Extinguishing the Burning Crosses: Washington's Malicious Harassment Statute in Light of the Issues of Overbreadth and Vagueness

• Publication year: 1992

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 16, No. 1FALL 1992

Extinguishing the Burning Crosses: Washington's Malicious Harassment Statute in Light of the Issues of Overbreadth and Vagueness

Edward Comitz(fn*)

I. Introduction

Washington enacted a malicious harassment statute(fn1) in 1989 in response to the growing number of incidents of hate crimes(fn2) occurring within the state. Statutes similar to Washington's have been adopted in a number of other states.(fn3) The only states that have not enacted some form of hate crime legislation are Arkansas, Nebraska, Utah, and Wyoming.(fn4)

Many of the states that have enacted hate crime legislation, including Washington, specifically refer to the act of cross burning.(fn5) Cross burning incidents are currently on the rise in Washington. In fact, the most recent and controversial cases invoking Washington's malicious harassment statute have all involved cross burning.(fn6)

Because the recent controversy over Washington's malicious harassment statute has centered on cases involving cross burning incidents, the act of cross burning "with the intent to intimidate or harass"(fn7) will be used as an example of a hate crime throughout this Comment. This is not to say that other hate crimes are of lesser importance than cross burning. It is clear that numerous symbols and words can, because of their historical context, equally communicate the same messages of hatred and violence.(fn8)

Hate crimes, such as cross burning, are qualitatively different from other crimes because the perpetrator's conduct harms not only the direct victim, but other individuals indirectly as well. When a cross is burned in front of an African-American's home, a message is sent both to that individual and to the entire African-American community. The message is understood, based on the history of cross burning, as a threat of future harm.(fn9)

The Anti-Defamation League of B'nai B'rith has found that cross burning and other hate crimes mayeffectively intimidate other members of the victim's community, leaving them feeling isolated, vulnerable, and unprotected by the law. By making members of minority communities fearful, angry, and suspicious of other groups- and of the power structure that is supposed to protect them-these incidents can damage the fabric of our society and fragment communities.(fn10)

Despite the damaging effects of hate crimes, some argue that cross burning with the intent to intimidate or harass is nonetheless deserving of First Amendment protection. The argument is that hate speech, as communication, cannot be sanctioned by the government unless a fight or lawless action is imminent.(fn11) Moreover, even the regulation of unprotected speech, such as fighting words, is deemed impermissible if the regulation is based on the speech's nonproscribable content.(fn12)

The first section of this Comment will briefly discuss how Washington's malicious harassment statute should be interpreted in light of the recent United States Supreme Court case R.A.V. v. City of St. Paul(fn13) In that case, the Court held that a City of St. Paul hate crimes ordinance was unconstitutional.(fn14) Rather than deciding the case on the obvious issues of overbreadth and vagueness, the Court held that the ordinance was impermissibly content-based.(fn15)

Under the Court's reasoning, Washington's malicious harassment statute will probably be found unconstitutional.(fn16) Such a finding, however, will merely lead to the drafting of a content-neutral statute through the use of a catch all phrase.(fn17) Even with the addition of this phrase, however, the statute will still be subject to attack. Accordingly, the next round of criticisms will focus on the issues of overbreadth and vagueness, issues to which the Supreme Court has not provided guidance.

Because the issues of overbreadth and vagueness are of such imminent importance, an analysis of those issues will form the majority of this Comment. Both issues, as mentioned above, will be discussed in terms of the specific crime of cross burning with the intent to intimidate or harass as proscribed by Section (1) of Washington's malicious harassment statute.(fn18)

In discussing the issue of overbreadth, a determination must be made as to whether cross burning with the intent to intimidate or harass is even "expressive conduct." This author contends that such acts are not speech, but merely threats of violence that can be freely regulated by the government. Under this interpretation, Section (1) of Washington's statute is not overly broad because it proscribes only non-speech.

If cross burning with the intent to intimidate or harass is interpreted as expressive conduct, the constitutional analysis will be different, but the end result is nevertheless that such conduct is sanctionable. This is because cross burning with the intent to intimidate or harass can be construed as encompassing only "fighting words," threatening speech,(fn19) or low value speech, all of which are subject to legitimate criminalization. Under the previous interpretations, Section (1) of Washington's statute survives criticisms of overbreadth because it sanctions only unprotected speech.

Issues of overbreadth aside, Section (1) of the statute may be criticized on vagueness grounds. For example, some argue that the wording is unclear as to what extent the perpetrator must be motivated by the victim's ethnicity. This criticism is without merit. The most logical interpretation of the statute is that the victim's ethnicity must have been at least a substantial reason why the perpetrator acted.

Another potential criticism of the statute is that the wording "places another person in reasonable fear of harm . . ." is vague, because neither a subjective nor an objective standard is specifically mentioned. This criticism, however, is easily overcome because Washington uses a mixed standard in such circumstances.

Considering the concrete and real harms minority victims of hate crimes experience, there is a tremendous need for a malicious harassment statute. With this in mind, Washington's statute should be construed, whenever possible, in a way that preserves its constitutionality.

II. The Implications of R.A.V. v. City of St. Paul: Underbreadth

In its June 22, 1992, opinion, the United States Supreme Court held a City of St. Paul hate crimes ordinance(fn20) unconstitutional.(fn21) Despite claims of overbreadth and vagueness, the Court never reached these issues. In fact, regarding the issue of overbreadth, the Court simply stated that it was bound by prior Minnesota decisions construing the language "arouses alarm or resentment in others" as referring only to fighting words.(fn22)

Rather than analyzing the most apparent issues, the Court held that the City of St. Paul's hate crimes ordinance was unconstitutional based on the new doctrine of "under-breadth."(fn23) The majority, led by Justice Scalia, stated that the ordinance impermissibly sanctioned some fighting words but not others.(fn24) This selective proscription, argued the Court, was based on the particular views the "speakers" decided to convey, and was therefore an impermissible regulation of ideas.(fn25)

Although the majority's reasoning in R.A. V. has numerous shortfalls,(fn26) Washington courts are nevertheless bound by the opinion.(fn27) Challenging Washington's statute as under-inclusive, however, does not end the discussion. As Justice White stated in his concurring opinion, the underbreadth problem can easily be cured by adding a catch-all phrase such as "and all other fighting words that may constitutionally be subject to this ordinance."(fn28)

Even with Washington's malicious harassment statute reworded to conform with R.A.V., constitutional criticisms will nevertheless exist. The statute will still be subject to attack concerning the issues of overbreadth and vagueness. Regarding both issues, the Supreme Court has yet to provide guidance.

III. Addressing the Real Issues: Overbreadth and Vagueness

Part A of this Comment will focus on the yet to be decided issues of overbreadth and vagueness, with an emphasis on the way they affect Section (1) of Washington's statute. In discussing Section (1), cross burning with the intent to intimidate or harass will continue to be used as an example of a hate crime.

Part B of this Comment will focus on Section (2)(a) of Washington's statute, which also proscribes cross burning. This section, however, makes no reference to the perpetrator's intent and is therefore overly broad. A remedy for this constitutional deficiency will be provided.

A. Analysis of Section (1)

1. Cross Burning with the Intent to Intimidate or Harass as Non-Expressive Conduct

In order to determine whether Washington's malicious harassment statute impermissibly restricts freedom of speech, the first step is to determine whether cross burning with the intent to intimidate or harass is even expressive conduct. The Supreme Court supplied the test for making this determination: "[There must be an] intent to convey a particularized message . . . and the likelihood [must be great] that the message would be understood by those who viewed it."(fn29)

Using this test, those who oppose the criminalization of cross burning may argue that all cross burnings constitute expressive conduct because the message of white supremacy is...