Maryland appeals court rejects free-speech challenge to anti-hazing law

Tuesday, March 14, 2000

Maryland’s anti-hazing law does not violate the First Amendment, said a state appeals court which rejected the argument of a fraternity member who beat two pledges.

Jon-Mikael McKenzie was convicted of hazing in June 1998 for repeatedly paddling and caning two pledges of the Kappa Alpha Psi Fraternity at the University of Maryland Eastern Shore.

The two men were beaten so badly that they had to be hospitalized and had to have skin-graft surgery on their buttocks.

On appeal, McKenzie contended that the state’s anti-hazing statute is both overbroad and vague.

The law defines hazing as “doing any act or causing any situation which recklessly or intentionally subjects a student to the risk of serious bodily injury for the purpose of initiation into a student organization of a school, college, or university.”

The Court of Special Appeals of Maryland rejected the constitutional challenges in McKenzie v. State. The court wrote in its March 10 opinion that McKenzie’s “arguments, in our view, have little merit, and we stand stunned that appellant would so stretch the First and Fourteenth Amendments to escape the consequences of actions so pellucidly proscribed by state law and school policy.”

McKenzie contended that the anti-hazing law “seeps into the realm of violating free speech.” The appeals court was not persuaded, pointing out that the statute “does not reach such conduct as yelling at or insulting pledges.”

“The statute only reaches that conduct ‘which recklessly or knowingly subjects a student to the risk of serious bodily injury,’ ” the court wrote.

The Maryland court cited cases in Missouri, Illinois and Ohio in which other state courts rejected similar constitutional challenges.

The Maryland appeals court also dismissed McKenzie’s vagueness argument. “We cannot imagine … that the men and women who attend schools, colleges and universities in Maryland would be incapable of understanding which activities might be encompassed in the statutory definition of ‘haze.’”

McKenzie also argued that the anti-hazing statute restricts speech based on content. However, the appeals court determined that the statute “is directed solely at unprotected pure conduct, whatever its motivation, rather than expressive conduct” that might receive First Amendment protection.

Gary Bair, chief of the Criminal Appeals Division for the Attorney General’s Office in Maryland, said the appeals court had reached the correct result. “The First Amendment argument was one that has been rejected in several other states,” he said. “The law does not prohibit speech but unlawful conduct.”

Chirag Patel, McKenzie’s attorney, said a decision had not been made whether to appeal the decision to Maryland’s high court. “We still feel that the arguments we presented were plausible and credible. The anti-hazing law is overbroad. We knew we were fighting an uphill battle.”