I should think that threatening speech could be made illegal. In fact, the crime of assault consists of a threat, as a opposed to battery, which is the actual striking of anouther person.
Then, we have the flag burning precedent. I find both cross burning and flag burning to be repulsive, but why should one get more free speech protection than the other?
Another issue might be whether cross burning can be presumed to be a threat against specific person or people. I suppose it might be regarded as a mere statement of philosphy. However, the quote above talks about banning cross burning, “when its intent is to frighten the victim.” I think it should be Constitutional to ban cross burning, as long as the prosecution is required to prove that its intent was to frighten specific individual or individuals.
However, if the law merely presumes that the intent is to frighten Blacks in general, then it may well be protected speech.
I think we need the text of the law here. Anyone got a link? The news story isn’t clear on how specific the law is in terms of defining “threatening.”
I would think it very obviously depends on what the law says. If I want to burn a cross in my back yard and sing about the wonders of being white I should be allowed to do so. If I want to burn a cross in public view and proclaim my intent to kill darkies, that’s clearly an incitement to criminal behaviour.
I don’t know how the laws have been written or interpreted, so I’m just throwing out the way that I would make the decision if there was no precedent.
I would link the threat to proximity.
If some guy is out torching crosses on his back 40 (or even in his back yard) to show his contempt for blacks, Jews, and Catholics, even if accompanied by “hate speech,” I would give him First Amendment protection.
If the guy is burning the cross for the express purpose of terrorizing a black person/family/community (accompanied by threats to move out, quit a job, stay away from the polls, or “stop acting uppity”) then I would see that as a threat on a person with no protection provided.
I don’t know how the laws have been written or interpreted, so I’m just throwing out the way that I would make the decision if there was no precedent.
I would link the threat to proximity.
If some guy is out torching crosses on his back 40 (or even in his back yard) to show his contempt for blacks, Jews, and Catholics, even if accompanied by “hate speech,” I would give him First Amendment protection.
If the guy is burning the cross for the express purpose of terrorizing a black person/family/community (accompanied by threats to move out, quit a job, stay away from the polls, or “stop acting uppity”) then I would see that as a threat on a person with no protection provided.
I can’t imagine that it [bold] wouldn’t [/bold] be protected, assuming the person did it on their own property, front yard or back.
How could the state tell you what is OK to burn and what isn’t? Maybe I have an old wooden cross that I want to get rid of, so I burn it in the yard. Is this different from having an old wooden triangle that I want to burn?
As detestible as I think cross-burning is, I’ll have to say that – assuming no other laws are broken – that yes, it should be protected as free speech.
Obviously, if some nut named Peter puts a burning cross on Joe’s front lawn, Joe has every right to bust Peter for trespass. But if Peter’s burning his own cross on his own property and is compliant with the local fire codes, I can’t see a reason why he shouldn’t be allowed to do so. Saying that it’s hateful speech is not an excuse; and besides, there have been traditional, non-racist uses for burning crosses. How do we know Peter’s not simply getting in touch with his Scottish roots?
Freedom of speech is meaningless if we only allow it for acceptable speech.
Governments routinely regulate the burning of anything (fire hazards, stuff going into the ozone etc.).[old man voice on] Why, when I was a whipper snapper, we burned our trash! yep, in trash cans in our back yards, and we liked it [/old man voice].
So, it makes sense to me that ‘burning’ in public is regulated in some way.
I think toms got the right start (ie my property, back 40 protected, on neighbor’s lawn, not), but that leaves the question open about ‘public property’, as part of a planned protest. And, well, I find that short of a specified target (ie burning the cross while chanting ‘down w/the brothers’ or something), it should be guarded free speech.
Otherwise, I fear that we’d have all sorts of subsets (I find it intimidating to have people burn charcoal, ‘ashes to ashes, dust to dust’ and all that - made up example). Yes, it’s a religious icon, yes, some folks will be very upset, etc. We don’t have (as far as I know) a constitutional right to ‘not be upset’.
An interesting note on this case is that Black was represented by David Baugh, a black man. You can imagine the uproar that caused in the African-American community here in VA.
The case of Black looks like a clear case of the (presumably local) government overstepping their bounds. I would guess that the prosecutor interpreted “other” to mean that since the owner only gave permission was was not the active agent of the burning, the government was within the scope of the law in bringing charges.
In that case, I think the prosecution went too far and the inclusion of a black lawyer in the defense is in the long tradition of Jewish ACLU lawyers defending the roghts of the Klan to march in Jewish neighborhoods and of the defense of the soldiers in the Boston Massacre by Adams.
The law is not about popular causes.
In the cases of O’Mara and Elliot, where they were trespassing with the intent to terrorize–I see no reason to think the law is overbroad or too vague to handle that situation.
I am not at all sure why these two cases (each founded on very different circumstances) are being considered together.
The majority analysis by the Virginia Supreme Court simply ignores the fact that any reasonable person is fully justified by the history of cross-burners in being seriously alarmed and realistically threatened by having a cross burned, either on that person’s property or in public view of it. Ignoring this fact, the VSC reaches the conclusion that although “bigotry is repugnant,” cross-burning is protected political speech. Duh! Can any of these schmoes read a history book?!?
I agree that one may stand up at a public rally and spout whatever racist nonsense one believes about the inferiority of Blacks, Jews, Mexicans, Catholics. That is a First Amendment right.
You want to march in Skokie? Fine, nobody has to come to your parade.
But having a cross burned outside your front door – on your lawn-- doesn’t give you any choice. And even at those rallies and parades, a direct incitement to violence (“Let’s kill us some [insert racial epithet here]!”)–if said under conditions that make it imminently likely that such violence will occur–is illegal. The Supreme Court hasn’t gotten all namby-pamby on that one. The enforcement of such rules has resulted in the prosecution of Lemrick Nelson, among others.
When bigots in hoods burn crosses on your front lawn, only a very very UNreasonable person would not be scared as hell. The action itself reeks of threat. It promises imminent bodily harm. First the cross, then your house, it says. Even giving it the most generous interpretation, it promises future harm in a few days, in a week, in a month. We have no problem with prosecuting persons who send written threats to others–why should we have any problem making such actions criminal simply because a chilling symbol of such bigotry is the medium used to deliver the threat?
These are the same people who blew up four little girls in a church in Birmingham–maybe if those bastards had been locked up for their stalking and harassment and assaults in the form of cross-burning BEFORE they believed they could do anything they wanted with impunity, those four girls would be alive today.
I would have thought that the Virginia state courts would have ruled based on the Virginia Constitution, whereas SCOTUS would apply the US Constitution. Could SCOTUS overrule a state court on this matter? Where am I going wrong?
I seem to remember a case a year and a half or so ago where the Supreme Court ruled 5 to 4 that the state court had interpreted the law wrongly. Or something along that line. It seems that if the Supreme Court majority wants to do something, a way can be found, often by means of the Interstate Commerce clause or the Equal Protection clause.
If they decide my way I’m happy. If they decide against my way they are bunch of bums legislating by judicial fiat who should be thrown out forthwith!
And I think that burning anything on your own property shouldn’t be the subject of “hate crime” legislation. It seems to me that a threat, to be the subject of legal action, should be immediate and against a specific target and made by someone with the means and intent to carry it out.
As is often the case, the difficult senarios lie somewhere between “your own back 40” and “a black family’s front yard.”
What if a black family moved into a traditionally white neighborhood, and their KKK neighbors burned a cross in the KKK’s member’s own front yard? If not protected by any speech, would that be a threat in and of itself? What if there was a sign next to it that said “We would never, ever hurt you, but we sure wish you would leave.”? Would it matter if the cross faced the black family’s yard or if it faced the street?
Public property is also sort of a grey area. I think we need to be careful about suggesting that the KKK can burn flags only in their own backyard: speech that has to be hidden is not very free: saying “you can think whatever you want, but you can’t admit it in public” makes me uncomfortable.
State courts can use their state constitution and the federal constitution when deciding consitutional questions. Remember that states may decide that their constitutions proved more expansive protections than those found in the federal constitution. If the state supreme court bases their decision solely on their state constitution, then the US Supreme Court won’t hear the case. However, when the state court used federal constitutional principles, as they did in this case, the US Supremes are still the final decision makers.
I’ll try to remember to look for an example later, as I believe that there is a commonly cited New Jersey case where their supreme court based their decision solely on the NJ consitution and the federal system wouldn’t second guess them.
There are at least a couple states that routinely word-process into their decisions text along the lines of: “We decide this case based on state law, looking to federal cases solely as an aid in our analysis,” in an apparent effort to forestall federal review.
A state constitution cannot remove federally-guaranteed rights, but it certainly can provide more rights than the Constituion allows.
I don’t really see how someone can be banned from burning their own cross on their own property if other items may be burned. However, I’d be surprised if I were to find out it was legal in Virginia to burn old furniture on public property. And if it’s illegal to burn furniture on public property, I don’t see why it should be legal to burn a cross, or why a special law should be needed.
if you were burning a table on public property in order to get rid of it, or as part of a ‘gee, I wonder how fast I can run’ gig on a dull Saturday, you’d be correct about the public burning.
However, if you were to be burning the aforementioned table as part of a street theater performance in an avant guarde production a Tennessee Williams play, it would be seen as a ‘different’ action.
Hence the issue about the cross. If one were to be burning it (or the flag or a picture of the Pope), as **part of ** a ‘speech’ , presentation of ideas, it becomes a different thing.
December, you have to remember that all courts, Federal, state, or village, rule according to the law – and that does not mean “according to statute” in this construction – it means according to the concept we all share (or are supposed to) of justice under certain procedures according to the rulings of the common law and the pertinent enacted measures.
In every case decided in the United States, the U.S. Constitution is the supreme law of the land, as specified in its own Article VI. It therefore supersedes any rule, regulation, statute, or treaty where they come into conflict – and any court is obliged to rule in accordance with it. To be sure, it’s rare that a ticket for failure to keep right or similar petty offense will ever invoke any constitutional guarantee, but the judge in the traffic court is equally obliged as the U.S. Circuit Judge to rule in accordance with the U.S. Constitution.
As Robb noted and Bricker amplified, a state court ruling based solely on its state constitution has (at least it hopes) avoided raising a “federal question” that could mean an appeal to Federal courts/the U.S. Supreme Court. For this reason and others many state constitutions restate material from the Bill of Rights in their own text as well. But one needs to view the U.S. Constitution as being a presence, even if not invoked, in every court case.