Did Maryland's hate crimes law survive after the U.S. Supreme Court struck down a similar cross-burning ordinance in R.A.V. v. City of St. Paul?

Plain-English summary

A state delegate and the chairman of the Governor's Racial, Religious and Ethnic Advisory Committee asked the Attorney General whether the U.S. Supreme Court's decision in R.A.V. v. City of St. Paul, which struck down a St. Paul ordinance criminalizing cross-burning and similar bias-motivated symbolic conduct, doomed two Maryland statutes: Article 27, §10A (the cross-burning statute) and Article 27, §470A (the broader hate crimes statute covering harassment, assault, and property damage motivated by race, religion, or national origin).

The Attorney General declined to opine on §10A because a trial court had already ruled it unconstitutional under R.A.V. in a pending Prince George's County case the State intended to appeal, and longstanding office policy barred opining on questions already in active litigation the office was handling. On §470A, the opinion concluded the statute remained constitutional. R.A.V. struck down the St. Paul ordinance because it singled out only certain viewpoints (bias-motivated symbols like burning crosses or swastikas) for punishment, triggering strict scrutiny as content-based speech regulation. Maryland's §470A, by contrast, punished conduct: defacing religious property, obstructing worship by force, and harassing, assaulting, or damaging the property of people or institutions because of race, color, religion, or national origin, without singling out any particular message or symbol. The opinion found this distinction consistent with post-R.A.V. rulings from Oregon and New York upholding similar conduct-based hate crime statutes, and more persuasive than the Wisconsin Supreme Court's contrary decision striking down Wisconsin's law, which the Maryland opinion sided against on the reasoning of that case's own dissenting judges.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the Supreme Court's R.A.V. v. City of St. Paul decision strike down Maryland's hate crimes law too?
No. The opinion concluded that R.A.V. did not require striking down Article 27, §470A, because unlike the St. Paul ordinance, Maryland's law was directed at conduct, harassment, assault, and property damage, rather than at any specific viewpoint or symbol.

What made Maryland's hate crimes statute different from the ordinance the Supreme Court struck down in R.A.V.?
According to the opinion, the St. Paul ordinance only reached speech that would arouse anger on the basis of race, color, creed, religion, or gender, effectively singling out racial slurs and similar expression for punishment. Article 27, §470A did not single out any type of speech; it applied to harassment, assault, and property destruction regardless of whether any particular message was involved.

Why didn't the Attorney General address whether Maryland's cross-burning statute, Article 27, §10A, was still constitutional?
The opinion explained that a Prince George's County trial court had already ruled §10A unconstitutional under R.A.V. in a pending case, the State intended to appeal that ruling and argue for the statute's constitutionality, and the office's longstanding policy was not to issue an opinion on a matter already in active litigation being handled by the office.

Could a defendant's past statements or writings be used as evidence under Maryland's hate crimes law?
The opinion cautioned that only speech actually connected to the offense itself should be used as evidence of a defendant's motivation under §470A, consistent with the office's earlier advice on the statute, and noted the harassment provision in particular would need careful application to avoid punishing protected belief or expression rather than conduct.

Background and statutory framework

R.A.V. v. City of St. Paul involved a St. Paul ordinance making it a misdemeanor to place a symbol, such as a burning cross or Nazi swastika, on public or private property when the actor knew it would arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender. The Minnesota Supreme Court had upheld the ordinance by construing it to reach only "fighting words" unprotected by the First Amendment. The U.S. Supreme Court reversed, holding that even within an unprotected category like fighting words, the government generally cannot single out a subset of that category for content-based regulation absent a recognized exception, such as regulating a subclass tied to the very reason the whole category is proscribable. Applying strict scrutiny, the Court found the St. Paul ordinance unconstitutional because content-neutral alternatives could have served the city's compelling interest in protecting groups from bias-motivated conduct.

Article 27, §470A prohibited (1) defacing, damaging, or destroying religious property; (2) obstructing a person's free exercise of religion by force or threat of force; (3) harassing or committing a crime upon, or damaging the property of, a person or institution because of race, color, religious beliefs, or national origin; and (4) defacing, damaging, or destroying the property of a person or institution for the same reasons. The opinion found paragraphs (1) and (2) clearly constitutional because they regulate conduct (property damage and threats of force) with no significant free-speech component. It found paragraphs (3) and (4), which raised the closer question, constitutional as well, tracing the office's own 1983 opinion questioning an earlier hate-crimes bill proposal, and the subsequent line of post-1983 cases from Oregon and New York upholding similar statutes as directed at conduct rather than speech. The opinion also considered, and rejected as less persuasive, the contrary reasoning of the Wisconsin Supreme Court's 1992 decision striking down Wisconsin's comparable statute, aligning instead with that decision's dissenting opinions. It concluded that because §470A, unlike the St. Paul ordinance, did not single out any specific message or symbol for punishment, R.A.V. did not require invalidating it, while flagging that the harassment provision in particular would need a limiting construction confined to unprotected "fighting words" if ever applied to speech alone.

Citations and references

Statutes:

• Article 27, §10A, Maryland's cross-burning/religious symbol statute (addressed only to the extent of explaining why the office declined to opine on it)
• Article 27, §470A, Maryland's hate crimes statute, subsections (b)(1) through (b)(4)
• 18 U.S.C. §242 and 42 U.S.C. §§1981 and 1982, cited by the U.S. Supreme Court in R.A.V. regarding conduct-based civil rights regulation
• 18 U.S.C. §241 and 42 U.S.C. §1985(3), federal laws protecting citizens in the exercise of their rights

Cases:

• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), U.S. Supreme Court
• In re Welfare of R.A.V., 464 N.W.2d 507 (Minn. 1991), Minnesota Supreme Court decision reversed by the U.S. Supreme Court
• United States v. Best, 476 F. Supp. 34 (D. Colo. 1979), federal district court
• Mozzochi v. Borden, 959 F.2d 1174, 1178 (2d Cir. 1992), federal appeals court
• Lanthrip v. State, 218 S.E.2d 771 (Ga. 1975), Georgia state court
• Thomas v. Commonwealth, 574 S.W.2d 903 (Ky. 1978), Kentucky state court
• People v. Mirmirani, 171 Cal. Rptr. 562 (Cal. App. 1981), California state appellate court
• Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970), federal district court
• United States v. Guest, 383 U.S. 745 (1966), U.S. Supreme Court
• Griffin v. Breckinridge, 403 U.S. 88 (1971), U.S. Supreme Court
• Central Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894 (E.D. Mo. 1969), federal district court
• State v. Vogenthaler, 548 P.2d 112 (N.M. 1976), New Mexico state court
• Riley v. District of Columbia, 283 A.2d 819 (D.C. 1971), D.C. Court of Appeals
• State v. Hendrix, 813 P.2d 1115 (Or. App. 1991), aff'd, 829 P.2d 1059 (Or. 1992), Oregon Court of Appeals, affirmed by the Oregon Supreme Court
• People v. Grupe, 532 N.Y.S.2d 815 (Crim. Ct. N.Y. City 1988), New York criminal court
• State v. Beebe, 680 P.2d 11 (Or. App.), review denied, 683 P.2d 1372 (Or. 1984), Oregon Court of Appeals
• State v. Mitchell, 169 Wis. 2d 153, 485 N.W.2d 807 (1992), Wisconsin Supreme Court
• Oregon v. Plowman, 838 P.2d 558 (1992), Oregon state court
• United States v. Wilson, 796 F.2d 55 (4th Cir. 1976), federal appeals court
• CISPES v. FBI, 770 F.2d 468 (5th Cir. 1985), federal appeals court
• UWM Post v. Board of Regents of U. of Wis., 774 F. Supp. 1163 (E.D. Wis. 1991), federal district court

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 23 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

CONSTITUTIONAL LAW

Freedom of Speech - Hate Crimes Law is Constitutional

                         December 3, 1992

The Honorable Samuel I. Rosenberg
House of Delegates

Mr. Michael S. Glushakow
Chairman, Governor's Racial, Religious
and Ethnic Advisory Committee

   You have each asked for our opinion concerning the effect of the

decision of the United States Supreme Court in R.A.V. v. City of St. Paul,
505 U.S. 377 (1992), on the validity of Article 27, §10A of the Maryland
Code ("Burning cross or other religious symbol") and Article 27, §470A
("Crimes against religious property or persons or property because of race,
religious beliefs, etc").

   With respect to Article 27, §10A, the cross-burning statute, we note

that the issue of the statute's constitutionality will likely be decided by the
courts in the near future. In a very recent case arising from Prince
George's County, the trial court dismissed certain charges on the basis of
the court's view that, under R.A.V., Article 27, §10A is unconstitutional.
The State anticipates taking an appeal, and this office will argue for the
constitutionality of the statute. Under these circumstances, our
longstanding office policy precludes our issuing an opinion on the matter.

  With respect to Article 27, §470A, the hate crimes statute, it is our

opinion that the statute is constitutional.

                                  I

                       The R.A.V. Decision

  R.A.V. involved a challenge to a St. Paul ordinance that provided as

follows:

          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.

The Minnesota Supreme Court upheld the statute against an overbreadth
challenge. The Minnesota court concluded that the modifying phrase
"arouses anger, alarm or resentment in others" limited the reach of the
ordinance to "fighting words" and that fighting words were not protected
by the First Amendment. In re Welfare of R.A.V., 464 N.W.2d 507 (Minn.
1991).

   The Supreme Court reversed. Justice Scalia, writing for the

majority, did not reach the overbreadth issue but instead held that, while
fighting words may be proscribed altogether, they are not completely
without First Amendment protection. Content-based regulation of even
fighting words must meet strict scrutiny, the Court held, unless the
regulation falls within certain exceptions.

  The first exception mentioned by the Court is for content-based

discrimination justified by the very reason that the entire class of fighting
words may be proscribed. Thus, for example, the federal government may
criminalize threats of violence directed against the President, because "the
reasons why threats of violence are outside the First Amendment
(protecting individuals from the fear of violence, from the disruption that
fear engenders, and from the possibility that the threatened violence will
occur) have special force when applied to the person of the President."
R.A.V., 505 U.S. at 388.

   Another exception is where a subclass of prescribable speech is

associated with particular secondary effects because of its content or where
a particular subcategory of speech is "swept up incidentally within the
reach of a statute directed at conduct rather than speech." For example,
the Court noted that sexually derogatory "fighting words" may produce a
violation of Title VII's prohibition against sexual discrimination in
employment. Id.

   The majority recognized that other exceptions might exist but found

that none applied to the St. Paul ordinance. Therefore, they applied strict
scrutiny and found the statute to be invalid. While recognizing that a state
has a compelling interest in ensuring the basic human rights of members of
groups that have historically been subjected to discrimination, the majority
held that the ordinance was not necessary to the accomplishment of that
interest, because content-neutral alternatives were available.

  The remaining four justices agreed that the ordinance was

unconstitutional but disagreed with the majority's analysis. They would
have found the ordinance overbroad instead. No justice would have
upheld the ordinance.

                                   II

                  Maryland's Hate Crimes Law

  Article 27, §470A provides, in relevant part, as follows:

           (b) A person may not:

              (1) Deface, damage, or destroy or attempt to
       deface, damage, or destroy religious real or personal
       property that is owned, leased, or used by a religious
       entity;

             (2) Obstruct, or attempt to obstruct by force or
       threat of force, a person in the free exercise of that
       person's religious beliefs;

           (3) Harass or commit a crime upon a person or
       damage the real or personal property of:

           (i) A person because of that person's race, color,
      religious beliefs, or national origin; or

          (ii) An institution:

              1. Because of the institution's contacts or
      association with a person or group of a particular race,
      color, religious belief, or national origin; or

              2. Where there is evidence that exhibits
      animosity on the part of the person committing the act
      against a person or group because of that person's or
      group's race, color, religious beliefs, or national origin;
      or

           (4) Deface, damage, or destroy or attempt to
      deface, damage, or destroy the real or personal
      property of:

          (i) A person because of that person's race, color,
      religious beliefs, or national origin; or

          (ii) An institution:

              1. Because of the institution's contacts or
      association with a person or group of a particular race,
      color, religious belief, or national origin; or

           2. Where there is evidence that exhibits animosity
      on the part of the person committing the act against a
      person or group because of that person's or group's
      race, color, religious beliefs, or national origin.

   Paragraph (1), which prohibits damage to religious property, does

not raise significant freedom of speech concerns, because it prohibits only
conduct, regardless of any communicative intent. The First Amendment
does not protect a right of any person to damage or destroy property.
United States v. Best, 476 F. Supp. 34 (D. Colo. 1979).

  Paragraph (2), which prohibits interference with a person's free

exercise of religion by force or threat of force, is also clearly constitutional.
Statutes punishing threats of physical violence do not violate the First
Amendment. Mozzochi v. Borden, 959 F.2d 1174, 1178 (2d Cir. 1992);
Lanthrip v. State, 218 S.E.2d 771 (Ga. 1975); Thomas v. Commonwealth,
574 S.W.2d 903 (Ky. 1978); People v. Mirmirani, 171 Cal. Rptr. 562
(Cal. App. 1981); Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970).
Similar federal laws protecting citizens in the exercise of their rights have
been upheld. United States v. Guest, 383 U.S. 745 (1966) (18 U.S.C.
§241); Griffin v. Breckinridge, 403 U.S. 88 (1971) (42 U.S.C. §1985(3)).

   The remainder of §470A raises more significant constitutional issues.

These issues were first discussed by this office in a 1983 opinion
concerning a proposed hate crimes statute that would have created
enhanced penalties for certain offenses if committed "by reason of the race,
religion or national origin of another person, or group of persons." 68
Opinions of the Attorney General 136 (1983). At that time, Attorney
General Sachs questioned whether an act that penalized one offender more
heavily than another solely on the basis of motivation was not an act
punishing beliefs or expression that would violate the First Amendment.
However, in the absence of any case law on point, and in consideration of
federal anti-discrimination laws that prohibited acts taken with a specific
discriminatory motivation, the Attorney General determined he "would not
disapprove of the bill."

  Subsequent to the issuance of that opinion, hate crime statutes were

upheld by courts in Oregon and New York. State v. Hendrix, 813 P.2d
1115 (Or. App. 1991), aff'd, 829 P.2d 1059 (Or. 1992); People v. Grupe,
532 N.Y.S.2d 815 (Crim. Ct. N.Y. City 1988); State v. Beebe, 680 P.2d
11 (Or. App.), review denied, 683 P.2d 1372 (Or. 1984). Each of these
cases involved a statute that barred physical violence against a person
based on the race or other protected status of that person. And in each
case the statute was found not to violate the First Amendment because the
statute was directed at conduct, not at speech. The courts noted that the
statutes could be violated without uttering a word, and that bigoted speech
and publication was not prohibited. See, e.g., Grupe, 532 N.Y.S.2d at

818. In addition, the court in Beebe noted that many crimes provided for
     harsher penalties based on the identity of the victim or the intent of the
     defendant, and that the use of speech to prove motive does not, in itself,
     violate the First Amendment.

     However, in the wake of the R.A.V. decision, the Supreme Court of
     Wisconsin struck down Wisconsin's hate crime statute. The Wisconsin
     statute, like the proposed statute considered in this office's earlier opinion,
     provided enhanced penalties for certain criminal offenses when the
     defendant:

       [I]ntentionally selects the person against whom the
       crime ... is committed or selects the property which is
       damaged or otherwise affected by the crime ... because
       of the race, religion, color, disability, sexual
       orientation, national origin or ancestry of that person
       or the owner or occupant of that property.
     

The Wisconsin court found that the hate crimes statute "punishes bigoted
thought" and was "specifically designed to punish personal prejudice,"
thereby violating the First Amendment. State v. Mitchell, 169 Wis. 2d
153, 485 N.W.2d 807 (1992). The court also found that the statute was
overbroad and would chill protected speech because:

           In addition to any words that a person may speak
       during, just prior to, or in association with the
       commission of one of the underlying offenses, all of his
       or her remarks upon earlier occasions, any books ever
       read, speakers ever listened to, or associations ever
       held could be introduced as evidence that he or she
       held racist views and was acting upon them at the time
       of the offense.

Mitchell, 485 N.W.2d at 816 (quoting Gellman, "Sticks and Stones Can
Put You in Jail, But Can Words Increase Your Sentence?" Constitutional
and Policy Dilemmas of Ethnic Intimidation Laws, 39 U.C.L.A. L. Rev.
333 (1991)). This ruling is being appealed to the Supreme Court.

   Two dissenting opinions were filed. In the first, Judge Abramson

argued that the statute should be given a narrow interpretation, and, as so
interpreted, should be upheld. As interpreted by Judge Abramson, the bill
would not permit evidence that a defendant has bigoted beliefs or has made
bigoted statements unrelated to the particular crime. According to the
dissent, the statute, so construed, would be a prohibition on conduct, not
on belief or expression, and would do "nothing more than assign
consequences to invidiously discriminatory acts." The enhanced
punishment, then, would simply reflect the crime's "enhanced negative
consequences on society." 485 N.W.2d at 819.

  The second dissenter, Judge Bablitch, would have held that the law

was an anti-discrimination law that could not be distinguished
constitutionally from other anti-discrimination laws, such as Title VII,
which are undeniably valid. In his view:

         The statute does not impede or punish the right of
         persons to have bigoted thoughts or to express
         themselves in a bigoted fashion or otherwise, regarding
         race, religion, or other status of a person. It does
         attempt to limit the effects of bigotry. What the statute
         does punish is acting upon those thoughts.

485 N.W.2d at 820.

   In our view, the dissenting opinions in Mitchell more accurately

characterize the key elements of Maryland's hate crimes statute. Article
27, §470A(b)(3) prohibits harassment, the commission of crimes, and
damaging property on the basis of race, color, religious beliefs, or national
origin. Paragraph (4) prohibits defacing, damaging, or destroying property
or attempting to do so because of these prohibited factors.

   While we continue to have concerns about potentially

unconstitutional applications of these provisions, to the extent that they are
directed at commission of crimes or damage to property, they are
constitutionally defensible because, as the courts in Oregon and New York
held, these provisions are directed at conduct, not at speech. And we feel
very strongly that violent conduct and destruction of property should never
be given protection as expressive speech.

   R.A.V. does not require a different result. In R.A.V., the statute

prohibited speech that would cause a reaction based on race, color, creed,
religion, or gender, as opposed to other types of speech. Thus, the statute
effectively reached only racial slurs and similar speech. Under the
Maryland statute, no specific type of speech is singled out, and none is
required in order to violate the statute. Accord, Oregon v. Plowman, 838
P.2d 558 (1992). Thus, while we would emphasize our previous advice that
only speech actually connected with the offense in question should be used
as evidence of motivation, we feel that this portion of the statute is
defensible.

                                III

                          Conclusion

 In summary, it is our opinion that Article 27, §470A is constitutional.


                                     J. Joseph Curran, Jr.
                                     Attorney General

                                     Kathryn M. Rowe
                                     Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

1
The Court also cited 18 U.S.C. §242 and 42 U.S.C. §§1981 and 1982,
and concluded: "Where the government does not target conduct on the basis of
its expressive content, acts are not shielded from regulation merely because they
express a discriminatory idea or philosophy." 505 U.S. at 388-91.

2
While provisions such as §470A(b)(1) do implicate Establishment
Clause concerns, they are generally recognized as serving the legitimate state
purpose of ensuring religious freedom and they have been upheld. Central
Presbyterian Church v. Black Liberation Front, 303 F. Supp. 894 (E.D. Mo.
1969); State v. Vogenthaler, 548 P.2d 112 (N.M. 1976). See generally
Protecting Religious Exercise: The First Amendment and Legislative Responses to
Religious Vandalism, 97 Harv. L. Rev. 547 (1983). See also Riley v. District of
Columbia, 283 A.2d 819 (D.C. 1971) (upholding law prohibiting disturbance of
religious congregation).

3
The Court in Beebe also held that the statute did not violate the Equal
Protection Clause, because anyone could be the victim of bigotry and all persons
were protected equally.

4
We have given similar advice concerning the application of Article 27,
§470A. See Bill Review Letter on House Bill 95 and Senate Bill 352 of 1992
(May 19, 1992).

5
As explained by the dissent:
[O]ur law recognizes the harmful effects of invidious
classification and discrimination. We acknowledge that
when individuals are victimized because of their status,
such as race or religion, the resulting harm is greater than
the harm that would have been caused by the injurious
conduct alone. In addition to the injury inflicted, the victim
may suffer feelings of fear, shame, isolation and inability
to enjoy the rights and opportunities that should be available
to all persons. Furthermore, all members of the group to
which the victim belongs may suffer when the individual is
victimized.
485 N.W.2d at 818.

6
The portion of §470A(b)(3) dealing with harassment requires special
care in its construction and application. Harassment is conduct that is designed
and intended to badger, disturb, or pester. United States v. Wilson, 796 F.2d 55
(4th Cir. 1976). See also CISPES v. FBI, 770 F.2d 468 (5th Cir. 1985). The
activity that would be encompassed by "harass[ment]" would often include
elements of speech. If speech alone, as distinct from a pattern of behavior of
which speech was but a part, were the gravamen of a charge of harassment, this
portion of the statute might be held to be unconstitutionally overbroad. See UWM
Post v. Board of Regents of U. of Wis., 774 F. Supp. 1163 (E.D. Wis. 1991). It
is likely, however, that the Maryland courts, asked to construe the harassment
portion of §470A(b)(3) in a case involving speech alone, would limit the reach of
the provision to the category of fighting words, akin to the limiting construction
given the St. Paul ordinance by the Minnesota Supreme Court in R.A.V. As so
construed, in our view the harassment aspect of the statute would be
constitutional, for the reasons discussed in the text.