Texas flag-burning law in 1989.

Chief Judge Robert C. Murphy, who wrote the opinion, said the state has an interest in promoting racial and religious tolerance. "But the Constitution does not allow the unnecessary trammeling of free expression even for the noblest of purposes," the opinion stated.

Judge Murphy said the law, "which merely inconveniences a tiny handful of individuals who would openly burn religious symbols, will not prove indispensable to the endeavor for justice."

Mr. Bair had contended that Maryland's law had a secondary purpose of preventing fires that could be caused by cross burnings.

The Court of Appeals dismissed that argument, saying the law clearly had meant to suppress speech because it didn't address such potential hazards as outdoor barbecues, bonfires and leaf burnings.

Still, Mr. Bair said yesterday, the fire-safety purpose distinguished Maryland's law from Minnesota's, which had no secondary purpose, and the Supreme Court might reach a different conclusion.

Nancy S. Forster, an assistant state public defender, who represented Mr. Sheldon and Mr. Cole, said she was pleased with that the court found the law unconstitutional although she said her clients' actions were personally repulsive.

Ms. Forster said the state easily can outlaw cross burnings without violating the Constitution.

"It seems to me that it would be very simple to pass a statute that prevents the burning of any object on a person's property," she said.

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