The Maryland Court of Special Appeals affirmed the circuit court’s denial of a motion to dismiss criminal charges on First Amendment grounds

The alleged crimes

At approximately 11:30 p.m. on May 23, 2018, appellant and three other individuals went to Glenelg High School and spray-painted graffiti on the school building, sidewalks, and trash receptacles. The graffiti included swastikas, anti-LGBTQ phrases, and other offensive writings, including “KKK,” “n****rs,” and “fuck jews.” In addition, there was graffiti on a sidewalk that stated: “Burton is a n****r,” referring to the school principal, who is African-American. The suspects subsequently were identified as four students attending the school, including 18-year-old appellant. The students ultimately confessed to the incident.

On July 12, 2018, appellant was indicted on seven criminal charges: two counts of defacing real and personal property where there is evidence exhibiting animosity against groups because of their race, color, religious beliefs, or sexual orientation in violation of CR § 10-305(2); one count of conspiracy to commit a violation of CR § 10-305(2); one count of malicious destruction of property over $1,000; one count of conspiracy to commit malicious destruction of property over $1,000; one count of school trespass and damage; and one count of conspiracy to commit school trespass and damage.

The motion to dismiss addressed the CR section 10-395(2) charge

Appellant argues on appeal that the trial court erred in denying his motion to dismiss, asserting that CR § 10-305 is unconstitutional because it “penalizes a viewpoint,” and therefore, it violates the First Amendment right to freedom of speech. He contends that “nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses.” 

The State contends that the circuit court properly denied appellant’s motion to dismiss because CR § 10-305 is constitutional. It asserts that, pursuant to “Supreme Court precedent, states may not punish pure expression, but they may [punish] criminal conduct that is motivated by bias.” It argues that CR § 10-305 does not violate the First Amendment because it targets conduct, not speech.

Disposition

Appellant may have had a First Amendment right to spray paint on his own property the offensive words and symbols used here. Once he combined that action with a criminal act, however, in this case defacing property of another, his criminal activity was not protected by the First Amendment. The circuit court properly denied appellant’s motion to dismiss.

WBAL 11 news reported on pleas in the cases, that preserved the appeal brought here. (Mike Frisch)