Do laws against cross burning violate the free speech rights of the Ku Klux Klan?

[doreen]

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.

I understand that actions can be seen as speech. What I don’t understand is why speech in the form of actions would be have to be exempt from content-neutral laws regarding the action.Sure, if the city allows me to burn furniture as part of a performance on public property,they’d have to allow a cross burning. And if they allow my performance based on a permit, the same standards would have to be used in deciding whether to grant the Klan a permit.But if there’s a general law against burning objects on public property, with no exceptions for Tennessee Williams performances or victory bonfires, why would cross-burning have to be exempted?

[wring]

I’m not certain that ‘generally speaking’ cities write their statutes in the way that you think.

There’s laws against burning other people’s property, there’d be laws against burning trash (in certain communities), etc. But, I’m not certain that there would exist (generally) a law saying ‘you cannot burn anything on public property’. Certainly many communities allow for grills, cigarette smoking and the like on public grounds.

and of course the short answer is, SCOTUS has declared flag burning specifically as a ‘method’ of speech.

I can think of quite a few examples of ‘public burnings’ - you mentioned bonfires (often allowed, with restrictions, safety measures etc) the burning of draft cards was a form of protest in the 60’s, we heard about ‘bra burning’ (tho that may have been more metaphorical), and there’s a delightful memory of Disco records being burned as well.

[minty_green]

*Originally posted by doreen *
But if there’s a general law against burning objects on public property, with no exceptions for Tennessee Williams performances or victory bonfires, why would cross-burning have to be exempted?

Ah, but that’s not the statute at issue in this case. The actual statute singles out a particular item that may not be burned on public property or the property of another, wholly because of the message that the act conveys. If these guys had been busted under a statute that prohibits burning stuff generally, there would be no constitutional problem.

This is an interesting case. On the one hand, you have a statute that clearly targets a particular type of disfavored speech, which is something the government can only do if it shows a “compelling state interest” and the law does not suffer from overbreadth.

Compelling state interests are next to impossible to demonstrate. I suspect that eliminating criminal threats against citizens based on their race is a pretty compelling state interest, however. But it seems to me that this statute may well be overbroad because of the provision that the act of burning itself is prima facie evidence of intent to intimidate. In other words, the law presumes that a person who burns is doing so for purposes of intimidation. It seems wrong to me to have a legal presumption that the act is within the narrow class that demonstrates a compelling state interest. It’s a bootstrapping provision, and I don’t think that should be allowed to stand, constitutionally speaking.

On the other hand, there is no First Amendment privilege to go around intentionally intimidating people with implied threats of violence. So there’s also a pretty good argument that the Virginia court simply got it wrong.

[SuaSponte]

*Originally posted by minty green *
But it seems to me that this statute may well be overbroad because of the provision that the act of burning itself is prima facie evidence of intent to intimidate. In other words, the law presumes that a person who burns is doing so for purposes of intimidation. It seems wrong to me to have a legal presumption that the act is within the narrow class that demonstrates a compelling state interest. It’s a bootstrapping provision, and I don’t think that should be allowed to stand, constitutionally speaking.

On the other hand, there is no First Amendment privilege to go around intentionally intimidating people with implied threats of violence. So there’s also a pretty good argument that the Virginia court simply got it wrong.

Nah, there really isn’t a good argument that the court got it wrong. The presumption that a person burns a cross for purposes of intimidation is unsupportable.

Look at this scenario: A bunch of Klukkers, fashionably attired in bedsheets, wander off deep into the woods (either on their own private or public property - or even on someone else’s property - it really doesn’t matter), and light up a cross. There isn’t a Catholic or minority member within miles. Self-evidently, there is no intent to intimidate; there’s no one to intimidate.

I don’t see how the law can reasonably read into a change of location for the same act automatically changes the intent of that act.

Sua

[tomndebb]

I don’t see how the law can reasonably read into a change of location for the same act automatically changes the intent of that act.

You are saying that an act which has been demonstrated both by historical precedent and the claims of many of its perpetrators in the course of 130 years to be intended as a means of intimidation cannot be perceived to have that intent when it is carried out on the property of the intended victim?

Mind you, I think that in the Black case the law was improperly applied. And, certainly, the cases of Messers. O’Mara and Elliot do not make a resounding case for such laws, either.

While they were attempting to make this “expression” on the property of one of the traditional objects of intimidation.
From the appeals court record:

The substantive facts are uncontroverted. On the evening of May 2, 1998, defendants, together with “approximately fifteen individuals,” were “consuming alcohol” at the Virginia Beach home of David Targee. When defendant Elliott expressed unspecified “complaint[s] . . . about his neighbor,” James Jubilee, and his desire to “‘get back’ at him,” someone “suggested that they burn a cross in [Jubilee’s] yard.” In response, Targee and defendants immediately constructed a crude cross in Targee’s garage and proceeded in Targee’s truck to the Jubilee home. Elliott “handed the cross” to defendant O’Mara, who erected and ignited it on Jubilee’s property, and the three returned to Targee’s residence. The respective records do not clearly specify Jubilee’s race.

I note in looking over other versions of the incident that the defendants appeared to have been mad at Mr. Jubilee as a neighbor and only seemed to choose the cross-burning as an afterthought because he was black. (And the drunks couldn’t come up with a cross taller than two feet high or keep it lit. Mr. Jubilee did not see it burn and was only able to reconstruct that it had been an attempted “cross burning” after the fact.)

Still, I would think that the location of a cross-burning would have an effect on whether it was protected speech or it was a form of intimidation.

[SuaSponte]

You are saying that an act which has been demonstrated both by historical precedent and the claims of many of its perpetrators in the course of 130 years to be intended as a means of intimidation cannot be perceived to have that intent when it is carried out on the property of the intended victim?

Nope, that’s not what I’m saying. I’m saying it cannot be automatically perceived by the law as being intended as a means of intimidation.
Certainly, that is how I would perceive it. Unfortunately, if an act is amenable to other interpretations, the law cannot impute one intent to it automatically.

Sua