Opposition Brief — T. B. D. v. Florida

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No. 95-618

IN THE

Supreme Court of the Anited States

October Term, 1995

T.B.D., a child,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari to the

Florida Supreme Court

BRIEF IN OPPOSITION OF RESPONDENT

STATE OF FLORIDA

ROBERT A. BUTTERWORTH

Attorney General

JAMES W. ROGERS

Bureau Chief — Criminal Appeals

Counsel of Record

SONYA ROEBUCK HORBELT

Assistant Attorney General

Office of the Attorney General

PL-01, The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR RESPONDENT

QUESTION PRESENTED

Petitioner presents the following question (Pet. I):

WHETHER THE DECISION OF THE

FLORIDA SUPREME COURT UPHOLD-

ING A STATUTE, § 876.18, FLORIDA

STATUTES, PROHIBITING CROSS BURN-

INGS IS DIRECTLY CONTRARY TO THIS

COURT’S DECISION IN R.A.V. V. CITY OF

ST. PAUL, __ U.S. __, 112 S. CT. 2538, 120

L. ED. 2D 305 (1992), AND OTHER STATE

COURT DECISIONS WHICH HAVE IN-

VALIDATED CROSS BURNING LAWS; AND

VIOLATES THE FIRST AMENDMENT TO

THE UNITED STATES CONSTITUTION

BECAUSE IT IS ACONTENT-BASED REGU-

LATION WHICH PUNISHES ONLY ONE

TYPE OF EXPRESSIVE CONDUCT, IN-

STEAD OF BEING ANEUTRAL LAW WHICH

PUNISHES ALL OTHER SIMILAR TYPES

OF EXPRESSIVE CONDUCT WITH DIF-

FERENT POLITICAL MESSAGES?

TABLE OF CONTENTS

QUESTION PRESENTED ................

TABIGS OF CONTEOUEO «sess cscs ensntues

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED .............

THE FLORIDA SUPREME COURT'S DE-

CISION DOES NOT CONFLICT WITH

THIS COURT’S DECISION IN R.A.V. V.

CITY OF ST. PAUL

CONCLUSION . ss « ¢ 4 peels ee ee

——

FO naa EY GAEDE

TABLE OF AUTHORITIES

Cases Pages

Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, Inc., 391 U.S. 308, 88 S. Ct.

1601, 20 L. Ed. 2d 603 (1968) .............,

Chaplinsky v. New Hampshire,

315 U.S. 568, 62 S. Ct. 766(1942)..........

Cornelius v. NAACP Legal Defense and Educational

Fund, Inc., 473 U.S. 788, 105 S. Ct. 3439,

ee ee

Lehman v. City of Shaker Heights, 418 U.S. 298, 94

S. Ct. 2714, 41 L. Ed. 2d 770 (1974). ........

Masson v. Slaton, 320 F. Supp. 669 (N.D. Ga. 1970). .

NAACP v. Claiborne Hardware Co., 458 U.S. 886,

102 S. Ct. 3409, 73 L. Ed. 2d 1215 (1982). .....

Perry Education Association v. Perry Local Educators

Assn., 460 U.S. 37, 103 S. Ct. 948,

ce Sg

R.A.V. v. City of St. Paul, __ U.S. __, 112 S. Ct. 2538,

Roberts v. United States Jaycees,

468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462

(1984) (citations omitted; emphasis added)... . .

State v. Ramsey, 30 S.E.2d 511 (S.C.1993) .......

State v. Sheldon, 629 A.2d 753 (Md. Ct. App. 1993) . . .

State v. T-B.D., 638 So. 2d 165 (Fla. lst DCA 1994) .. .

State v. T-B.D., 656 So. 2d 479 (Fla. 1995)... 2... ..

United States v. Lee,

935 F.2d 952 (8th Cir. 1991) (citations omitted)

United States v. Orozco-Santillan,

903 F.2d 1262 (9th Cir. 1990) (emphasis added)

United States v. Stewart, 9 Fla. L. Weekly Fed. C553,

C557 (11th Cir. October 3,1995) ..........

Watts v. United S:ates, 394 U.S. 705, 89 S. Ct. 1399,

22 L. Ed. 2d 664(1969) ...............

ill

In re Welfare of R.A.V.,

464 N.W.2d 507 (Minn. 1991), revd, 505 U.S. __,

112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992) ...... 4

Wisconsin v. Mitchell, 508 U.S. _, 113 S. Ct. _,

> ome & Foy | rae re ee 6

Statutes

3 Be Of ft Br ear er re ee eee 2

Se reas Oe Dk ke: re ak ores ee Bae eee 1

No. 95-618

IN THE

Supreme Court of the Anited States

October Term, 1995

T.B.D., a child,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

On Petition for Writ of Certiorari to the

Florida Supreme Court

BRIEF IN OPPOSITION OF RESPONDENT

STATE OF FLORIDA

OPINIONS BELOW

The decision of the Supreme Court of Florida is reported

in State v. T.B.D., 656 So. 2d 479 (Fla. 1995), (Pet.App. A).

The decision of the District Court of Appeal of Florida, First

District, is reported in State v. T.B.D., 638 So. 2d 165 (Fla.

lst DCA 1994), (Pet.App. B).

JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The statutes and constitutional provisions involved are

the First Amendment to the United States Constitution,

which provides, in part:

Congress shall make no law .. . abridging the

freedom of speech,

The First Amendment is applicable to the States through

the Fourteenth Amendment.

Section 876.18, Florida Statutes (1993), which prohibits

the unauthorized burning of a cross on another person’s

private property, provides as follows:

Placing burning or flaming cross on property

of another. — It shall be unlawful for any

person or persons to place or cause to be

placed on the property of another in the state

a burning or flaming cross or any manner of

exhibit in which a burning or flaming cross,

real or simulated, is a whole or part without

first obtaining written permission of the owner

or occupier of the premises to so do. Any

person who violates this section commits a

misdemeanor of the first degree, punishable

as provided in s. 775.082 or s. 775.083.

STATEMENT OF THE CASE

T.B_D. was charged with violating § 876.18, Florida Statutes

(1993), by erecting a burning cross on the property of Atef

Abdul-Nour. The trial court granted a motion to dismiss,

holding that § 876.18 was unconstitutional under the First

Amendment. The State appealed to the District Court of

Appeal, First District. On June 14, 1994, the First District

issued an opinion affirming the trial court’s dismissal and

holding that § 876.18 is unconstitutional under the First

Amendment. State v. T.B.D., 638 So. 2d 165 (Fla. lst DCA

1994). The State appealed to the Supreme Court of Florida.

On June 15, 1995, the Florida Supreme Court issued an

opinion reversing the First District’s decision and finding

that § 876.18, Fla. Stat. does not violate the First Amend-

ment as interpreted by this court in R.A.V. v. City of St. Paul,

__ US. _, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992).

STATEMENT OF THE FACTS

The constitutional challenge to § 876.18, was an attack on

the facial validity of the statute. Consequently, the only facts

included in the record in this case are that the State of

Florida charged T.B.D. with violating § 876.18 by placing a

flaming cross on the property of Atef Abdul-Nour in Jacksonville,

Florida, on August 2, 1993, without written permission.

REASONS FOR DENYING THE WRIT

THE FLORIDA SUPREME COURT’S DECISION

DOES NOT CONFLICT WITH THIS COURT’S

DECISION IN R.A.V. V. CITY OF ST. PAUL

T.B.D.’s challenge to the constitutionality of § 876.18,

Florida Statutes is based on his assertion that the Florida

Supreme Court’s decision conflicts with this Court’s decision

in R.A.V. v. City of St. Paul, __ U.S. __, 112 S. Ct. 2538, 120

L. Ed. 2d 305 (1992). In R.A.V,, this Court found unconsti-

tutional a statute which prohibited expressive conduct, on

both public and private property, which was offensive to

others based on race, color, creed, religion, or gender. Al-

though the Minnesota Supreme Court construed the statute

as prohibiting only “fighting words” based on those catego-

ries, In re Welfare of R.A.V., 464 N. W. 2d 507, 510-511 (Minn.

1991), rev'd, 505 U.S. __, 112 S. Ct. 2538, 120 L. Ed. 2d 305

(1992), this Court held that such a construction could not

save the statute from constitutional attack because it was a

content-based restriction of speech which was not necessary

to serve a compelling state interest. R.A.V., 120 L. Ed. 2d at

325-26. R.A.V. did not hold that cross burning is always

expressive conduct. Rather, under some circumstances, such

conduct is expressive and cannot be prohibited under a

statute aimed at particular categories of “fighting words.”

The statute in the instant case is distinguishable from the

statute in R.A.V. because it is restricted to cross burning on

the private property of another without permission, is aimed

at conduct rather than expression, and serves a compelling

state interest. The private property of other persons does

not constitute a First Amendment forum. This Court has

identified three types of fora which may implicate First

Amendment concerns: the traditional public forum, the

public forum created by government designation, and the

nonpublic forum. Cornelius v. NAACP Legal Defense and

Educational Fund, Inc., 473 U.S. 788, 105 S. Ct. 3439, 87 L.

Ed. 2d 567 (1985); Perry Education Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d

794 (1983); Lehman v. City of Shaker Heights, 418 U.S. 298,

94 S. Ct. 2714, 41 L. Ed. 2d 770 (1974)(nonpublic forum

actually owned by government). The public forum would

include private property which is open to the public. Amal-

gamated Food Employees Union Local 590 v. Logan Valley

Plaza, Inc., 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603

(1968). However, the private property of another person

which is not open to the public does not constitute a First

Amendment forum. Thus, there is no right to expression on

the private property of another person without that person’s

consent. Therefore, § 876.18, Florida Statutes does not

implicate the First Amendment and the decision of the

Florida Supreme Court does not conflict with this Court’s

decision in R.A. V.

Even if the First Amendment does extend to private prop-

erty, the Florida Supreme Court’s decision does not conflict

with R.A.V. because cross burning as prohibited by § 875.18

does not constitute expressive conduct. Although cross burn-

ing can often constitute expressive conduct, such is not the

case when the cross burning takes place on the private

property of another person without that person’s permis-

sion. While cross burning has long been recognized as a

symbol of the Ku Klux Klan and is often understood as

expressing a view of racial superiority or hatred of minori-

ties, when such activity takes place on another person’s

property without permission, the conduct does more than

merely express one’s racial beliefs. It conveys an unlawful

threat of physical violence, as well as exhibits a clear viola-

tion of the law of trespass. Because a threat of physical

violence constitutes conduct, not an “expression of ideas,” it

can properly be prohibited by the State. See, United States

uv. Lee, 935 F. 2d 952, 955-56 (8th Cir. 1991)(“Intimidation by

threats of physical violence is not protected by the first

amendment.”\citations omitted); Watts v. United States,

394 U.S. 705, 707, 89 S. Ct. 1399, 1401, 22 L. Ed. 2d 664

(1969\“What is a threat must be distinguished from what

is constitutionally protected speech.”); United States v. Orozco-

Santillan, 903 F. 2d 1262, 1265-66 (9th Cir. 1990)(“A ‘true’

threat, where a reasonable person will believe he will be

subjected to physical violence upon his person, is unpro-

tected by the first amendment.”emphasis added); Masson

v. Slaton, 320 F. Supp. 669, 672 (N.D. Ga. 1970)“The right

to free speech . . . entitles an individual to advocate certain

ideas regardless of their popularity, but does not extend to

the threatening of terror, inciting of riots, or placing an-

other’s life or property in danger.”). Moreover, threats are

violent conduct and entitled to no First Amendment protec-

tion. See, NAACP v. Claiborne Hardware Co., 458 U.S. 886,

933, 102 S. Ct. 3409, 73 L. Ed. 2d 1215, 1249 (1982)(“Violent

conduct is beyond the pale of constitutional protection.”);

Roberts v. United States Jaycees, 468 U.S. 609, 628, 104 S.

Ct. 3244, 82 L. Ed. 2d 462, 478 (1984)(“[V]iolence or other

types of potentially expressive activities that produce spe-

cial harms distinct from their communicative impact...are

entitled to no constitutional protection.”)(citations omitted;

emphasis added).

Section 876.18 differs from the statute at issue in R.A.V.

because § 876.18 prohibits cross burning only in circum-

stances where such activity is clearly violent and threaten-

ing conduct rather than an expression of ideas. The statute

at issue in R.A.V. prohibited activities such as cross burning

when the activity constituted “fighting words,” i.e. words

likely to result in violence by the person to whom they are

directed. Chaplinsky v. New Hampshire, 315 U.S. 568, 573,

62 S. Ct. 766, 770 (1942). Thus, the statute in R.A. V. focused

on the victim’s reaction to the expression of offensive ideas,

rather than the actor’s threatening conduct. In contrast, § 876.18

focuses on the conduct of the actor and does not prohibit

cross burning when such activity is used to express a mes-

sage, no matter how offensive that message may be, nor how

observers may react to the message.

The fact that § 876.18 prohibits only a specified racially

motivated threat does not render the statute unconstitu-

tional. It is permissible to regulate crimes motivated by

racial prejudice. See, Wisconsin v. Mitchell, 508 U.S. __, 113

S. Ct. __, 124 L. Ed. 2d 436 (1993). Section 876.18, Florida

Statutes, prohibits the racially motivated actions of tres-

passing on another person’s property without permission to

engage in the threatening conduct of burning a cross. Burn-

ing a cross on someone else’s property without permission

is a crime motivated by racial prejudice.

Section 876.18, Florida Statutes, prohibiting entry onto

another’s property for purposes of engaging in a particular

racially motivated act without the property owner’s permis-

sion, is simply a form of trespass statute aimed at protecting

the rights of property owners. Thus, § 876.18 is aimed at

non-expressive conduct and does not violate the First Amend-

ment. The action of entering the private property of another

person and burning a cross is clearly conduct motivated by

racial prejudice and can be prohibited under Mitchell.

Section 876.18, Florida Statutes, is also valid as a statute

designed to protect the property and housing rights of citi-

zens of the State. Statutes which prohibit intimidation or

interference with the housing rights of others based on their

race are constitutionally permissible because they punish

particular racially motivated actions, not the beliefs of the

actor. See, United States v. Stewart, 9 Fla. L. Weekly Fed.

C553, C557 (11th Cir. October 3, 1995). Unauthorized burn-

ing of a cross in another person’s yard certainly constitutes

such intimidation or interference. Stewart. Section 876.18,

Florida Statutes, protects the housing rights of citizens of

the State. Chapter 876, Florida Statutes (1993), is entitled

“Criminal Anarchy, Treason, and Other Crimes Against

Public Order,” and is clearly aimed at protecting Florida

citizens against anarchy, treason, and terrorism. See, State

v. T.B.D., 656 So. 2d 479, 480 (Fla. 1995). “The statute is a

legitimate legislative attempt to protect Floridians of every

stripe from a particularly reprehensible form of tyranny.”

T.B.D., 656 So. 2d at 482.

For the same reasons that the Florida Supreme Court’s

decision does not conflict with this Court’s opinion in R.A. V.,

it also does not conflict with the decisions in State v. Ramsey,

430 S. E. 2d 511 (S.C. 1993) and State v. Sheldon, 629 A. 2d

753 (Md. Ct. App. 1993). The statutes in both Ramsey and

Sheldon applied to both public and private property and

thus were not limited to situations involving the violent

conduct of trespassing onto another person’s property for the

purpose of engaging in threatening conduct.

CONCLUSION

For the foregoing reasons, the Petition for Writ of Certiorari

to the Supreme Court of Florida should be denied.

Respectfully submitted,