WASHINGTON (CN) — Racial slurs, swastikas and other offensive language spray-painted on a Maryland high school campus are not shielded from hate-crime prosecution under the First Amendment, a state appeals court ruled.
The case centers on what has been described as a prank by four former seniors at Glenelg High School — Seth Taylor, Tyler Curtiss, Matthew Lipp and Joshua Shaffer. The students confessed and were charged with several crimes, including two counts of defacing property with evidence of animosity based on discrimination.
They were sentenced to several years of supervised probation and ordered to spend a certain number of weekends in jail, which varied among the men. They were also ordered to perform community service.
Lipp appealed his conviction to Maryland’s Court of Special Appeals, contending the state’s law regarding bias-related crimes violates the First Amendment because it regulates protected speech. State prosecutors, meanwhile, argued the criminal code targeted conduct, not speech, and only adds a sentencing enhancement for the crime of defacing property.
Judge Kathryn Graeff’s 19-page opinion issued Thursday focuses largely on precedent for hate-crime prosecutions, including a case brought by Minnesota in the 1990s against a group of teenagers charged with a hate crime after burning a cross on the yard of an African American family’s home.
Graeff found that the language of the Maryland law at issue “makes clear that a conviction may not be based solely on speech.”
“Rather, the statute regulates harmful conduct, not the content of the speech,” the judge wrote. “And the harmful conduct is proscribed in other criminal statutes.”
Citing the U.S. Supreme Court’s 1993 decision in a case involving a group of African American teens who attacked a white boy because of his race, Graeff wrote that Lipp’s speech might have been protected if not coupled with a criminal act.
“Appellant may have had a First Amendment right to spray paint on his own property the offensive words and symbols used here,” Graeff wrote. “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.”
Graeff was joined on the three-judge panel by Judges Douglas Nazarian and Glenn Harrell Jr.
Charles Chavis, an assistant professor of conflict resolution and history at George Mason University and board member of the Maryland Lynching Memorial Project, wrote in an email Friday that Lipp’s case involves “a performative act of dehumanization.”
He said the ruling will hopefully deter other students from expressing hateful remarks but said the case represents a larger issue in America’s education system, where schools have failed to develop a curriculum that educates its students about white supremacy.
“Whether done jokingly or not, it trivializes the experiences of the marginalized groups it targets, experiences that cannot be applied and removed when convenient,” Chavis said of the racist graffiti.
Lipp’s attorney, Brian Thompson with Silverman, Thompson, Slutkin and White, did not immediately respond Friday to a request for comment. Neither did Deborah Saltz, an attorney who represented Taylor at trial.