E. Other Miscellaneous Crimes

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

E. Other Miscellaneous Crimes

1. Intimidation by Use of an Incendiary (Cross Burning)

A conviction and lengthy prison sentence for burning a cross on the City of York police chief's front lawn was overturned after the United States Supreme Court's decision in R.A.V v. City of St. Paul, Minn., 505 U.S. 377 (1992). Initially, the South Carolina Supreme Court upheld the conviction in State v. Ramsey, but granted a petition for rehearing after R.A.V. was issued. The first opinion was vacated, and the Court reversed Ramsey's conviction and sentence. State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511 (1993). The statutes involved in the prosecution were § 16-7-120 (burning a cross on the property of another) and § 16-11-550 (intimidation by use of an incendiary) (now repealed). Chief Justice Harwell's majority opinion found the cross burning statute to be facially unconstitutional under reasoning of the Supreme Court's opinion in R.A.V.. "The government may not selectively limit speech that communicates, as does a burning cross, messages of racial or religious intolerance." Ramsey, at 559, 430 S.E.2d at 514. As burning a cross is expressive conduct intended to communicate a message of racial intolerance, it is conduct protected by the First Amendment.

The Court similarly found the application of § 16-11-550 to this factual situation to be improper. The majority found that the use of the term "incendiary" in conjunction with "explosive" indicated that the Legislature intended the statute to apply to a bomb used to start a fire. In so ruling, the Court overruled the Court of Appeals' decision in State v. Garrett, 305 S.C. 203, 406 S.E.2d 910 (Ct. App. 1991).

2. Noise Ordinances

Street preachers and others who engage in loud and disruptive behavior may be subject to criminal prosecution, ifthe statute under which prosecution is initiated is narrowly tailored to prohibit the manner of the behavior and not the message being conveyed. City of Beaufort v. Baker, 315 S.C. 146, 432 S.E.2d 470 (1993). Finding that the statute at issue was a valid time, place and manner restriction, the Court held a Beaufort city ordinance to be constitutional under the First Amendment. This holding was based upon a finding that the ordinance was content-neutral and "narrowly tailored to serve the City's significant interest of controlling the level of noise in its downtown business area." Id. at 150, 432 S.E.2d at 473. The Court also found the language of the ordinance prohibiting "loud and unseemly" conduct to be sufficient notice to overcome a vagueness argument.

Justice Toal, in a dissent joined by Justice Finney, compared the Beaufort ordinance to similar ordinances that were used to arrest and harass citizens in the civil rights movement of the 1960's. "It just seems astounding that an unamplified non-threatening voice, at noon, on a public street in a commercial district, is speech which can be restricted." Id. at 157, 432 S.E.2d at 477. In essence, the dissent felt that the ordinance was being applied because of the content of the message, rather than manner of presentation. In support of this argument, Justice Toal pointed out that, on the same street, "vehicles with radios blaring pass unchallenged by the police." Id. at 155, 432 S.E.2d at 475.

The statute survived, for now, a constitutional challenge in the federal courts. Asquith v. City of Beaufort, 139 F.3d 408 (4th Cir. 1998). That court found that Baker determined the term "unseemly" to modify "loud" and means "unreasonably loud in the circumstances." Asquith, at 411 (quoting Baker, at 152, 432 S.E.2d at 474). Finding that the South Carolina Supreme Court applied a "narrowing construction" to the statute, the federal appeals court reversed the district court's grant of injunctive relief. The Fourth Circuit did not reach the issue of whether the statute was valid, either facially or as applied. Asquith, at 412.

Noise and "bass vibrations" were the subject of a decision of the Court of Appeals interpreting the common law offense of breach of the peace. State v. Peer, 320 S.C. 546, 549, 466 S.E.2d 375, 377 (Ct. App. 1996). Peer and his business partner, Matthews, operated a teen club near a subdivision in Greenville County. The club, advertising its earthquake-like sound system, was very popular, drawing over 1,400 teenagers on a typical weekend. After numerous complaints from local residents the owners were convicted of breach of the peace and fined. On appeal, the owners asserted that the convictions were improper because there was "no evidence of any incitation to violence." Id. at 550, 466 S.E.2d at 378.

While acknowledging that common law breach of the peace is "[i]n general terms, . . . a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence," id. at 552, 466 S.E.2d at 379 (citations omitted), the court noted that "actual violence is not an element of breach of the peace." Id. (citations omitted). It is enough that the disturbance is of the type that is likely to "violate the peace and comfort of others in the vicinity." Id. (citing 3 S.C. Juris. Breach of Peace § 7 (1991)). Based upon these principles, the court found ample evidence that the...