Well Sua I agree with you on this point. Since speech is of paramount importance in our Constitution and the wording of the First Amendment testifies to this fact, then why punish speech when the prohibited effects do not materialize? I think your position here would be consistent with prior U.S. Supreme Court decisions where they have set the intent standard so high to protect the message. I don’t understand why the U.S. Supreme Court did not do so in this case?
I think the Supremes are living in the past. Had this case come up say 30-40 years ago, I think the decision would have been correct. At that point, the connection between the burning cross and violence and coercion was much more immediate and real.
I do want to reiterate one point; for all I know, there still is a strong connection between the burning cross and violence. The problem with the decision is that, IMO, that continuing connection needs to be established before cross burning with the intent to intimidate can/should be criminalized.
Sua
Sua, basing the legality of an intimidation attempt on the perception of a reasonable person that the communicated threat might be carried out is an interesting idea. I suspect, however, that it might entail some real difficulties, in terms of obfuscating whether a particular act is a crime. (obviously, please correct me if I’m misunderstanding the standard you argue for).
Sure, a three-year-old who threatens to hit me isn’t breaking a crime, because I’m obviously not going to be hurt. But what about a guy in a bar drunkenly threatening to kick my ass, but he can’t even stand up? Is he committing a crime? Would it be a crime if I were drunk enough that I couldn’t escape him as he crawled toward me?
If I’m a big burly guy, and a little shrimpy guy threatens to beat the hell out of me, is the little shrimpy guy committing an illegal act? If I’m an experienced fighter, does this change whether he’s committing a crime? If he’s an experienced fighter, does this change whether he’s committing a crime? If I believe he’s an experienced fighter, does this change whether he’s committing a crime?
It seems to me that a “reasonable fear” standard is going to be very difficult to enforce, since circumstances are going to vary so widely. I’d think it’d open up a bizarre defense against charges of intimidation: “Sure, I meant to intimidate Bob, but Bob should’ve known that I’m an incompetent boob who couldn’t (or wouldn’t) ever carry out my threat.”
If someone tries to intimidate someone else, regardless of whether they intend to carry through on their threat, and regardless of whether their victim believes that they’ll carry through on their threat, it seems to me that their behavior should be criminalized.
I’d say that such intimidation is no more a victimless crime than is an attempted murder in which the bullet misses its victim. Nobody got hurt this time, but you want to prevent future bullets from possibly finding their marks.
Daniel
I’m also wondering how strong a connection you’d want to see between burning crosses and violence in order to establish that illegal intimidation occurred. Does it need to be something like:
- On June 5, Bob burned a cross in a public park.
- On June 20, Bob killed a black woman living with a white man.
Or is it enough to establish that in a month or so after Bob burned the cross, a buddy who attended the crossburning killed a black woman who lived with a white man? If Bob did this, but if it was the first incident of crossburning followed by racially-motivated murder in 20 years, is Bob off the hook for intimidation charges, even if he intended to communicate to mixed-race couples that their lives were in danger?
What if the guy who killed the mixed-race couple didn’t attend the crossburning? Does the fact that Bob’s crossburning occurs in a community in which race-motivated violence is a reality have any effect on whether his intimidation is real?
Obviously, I’d rather stick to the perpetrator’s intent when establishing whether it’s a crime. I’d rather rely on other legal systems to avoid locking up 3-year-old Junior when he threatens to beat me up if I don’t give him a cookie.
Daniel
Not a good comparison, DanielWithrow. The cause and effect between firing a bullet at someone and the likelihood of the person getting hurt if not killed is obvious. The correlation between a cross burning and violence, or even threatened violence, is not clear, and has not been clear for at least the last 40 years.
My point, Walloon, is that when we decide whether something is a crime, we criminalize the intent to commit the crime, not whether the commission of a crime is successful (although we may further criminalize a successful act – attempted murder, for reasons I don’t understand, is punished less harshly than successful murder).
If someone intends to frighten somebody by communicating threat of illegal violence against them, that seems to me to be all we need to know to criminalize the act. Whether their intended victim ought to be frightened doesn’t seem nearly as important to me.
As for my analogy failing: we know that a fired bullet will, if it hits its target well enough, kill the victim. We know that a communicated threat will, if it hits its target well enough, scare hell out of the victim. We don’t need to look at a historical connection there to know what effect the threat has if it’s successful.
History is, in this case, only important for understanding what the perpetrator is attempting to communicate.
Daniel
We had a cross burning case in my court a few weeks ago. A young black family who had a cross burned in their front yard. They moved. Out of the state. I think the message of the burning cross is the same as it has always been: do what we want or we will kill you.
Cross burning as a threat of violence has not been determined. How, in the last forty years, does cross burning = threat of violence? Is there a factual basis for even such a perception in the last forty years? In 2003, is it a rational belief or perception?
Cross burning on someone else’s yard is one thing. Burning a cross in your own yard is something quite different.
Sorry to split hairs here, but are you saying that we’ve not determined whether anyone in the last forty years has intended to convey a threat of illegal violence via the burning of a cross, or are you saying that we’ve not determined whether anyone in the last forty years has communicated a threat of illegal violence via the burning of a cross and then followed through on it?
If you’re saying the former, I think you’re incorrect. If you’re saying the latter, I think it’s not relevant. If you’re saying something else, my apologies for the confusion.
Note that I’m not entirely comfortable with outlawing the burning of a cross on private property in a way that no threat is communicated to a specific individual: while I’m fine with outlawing the intent to communicate a threat of illegal violence, I’m not so comfortable with the prima facia assumption that that’s the purpose of burning a cross under such circumstances.
Clearly that’s the purpose when someone burns a cross in a mixed-race couple’s yard. But if someone burns a cross ata gathering of white supremacists, I wonder if they could argue that they’re just celebrating their racist asshole heritage, that they had no intention of any supposed victim ever even finding out about the burning.
In such a case, there might be other charges against them that would stick. Maybe incitement to violence? But if they didn’t intend to frighten a victim (evidenced by the lack of any victim witnesses), then I don’t see where it’d be intimidation.
Daniel
There we agree, Daniel, and well put.
Are you saying that property ownership should be the critical distinction or are you saying that it is the critical distinction? If the latter, you’re simply wrong – as noted above, this case did not turn in any way on property ownership.
OTOH, if you’re saying the former – say you burn a cross in your own yard, intending to intimidate the black couple living across the street. Do you believe the cross-burning law should fail to reach that situation?
Or say you sneak onto a rural field with a few KKK cronies and burn a cross in such a location and manner that you do not believe you will be observed. You are admittedly guilty of trespassing; should you also be guilty under the cross-burning statute?
But this is criminalizing being a jerk. While I sympathize with the desire to criminalize being a jerk, I don’t think it is appropriate.
And should it remain this way forever? If I were to unveil the flag of the Know-Nothing Party in an Irish Catholic neighborhood with the intent to intimidate, should I be tossed in the clink? A hundred years from now, when (fingers crossed) the KKK is a distant memory and we all, through intermarriage and the like, are a health deep beige with slightly kinky hair, should burning the cross with the intent to intimidate still be a crime?
Sua
Damn straight.
It’s a shame we don’t have more people like Brennan and Marshal on the bench anymore. Souter and Ginsburg dissents are so dry and legalistic, they lack a certain something… essence, emotion, heart, soul… that Brennan had in his opinions.
I can certainly empathise with this position Daniel but in regards to the protection of Free Speech I question if it is sufficient.
Free speech possesses a very unique position in our Constitution. The U.S. Supreme Court has acknowledged this fact. The First Amendment even states Congress shall pass NO law abridging freedom of speech. Speech is a fundamental right in our U.S. Constitution. A result of your reasoning would impair this fundamental right and certain forms of protected political speech would no longer receive protection, especially hate speech.
As Sua elaborated upon earlier generalized forms of intimidation are protected even if it was the intent of the speaker was to intimidate. Hate speech serves no other purpose than to intimidate people and it is the purpose of the speaker, one purpose probably among several different purposes, to intimidate people with hate speech. I can’t think of any other reason as to why to espouse a hate speech message advocating illegal activity other than to intimidate. Yet hate speech is protected by the First Amendment as held by the U.S Supreme Court in Terminello v. Chicago, RAV v. St Paul of Minnesota, and Brandenburg v. Ohio.
A white Supremacist giving a speech advocating illegal activity, such as the death of Jews, African Americans, Hispanics, and members of Congress is a message designed to intimidate. This is the classical form of hate speech. Yet such speech is protected by the First Amendment despite the fact the speaker has the intent to intimidate. This is the essence of the Brandenburg holding. Acknowledging speech, especially political speech, is the paramount reason for the creation of the First Amendment the Supreme Court fashioned an intent requirement designed to protect political and general forms of speech, even if the speech advocates the threat of violence and it is the purpose of the speaker to intimidate. Any speech, including hate speech, that is not likely to produce or does not produce imminent lawless action is protected by the First amendment. Brandenburg v. Ohio.
As a result of the high importance placed upon speech by the First Amendment a speaker typically is not breaking any criminal law advocating the use of illegal activity or espousing a hate speech message unless it is likely to produce or does produce imminent lawless action. Now this intent requirement is very similar to Sua’s point that a mere intent to intimidate is not sufficient. In my opinion burning a cross can constitute as hate speech in certain contexts and unless the burning of the cross is likely to intimidate or does actually intimidate a perceiver then it is protected by the First Amendment.
This is the best approach in my opinion because it protects the message, it protects the speech from censorship and the many factors to take into consideration if there has been a violation would be those elaborated upon by yourself and Sua. For example one such factor would include whether the individual or group had experienced previous cross burning episodes followed by acts of violence or if the region had recently experienced episodes of cross burning followed by acts of violence.
Now why can’t this approach be sufficient? It protects speech and permits those to be prosecuted for abusing speech.
I guess my problem is twofold:
- If a person is genuined attempting to communicate a threat of illegal violence, we ought to be discouraging that behavior. Allowing them to get away with it because they’re incompetent seems a bad idea: next time, maybe they’ll figure out how to communicate the threat of illegal violence more effectively.
- If we judge the legality of a threat by how competently it’s transmitted, (i.e., whether the acknowledged intent to strike fear into a victims heart really would strike fear into the heart of an average victim), we have a strange standard.
If I calmly and quietly tell a bunch of migrant farmworkers, “Get out of town or I’ll shoot you all tonight.” but none of them speak English, have I committed a crime? After all, a reasonable person wouldn’t be frightened by someone speaking calmly to them in a foreign language.
And again, how do we deal with folks who make threats that they cannot (in a reasonable person’s perceptions) carry out? Do we really want to offer the belligerent drunk the defense of, “C’mon, anyone could see I was too drunk to stand up straight, much less knife the guy I was threatening to kill”?
Sua, I don’t see this as criminalizing being a jerk. Intending to terrorize somebody by conveying a threat of illegal violence against them is beyond being a jerk. Hell, if I say, “I’m so gonna kick your ass,” to a friend of mine who’s teasing me, but I don’t intend to terrorize them, we all agree my behavior isn’t illegal. It’s only illegal if I am attempting to terrorize them.
And in that case, I think it should be my judgement of what’s terrorizing, not the judgement of a hypothetical victim, that determines whether I’m committing a crime.
Again, I’m not sure that this applies to the cross-at-a-rally case. And I think I halfway agree with you about the reason. History may figure importantly in this case, but only for determining the intent of the perpetrator (whereas I gather you think it should determine the effect on the hypothetical reasonable victim). If there’s a history of racist assholes burning crosses at private events to celebrate their racist asshole heritage, then that means the prima facie assumption of intent to intimidate when burning crosses is flawed. Such racist asshole celebration cannot reasonably be interpreted as intent to intimidate, if only racist assholes get to watch the cross burn.
Daniel
What if it is a political message? What if the speaker is advocating the killing of African Americans, Latinos, Hispanics, and Catholics along with those members of Congress who have defiled the white race, the destruction of the NAACP headquarters, and any other minority sympathisers should be killed all in an attempt to preserve America for white people, preserve the rights of white people, to remove those who are holding back white people, and to do away with programs benefitting minorities to the exclusion of white people. Now lets suppose the speaker made this speech in a stadium located in a neighborhood inhabited by African Americans, Latinos, Hispanics, and Catholics. I can’t think of many reasons why this message would be spoken other than to frighten and intimidate some of the listeners as well as express a particular political message. Should the speaker in this scenario be interrupted and precluded from continuing his message? Should he be arrested and charged? What crime has be committed?
What if the KKK wanted to have a Klan rally in the middle of a busy park on a Saturday afternoon. There are many different ethnic groups present in the park at the same time the Klan presents its rally. There are Mexican Americans present in the park Of course there would be no reason for the Klan to have a rally if the subjects they detest are not capable of hearing their message. As expected the various Klan speakers make threatening statements such as, “Look out Ni**er the Klan is getting bigger. A race war is necessary to cleanse America of racial infirmities and it is time to begin preparations for this war.” Is this speech illegal? According to U.S. Supreme Court opinion not unless the speech is likely to produce or does produce imminent lawless action. Absent this then there is no crime although some who hear the message may be afraid.
The mere apprehension of harm is not sufficient enough in this context to justify the interruption of the speaker. If apprehension of being harmed was the standard, then you have necessarily silenced a segment of the population from speaking on an issue whereas others may continue to do so. So the NAACP would be permitted to speak in the same stadium on the issue of race for no other reason than their message is not as controversial and less likely to intimidate people. However, the Klan can’t speak at the same stadium on the issue of race relations because their message is more controversial and likely to frighten some of its listeners. This is view point discrimination. It cannot be permitted to let some points of view be heard on a particular issue while silencing others. The First Amendment requires the state permit all sides of the issue to be heard not just some.
Now of course if you say it is the advocation of the use of illegal activity then this still runs afoul the First Amendment. This is content discrimination.
However, your examples are more of the specific threat type an area where the U.S. Supreme Court has given the state great latitude.
As Jimmy1 has very aptly pointed out, political speech with the intent to terrorize somebody is permitted. Someone who advocates a race war, “ethnic cleansing” of the US, whatever, may do so.
What you cannot say to your listeners is “I have a gun in my hand, and I will shoot you if you don’t leave the US and go back to Africa.” The immediacy of the threat takes it outside First Amendment protection.
So there are two questions. First, is a burning cross, even one meant to intimidate, political speech? IMO, yes.
Second, if it is political speech, is it advocacy of a threat, or is it an immediate threat? There is where, again IMO, the issue of whether a burning cross regularly signals the start of violence needs to be addressed.
How is burning a cross more of a threat than a leader saying in a speech “I have a warning for the blacks, step out of line and you will die”?
Sua
Huh. I guess this gets back to my question on the first page about “generalized intimidation.” I hear folks now saying that it’s legal to advocate unlawful violence against a group of individuals, as long as that advocacy isn’t likely to result in immediate lawlessness. But the “true threats” quote from the previous page stated:
Although I’m not clear where this definition comes from, to my untrained eyes it looks like it’s from a previous, accepted Supreme Court decision. Is this right? And this passage is saying that true threats are not constitutionally protected, right?
If so, it looks to me like this passage is expressly saying that advocating violence against a group of individuals is not protected speech, if the point of that advocacy is “to communicate a serious expression of an intent to commit an act of unlawful violence” to that group of individuals.
If so, doesn’t that mean that I can’t say, in a location where black people will hear me, that I plan to start a race war against black people because of my politics? Though that might be political speech in part, it looks like it fits all the criteria for a “true threat”: I’m meaning to communicate a serious expression of an intent to commit an act of unlawful violence to a particular . . . group of individuals.
NOTE:
I see two arguments going on here: one is about whether such threats are protected speech based on their political content, and the other is about whether the courts should determine whether a reasonable target of such threats would be terrorized by them. There’s also the side issue about whether a cross-burning at a rally with no nonwhite attendees is a true threat, but since everyone here seems to agree that it isn’t, we don’t have much of an argument there.
I mention this because the thread seems to be drifting back and forth between these two points, and I want to make sure we keep them distinct: they seem like separate issues to me, and the question of whether we should evaluate the competence of a threat’s issuer to carry the threat out, cannot be answered by addressing whether such threats are protected political speech.
Daniel
Actually you are allowed to advocate a race war, say, so long as you are not advocating that your listeners start the war right now.
“We must have a race war. We will have a race war. We will drive the [insert epithet] out of our country. All of you must stockpile supplies and prepare.” - permissible.
“We must has a race war. All of you get out of your seats, pick up your weapons, and start shooting [insert epithet].” - not permissible.
Sua