I am as pro “free-speech” as they come, but I agree with the SC that cross-burning is not protected symbolic speech. It is clearly meant to instill terror in African-Americans and contributes nothing to the marketplace of ideas. To me, it is equivalent to hanging someone in effigy right outside their residence.
The problem here is that second case mentioned in the CNN article - it wasn’t “right outside” anyone’s residence, but on private land owned by sympathizers to the particular (abhorrent, lest I be misunderstood) cause in question. If they had burnt a cross on someone else’s property, or staged a hanging in effigy on someone else’s property, as in the first case, I would go much further than you - they would be guilty of trespassing and vandalism, as well as intimidation by threat. If they had coerced someone into watching their little display, that too should be criminal, because it would be physical coercion and implied threats. In that second case, however, however, that isn’t what happened - and the mere fact that an act can be a direct threat if performed by people who are already in disregard of the law does not establish that that the act itself is a threat, when it is performed privately without any confrontation.
Cross Burning with intent to intimidate can be banned.
But the mere act of cross burning, in and off itself, is not sufficient evidence that the cross burning was intended to be a threat.
Just to make this clear for bystanders reading this thread, there were two cross burnings involved in this case. The Supreme Court held that the cross burning on the black neighbor’s lawn was not protected free speech. But the Supreme Court held that the cross burning at a political rally (in this case, the KKK’s) on private property probably was protected speech.
Does it also allows for Burning Man?
Does it also allows for Burning Man.
If Walloon is correct, then this sounds like a good decision. I have the right to burn a flag in protest. I don’t have the right to go to your house and burn your flag in protest. (Or anything else for that matter.)
The rules should be the same for crosses as they are for anything else. US flags, Pictures of the Pope, whatever. As long as you are not on someone elses property and own the item, you should have a right to burn it.
Hurm, that CNN article isn’t particularly informative, then. Mea culpa.
FTR, the opinion is now up at Findlaw.
Debaser: While Walloon is correct that there are two cases involved here, and the facts are as he states them, you should be aware that the opinion did NOT rest in any way on the fact that one cross burning had the permission of the landowner and the other did not. Indeed, Waloon misstates the holding: the court did not find the rally-burning was “probably” protected speech while the front-lawn-burning was not; it found that both cases may be protected speech if they are not done “with intent to intimidate,” and that the state cannot create a presumption of such intent.
The only reason that Barry Black (the rally burner) had his conviction invalidated outright while Richard Elliott and Jonathan O’Mara (the front-lawn burners) did not is because Black recieved a suspect jury instruction. Elliott and O’Mara had their cases remanded for specific findings on whether they intended to intimidate. It is theoretically possible (though, to put it mildly, highly unlikely) that on remand a jury could find Elliott and O’Mara weren’t trying to intimidate anyone.
It is also possible, excluding the lousy jury instruction, that Black could be convicted if the rally-burning was intended to intimidate; the state just can’t rely on a presumption to prove that. The prosecution could argue, for example, that the cross was purposefully made to be visible from the highway and thus sent a public message of impending violence to the local black community. If the jury accepts that interpretation, Black could be convicted even though the cross was burned with the landowner’s permission.
This decision does not turn in any way on who owns the property where the cross burning occurred.
Nice analysis, Dewey. Upon reading the opinion (caveat: I’ve only read O’Connor’s and, looking at the voting, not all sections of her opinion are dispositive - unless I’m counting the votes wrong), I have a problem.
There seems to be no factual foundation for the decision. Certainly people feel fear when confronted with a burning cross (I know I would), but the Court doesn’t address (and perhaps no one raised the issue) whether that fear is a rational one. I mean, is there a study out there showing how many times there was a cross burnt, how many times the burning was intended to intimidate, and how many times actual violence ensued thereafter?
To exercise hyperbole (I know this isn’t true), if there has been no violence associated with cross-burnings in the past 30 years, is the intimidation felt rational? If not, is it the laws job to protect us against our irrational fears?
I know that there are real incidents of violence, even today, associated with a burning cross. But I have a sneaking suspicion that you are much more likely to be the victim of violence from someone who has used the symbolic speech of a raised middle finger than a burning cross. But despite the increased risk, we feel less fear when someone flips us the bird.
I query whether we are imputing (and actually enhancing) power that really doesn’t exist when we criminalize such behavior.
Sua
Interesting question. I do wonder, however, if it’s the right question?
I don’t know what the criteria are to make intimidation illegal. But it seems plausible to me that illegal intimidation would consist of a communication from perp to intimidation victim along the lines of, “I’m going to perform X illegal act against you,” in such a way that a reasonable victim would believe that the perp meant it.
Now, let’s say that there’s a long tradition in a certain neighborhood of leaving, “I KILL YOU!” messages on people’s answering machines when you’re angry at them. It is widely believed in this neighborhood that such messages are often followed up by a murderous attack on the victim. What’s less-widely known is that nobody has EVER been attacked after receiving such a message. Is it illegal intimidation to leave such a message?
I’d think that it would be illegal: if the perp intends to communicate a threat, and the victim understands the communication to contain a threat, I’m not sure if it’s relevant whether historically perps have followed up on such communicated threats.
Daniel
Daniel,
Levels within levels. Let’s go to the videotape. 
OK. Under this paragraph of the decision, your hypothetical constitutes speech that can be made illegal (doesn’t have constitutional free speech protection), because “reasonable” or “rational” is not inserted before the word “fear.” IOW, a statement/symbol/etc. can be a “true threat” even if there is little to no reasonable possibility that the subject of the speech is actually in danger.
But does that make sense? Again using hyperbole, if a three year-old threatened to kick your ass, is it reasonable for you to feel fear, and is it proper to criminalize the little tyke’s statement?
Both this case and your hypothetical allow us to put someone in jail because the “victim” is behaving in an irrational manner. That’s kind of scary.
Sua
I think the hyperbole is problematic. After all, said three-year-old might proceed to punch me as hard as he can, and I still won’t think he should go to jail, whereas an adult who proceeds to punch me is gonna get charges filed against him. But as near as I know, the definition of battery doesn’t exclude the tyke’s attack, does it?
In this case, I don’t think that the victim’s behavior matters at all. If I say to you, “I’m the amazing Inferno-man, and I’m going to burn you to death using my superhuman Flame-o-vision!” then I’m still intending to communicate a serious threat of unlawful violence. From my reading of that statute, my attempt to intimidate you is illegal despite the fact that I’m a raving lunatic.
It is the perpetrator’s state of mind, not the victim’s, that determines whether it’s intimidation. At least, that’s how I read the paragraph you quoted.
Man. It’s intimidating arguing the law with a lawyer; I’m sure that I’m missing something glaringly obvious here.
Daniel
PS – could the “glaringly obvious” thing I’m missing be the parenthetical comment that “(‘political hyberbole’ is not a true threat)”?
You might want to read Thomas’s dissent. He goes to the exact point you are bringing up: namely, that cross-burning is always intended to create a threat. He doesn’t see it as a speech issue, but as a conduct issue.
His analysis seems based in historical realities rather than case law and precedents.
Dewey Cheatem Undhow, my point was not whether the cross burnings were on private property or not (although I think that factor was taken into consideration by the courts).
Waloon: your post certainly sounds like you were saying the critical distinction was the ownership of the property. At the very least, that’s how Debaser and I understood it. If that isn’t what you meant, you should have been clearer.
And property ownership was not a factor – read the opinion and point out where it is a factor if you think I’m wrong.
If you lived across the street from a black family and burned a cross on your own lawn, you’d most likely still run afoul of the statute. OTOH, if you snuck onto an empty field you did not own where no one could see you and you burned a cross, you probably would not run afoul of the statute because you clearly didn’t mean to intimidate anyone (you’d still be guilty of trespassing, of course).
This case simply does not turn on questions of property ownership.
Name me an important case in which Thurgood Marshall disagreed with William Brennan, and I’ll take this snipe seriously.
Oh wait, I forgot- THAT was merely a case of great minds thinking alike.:rolleyes:
No, you read it correctly, and you have the upper hand in this debate - the law is on your side.
I’m not trying to make a legal argument here (I’ve already lost that argument, thanks to this decision), but a policy argument, to wit: we shouldn’t criminalize attempts to intimidate that, by a rational standard, shouldn’t intimidate.
My reasoning is that intimidation is a crime because it causes the victim to change his/her behavior to his/her detriment from fear that if he/she does not, he/she will be harmed.
But if there is no actual risk of harm, rationally the victim should not change his/her behavior and the intimidation is a victimless crime. And I oppose criminalizing victimless behavior.
That is why my hypothetical of the 3 year-old is, IMO, relevant, if hyberbolic. If a three year old threatens to harm you if, for example, you don’t give him a dollar for a candy bar, is it rational for you to fear that the child will actually harm you? Should the child be jailed (ignoring laws about juvenile imprisonment) because you acted irrationally and treated the threat as a serious one?
That is my problem with the SCOTUS decision. It doesn’t even consider the rationality of the feeling of threat. In a way it does, by referencing the history of cross-burnings followed by violence, but even Justice Thomas had to refer back to incidents 50-odd years ago to make his point.
If the Mafia intimidates you, you rationally feel fear and change your behavior. If someone burns a cross on your property, ditto - they’ve already demonstrated they will violate your property. But, assuming that in the large percentage of incidents, other cross-burnings are not followed by violence, why should we care if the intent is to intimidate? A ‘true threat’ should be a true threat; otherwise it is just bluster.
Sua
I am new here but please go easy on me.
It is true Sua political speech incoprorates the use of generalized intimidation. However, the U.S. Supreme Court has consistently drawn lines on what forms of political speech are protected and which forms are not protected. What the U.S. Supreme Court is approving of in this case is an attempt to preclude one of the “effects” of speech which is a legitimate function of the police power. The “effect” of the speech is intimidation toward a particular person and the state may prohibit such speech. This is similar to the incitement cases where speech is protected only to the extent that it does not excite people to actually act upon it and inflict harm. The “effect” of the speech is what is being regulated in both instances.
Speech, whether it is political or not, that is directed to producing or likely to produce imminent lawless action is not protected under the First Amendment (Brandenburg v. Ohio). The U.S. Supreme Court has drawn a line stating some forms of political speech are protected and other forms are not. Those forms of political speech that produce or are likely to produce imminent lawless are not protected by the First Amendment. Here the U.S. Supreme Court is focusing upon the “effects” of speech and stipulating the state may regulate those effects. This cross burning case is no different than the Brandenburg case in standing for the proposition the message’s “effects” can be regulated.
So at least for me the fact the U.S. Supreme Court is stating some forms of intimidation are protected whereas others are not is not as much of a problem for me since the U.S. Supreme Court has been drawing lines for the last 50 years. Normally in an effort to protect speech when they do draw lines the U.S. Supreme Court typically incorporates an “intent” element. Normally, the speaker must have a requisite “intent” to cause or bring about the prohibited effect thereby protecting the message or the speech.