Defense attorneys for two of the former Glenelg High School students facing hate-crime charges are expected to argue that slurs found at the high school amount to constitutionally protected free speech.
Six days before graduation, four seniors at the west-central county school were accused of hate crimes after swastikas and racial epithets, including one police said was aimed at the school’s principal, were found painted on the school’s parking lot, sidewalks and exterior walls May 24.
Charged with identical seven-count indictments — three counts related to religious or race harassment, two destruction of property-related counts and two trespassing counts — the teens could face up to three years behind bars and a $5,000 fine on the most serious charges.
In court documents filed this week that shed new light on their defense strategy, attorneys for two of the teens said they want hate-crime charges thrown out and point to a 26-year-old Supreme Court case that declared a Minnesota law violated free-speech rights.
Brian Thompson, attorney for Matthew Lipp, 18, of Woodbine, filed a motion to dismiss the three counts related to religious or race harassment on Monday.
Mark Muffoletto, attorney for Tyler Curtiss, 18, of Brookeville, also filed a motion to dismiss the top charges on Monday, according to court records. Muffoletto did not respond to multiple requests for comment.
The two defense attorneys argued the three counts are based on alleged violations or conspiracy to violate a state criminal code that states if evidence that exhibit animosity against a person or groups because of race, color, sexual orientation, disability, gender, religious beliefs, national origin or homelessness, by defacing, damaging, destroying, burning—or attempting— property, is unlawful.
The two cited a 1992 Supreme Court case ruling as part of their arguments, according to the filed motions.
In R.A.V. vs. St. Paul, where a group of teenagers allegedly constructed a crudely made cross by taping broken chair legs together and burning the cross in a black family’s backyard in St. Paul, Minn., the high court ruled it was unconstitutional to charge the petitioner, R.A.V., with a bias-motivated crime ordinance.
“The Minnesota law prohibited burning crosses or using Nazi swastikas and what the Supreme Court said is that violated free speech because it impermissibly restricted someone’s symbolic speech,” said Colin Starger, an associate professor of law at the University of Baltimore law school.
“My client is not going to plead guilty to a statute that violates the first amendment to the U.S. Constitution,” Thompson said.
However, Thompson added he’s “not suggesting he’s [Lipp] not willing to take responsibility for his actions.”
Thompson’s motion states the alleged conduct of defacing school property with graffiti “could be punishable by malicious destruction, whereas the graffiti’s content can not [sic].”
Muffoletto argues the graffiti found at Glenelg did not insult, incite, or provoke violence on the basis of race, color, gender, creed or religion nor it could be inferred in that way, according to the motion.
“No matter how distasteful, offensive or ignorant the speech may have been, the fundamental freedom of that speech prohibits Maryland’s punishment of that constitutional free speech,” Muffoletto’s motion states. “The Supreme Court has made it clear … that the State cannot selectively silence speech on the basis of its content.”
The argument the defense is bringing to the court “falls in the middle,” of being considered unconstitutional or not, according to established law, according to Starger, who is not involved in the Glenelg cases.
“There is potential that the destruction of property involves symbolic speech of someone which doesn’t violate the First Amendment,” Starger said.
All four teens did not enter a plea on the misdemeanor charges during initial appearances throughout the summer.
A plea bargain has been made to Lipp but it was rejected, Thompson said.
“I’m happy to negotiate on the remaining valid charges,” Thompson said. “I’m not saying he’s [Lipp] guilty but [I’m] certainly willing to explore a plea.”
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It is not clear whether Curtiss has received a plea agreement.
Last month, two of the teens — Seth Taylor, 19, of Glenwood and Joshua Shaffer, 18, of Mount Airy — appeared in court where the potential of separate plea offers for them first surfaced publicly.
A spokesman for the state’s attorney’s office has declined to comment on specifics of any plea bargain terms because agreements were not presented in open court.
Plea hearings for Shaffer and Taylor are expected two days after Christmas.
Prosecutors offer plea agreements for a variety of reasons, including avoiding a protracted, costly trial, according to David Jaros, an associate professor of law at the University of Baltimore law school.
Lesser charges and penalties could be involved in a plea, Jaros, who is not involved in the Glenelg cases, previously said.
Both Lipp and Curtiss are expected to appear for motions hearings Dec. 18, with trials set in February and January, respectively.