State v. RamseyState v. Ramsey
- Reporters:
- , ,
- Before:
- Harwell
Lead
ON REHEARING
Harwell, Chief Justice:Appellant John L. Ramsey was convicted of burning a cross on property of another and intimidation by use of an incendiary. A majority of this Court upheld his convictions in State v. Ramsey, Op. No. 23670 (S.C. Sup. Ct. filed June 13, 1992) (Davis Adv. Sh. No. 15 at 24) (Ramsey I). We granted appellant’s petition for rehearing to reconsider our prior opinion in light of the United States Supreme Court’s determination that cross burning constitutes expressive speech entitled to protection under the First Amendment. We vacate our prior opinion and reverse appellant’s convictions.
I. Facts
The complainant, Chief of Police of the City of York, returned home one morning to discover the charred remains of a wooden cross in his yard. Appellant subsequently was charged with burning a cross on property of another in violation of
Shortly after our opinion affirming Ramsey’s convictions3 was published, the United States Supreme Court struck down a Minnesota statute outlawing the placement of bias-motivated symbols on public or private property on the grounds that the Minnesota statute impermissibly restricted the right to freedom of speech guaranteed by the First Amendment.4 R.A.V v. City of St. Paul, 505 U.S. —, 112 S.Ct. 2538, 120 L.Ed. (2d) 305 (1992). We granted rehearing to consider the impact of R.A.V. on our decision in Ramsey I.
II. DISCUSSION
The First Amendment ensures that persons may speak as they think on matters vital to them, and that noxious doctrines may be refuted and their evil averted by the courageous exercise of the right of free discussion. Thorn-hill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L.Ed. 1093 (1940). Conduct may be sufficiently imbued with elements of communication so as to fall within the scope of the First Amendment. Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed. (2d) 342 (1989). Thus, the First Amendment generally prevents government from proscribing speech or expressive conduct because it disapproves of the ideas expressed. R.A.V., 505 U.S. at —, 112 S.Ct. at 2542, 120 L.Ed. (2d) at 317.
As both the majority and dissenting opinions implicitly recognized in Ramsey I, a burning cross historically conveys ideas capable of eliciting powerful responses from those engaging in the conduct and those receiving the message. We discern that the legislature enacted
The State urges us to construe
We now address the impact of R.A.V. on
A statute directed at conduct rather than speech may stand; and a statute reaching a proscribable class of speech, such as threats of violence, does not infringe on First Amendment rights.
In the First Amendment context, criminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held invalid even if they also have legitimate application. R.A.V., 505 U.S. at —, 112 S.Ct. at 2560.120 L. Ed. (2d) at 338 (White, J., concurring). The objectionable quality of overbreadth in the area of First Amendment freedoms depends on the danger of tolerating the existence of a penal statute susceptible of sweeping and improper application. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed. (2d) 405 (1963). Therefore, when First Amendment rights are involved, this Court must look even more closely at a legislative enactment, lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech suffers. See Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed. (2d) 469 (1966).
A majority of this Court interpreted
We find that
In the interpretation of statutes, our sole function is to determine and, within constitutional limits, give effect to the intention of the legislature, with reference to the meaning of the language used and the subject matter and purpose of the statute. State v. Carrigan, 284 S.C. 610, 328 S.E. (2d) 119 (Ct. App. 1985). In construing a statute, words must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute’s operation. Bryant v. City of Charleston, 295 S.C. 408, 368 S.E. (2d) 899 (1988). Here, “incendiary” is utilized in conjunction with the term “explosive.” Although “or” ordinarily is a disjunctive particle denoting an alternative, it may be employed as a coordinate conjunction introducing a synonymous word or phrase, or it may join different terms expressing the same idea or thing. Martin v. Carolina Water Service, Inc., 280 S.C. 235, 312 S.E. (2d) 556 (Ct. App. 1984). Incendiary bombs contain chemicals that produce intensely hot fire when exploded. The American Heritage Dictionary 650 (2d college ed. 1982). We hold that “incendiary” when used in conjunction with “explosive” properly is defined as a bomb used to start a fire. In so holding, we overrule the Court of Appeals’ decision in State v. Garrett, 305 S.C. 203, 405 S.E. (2d) 910 (Ct. App. 1991 (holding that a cross is a device adapted or used in setting a fire, therefore an incendiary within meaning of statute).
any incendiary bomb or grenade, fire bomb, or similar device, including any device which (a) consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound, and (b) can be carried or thrown by one individual acting alone.
See also
Turning to the case before us, we find that the trial judge erred in informing the jury that
Our prior opinion in Ramsey I is vacated, and appellant’s convictions for burning a cross on property of another and for intimidation by use of an incendiary are
Reversed.
Chandler and Moore, JJ., concur. Finney and Toal, JJ., dissent in separate opinion.Notes
It shall be unlawful for any person to place or cause to be placed in a public place in the State a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is the whole or a part or 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 the whole or a part, without first obtaining written permission of the owner or occupier of the premises so to do.
Whoever wilfully and unlawfully communicates a threat, conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made or to be made to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of an explosive or incendiary; or aids, agrees with, employs, or conspires with, any person to do or cause to be done any of the acts hereinbefore mentioned, shall be guilty of a felony____
As the majority noted in Ramsey I, the maximum sentence provided by
Minn. Legis. Code § 292.02 (1990) provided:
Whoever places on public or private property a symbol, object, appelation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
Fighting words are personally abusive epithets which, when addressed to ordinary citizens, are, as a matter of common knowledge, inherently likely to provoke violent reaction. This category of speech is outside the First Amendment. Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1784, 29 L.Ed. (2d) 284, 291 (1971).
Dissenting Opinion
I respectfully dissent. I agree that
Incendiary is commonly defined as “relating to or involving a deliberate burning of property.” Webster’s Third New International Dictionary 1141 (1976). Other courts have defined incendiary consistent with this definition. See State v. Bindyke, 25 N.C. App. 273, 212 S.E. (2d) 666 rev’d on other grounds 288 N.C. 608, 220 S.E. (2d) 521 (1975). Alternative definitions include “tending to excite or inflame,” as well as the definition claimed by the majority: “fire bomb.” However, to hold that incendiary was intended to include something merely intending to excite or inflame would be overbroad. Contrarily, defining incendiary narrowly as a fire bomb would make the statute somewhat redundant. The use of the word incendiary in the statute was clearly intended to be an alternative to explosive, not merely a further explanation.
Instead, the legislature has rightly determined that threats to intimidate which include the use of a burning object are particularly menacing and terrifying to the recipient. Therefore, they justify harsher penalties. Accordingly, S.C. Code
I would further hold that the trial court’s charge which defined incendiary as “pertaining to or used to ignite fire or tending to excite” was harmless beyond reasonable doubt. Arnold v. State, — S.C. —, 420 S.E. (2d) 834 (1992) cert. denied — U.S. —, 113 S.Ct. 1302, 122 L.Ed. (2d) 691 (1993). The jury found the defendant guilty of burning a cross pursuant to