Lipp v. State, 227 A.3d 818

On May 23, 2018, Matthew Lipp and three other students spray‑painted swastikas, anti‑LGBTQ phrases, and racial/anti‑Semitic slurs on Glenelg High School property, including a graffiti naming the African‑American principal.
Lipp was indicted on multiple counts, including two counts under Md. Code, Crim. Law § 10‑305(2) (defacing property showing animosity against protected groups) and other property/trespass offenses.
Lipp moved to dismiss the § 10‑305 counts, arguing the statute unconstitutionally regulated protected speech (content/viewpoint discrimination) in light of R.A.V. v. City of St. Paul.
The circuit court denied the motion, concluding the statute targeted conduct (defacement/vandalism) motivated by bias and was analogous to the penalty‑enhancement upheld in Wisconsin v. Mitchell.
Lipp was convicted (by plea/agreed facts) of one count under § 10‑305(2), sentenced, and appealed; the Court of Special Appeals affirmed, holding the statute regulates harmful conduct, not pure speech.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CR § 10‑305(2) violates the First Amendment by penalizing viewpoint/content	Lipp: § 10‑305 penalizes speech because it criminalizes messages targeting protected groups and thus is content/viewpoint‑based (R.A.V. problem).	State: § 10‑305 targets non‑speech conduct (defacement/vandalism) motivated by bias; it regulates conduct, not pure expression, akin to Mitchell.	Court: Statute is constitutional; it regulates proscribed conduct motivated by bias, not protected speech.
Whether drafting the prohibition as a separate offense (vs. a sentence enhancement) matters for First Amendment analysis	Lipp: Distinguishes Mitchell because Mitchell involved a sentencing enhancement tied to an underlying crime.	State: Legislative choice to create a separate offense does not change the Mitchell analysis; either approach still targets conduct.	Court: Distinction without constitutional significance; separate‑offense structure is permissible.

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (struck ordinance that selectively proscribed "bias‑motivated" fighting words as content/viewpoint‑based restriction)
Wisconsin v. Mitchell, 508 U.S. 476 (1993) (upheld penalty enhancement for crimes motivated by bias because it targets unprotected conduct and addresses greater harms)
Virginia v. Black, 538 U.S. 343 (2003) (First Amendment protects symbolic conduct but allows narrow exceptions like true threats)
Ayers v. State, 335 Md. 602 (1994) (Maryland appellate discussion that statute form—separate offense vs enhancement—does not alter constitutional analysis)
People v. Rokicki, 718 N.E.2d 333 (Ill. App. Ct. 1999) (upheld hate‑crime statute as regulating conduct beyond mere expression)
In re Michael M., 86 Cal. App. 4th 718 (2001) (California court upheld vandalism‑based hate crime where racial slurs were written on school property)
State v. McKnight, 511 N.W.2d 389 (Iowa 1994) (upheld hate‑crime statute where biased speech coupled with assaultive or proscribed conduct lost First Amendment protection)