burning anything on someone else’s lawn/property shouldn’t be protected “speech.” Want to burn a cross? Do it on your own lawn. Since when does freedom of speech involve trespass, vandalism, and potential arson?
Okay, a hypothetical case:
A KKK member has a house next door to a black family (I told you this was hypothetical…stay with me). The KKK member burns a cross on his own front lawn, in the company of a large gathering of hooded friends. This, you believe, should be considered merely offensive, but not threatening to the black family next door?
So free speech means agreeing with you. Your screen name’s just a coincidence, right?
Diogenes got it right.
Setting up and burning a cross on someone else’s lawn to terrorize them is not speech, it’s arson, among other very nasty things. Setting up and burning a cross on your own property as a statement is speech.
Yes.
And by the same reasoning, the hypothetical black family is free to hold a Nation of Islam rally in their yard (personally, I would advise against holding these events simultaneously).
There could a city ordinance prohibiting those rallies, or fires of that size.
Well we all know there are limits to free speech. I believe most states have laws against threatening to physically harm someone. Most of us tend to think of cross burning as an activity done simply to intimidate others. This isn’t the case as the KKK sometimes burns crosses at their own private gatherings where there’s no chance of intimidating anyone. While burning crosses has been used to intimidate I certainly don’t think that is the only signifigance. Banning the burning of crosses on private property is a gross violation of free speech. Are we going to ban Confederate flags on clothing next?
Marc
We all agree that burning a cross on someone else’s lawn is arson and tresspassing and thus illegal.
But I think the question is: Is it MORE ILLEGAL (and should it have a stricter penalty) to burn a cross on someone’s yard than to burn a giant circle/star/scarecrow on someone’s yard?
The fact that it is a cross being burned on someone else’s lawn makes it a hate crime (and arson). A circle would be arson. Although it would not be illegal to burn a cross on your own lawn (across the street from a black family), I think the hate crime thing would still stick. I mean, we have freedom of speech, but you can’t go up to a guy and say, "I’m going to kill you, you fucking N****r. It falls into a different category. Any lawyers out there have an opinion on this???
However they decide, I hope the SCOTUS makes a very narrow decision. I, personally, do not believe that they should have allowed these two cases to be joined by the state, as the facts of each case are widely dissimilar.
In the first case, the idiot kids were drunk and talked themselves into “lighting a cross” to show that they were mad at their neighbor for telling them, on an earlier occasion, that he was upset that they were firning guns on their property. (I do not know whether the property is urban or rural). They waited until everyone went to bed, then went over and rather unsuccessfully tried to burn a couple of sticks wired or nailed together. When the neighbor saw it the next morning, his immediate reaction was that someone had simply thrown trash in his yard and he did not even know that it was a “cross” until he went out to move it and discovered that the sticks were fixed together.
Now, this may, indeed, have led to a feeling of intimidation (as might simply living next to rowdy young drunks who like to shoot weapons in a residential neighborhood). Whether the “race” angle was clearly present throughout their association or whether the kids only began using racial epithets when they were drunk and angry, I do not know. While I support the prinicple that burning a cross on someone else’s lawn is clearly a crime of intimidation, the facts of this case seem to indicate more alcoholic haze than racist intimidation.
In the second case, the state used what I would consider dishonest logic to even bring the complaint. Had the cross been burned by the property owner, there would have been no case. Since Barry was not the property owner (even though he appears to have had the owner’s permission), the state was able to nail him for burning the cross on someone else’s property.
I support laws that forbid direct intimidation (standing on the street outside my house screaming that I will have to move is intimidation). I do not support laws that forbid one to express oneself, even if the expression is hateful. (Standing in a field burning a cross and chanting “White Power” is hateful and people may find it intimidating, but it is not an action directed at a specific person for the purpose of forcing them to leave their home or job or school.)
There are already laws that cover excessive noise, improper burning, rioting, and direct threats. Going after teen drunks who can’t even accomplish their intent or going after ignorant people who are frightened that they are losing some lifestyle that they have never had does not seem to be the appropriate way to reduce hate crimes.
I’m pretty certain the first would violate the right of assembly.
But the fires thing certainly works.
As I’ve pointed out in other posts about this issue, Barry Black’s attorney is a black man, David Baugh. He has taken a tremendous amount of heat from the black community here in VA on his decision to represent a Klan member.
My impression when I read the cases awhile back was that it is not more illegal. The action insofar as it could be breaking other laws (e.g., arson, trespassing, etc.) does not, by breaking those laws, fall into the realm of a hate crime.
I think it’s an interesting question. I tend to side with Diogenes – that the first case should not be protected speech, whereas the second should be protected – but I’m not certain.
Basically, burning a cross is symbolic, and should be protected just as much as other symbolic communication is, whether that other communication be newspapers, spoken word, or paintings.
However, there are classes of speech/communication that are not protected. I can’t libel someone, either by writing, “Senator John was caught in bed with his intern Sally!” or by (I think) Photoshopping a picture so it looked like the Senator and the intern were in bed together.
Similarly, if I threaten physical harm to someone, my speech is not protected.
Now, it’s not necessarily the words, “I’m gonna beat your ass,” that are the problem. I couldn’t say it in piglatin, or in Mandarin, or in a rebus either. If i understand correctly, if I intend to communicate a threat, then I’ve violated the law.
The question, then, is whether a person who burns a cross intends to communicate, “I’m gonna beat your ass,” or something similarly unprotected.
If you burn the cross in someone’s yard without their permission, it seems very clear that that’s just what you’re trying to communicate. Whether you’re drunk at the time is irrelevant: drunkards don’t get special dispensation to communicate threats.
However, burning a cross in your own yard (or a friend’s yard) is a much more abstract threat, if it’s a threat at all. There may be other ways in which you can construe it as unprotected speech – maybe it counts as inciting people to violence? - but I think this would be much harder to prove.
Daniel
But that case went on to say that a statute is unconstitutional if it prohibits otherwise prohibited speech on the basis of the subject the speech addresses. Had Virginia charged the defendants only with trespassing, there would be no doubt they could do so. However, they charged them with violation of a statute outlawing cross burning. So Virginia was, arguably, charging the men based on the content of the “speech” just as St. Paul was charging the petitioners in R.A.V. with violation of a their Bias-Motivated Crime Ordinance.
I think it’s important to separate the issues which are getting a little muddled. The men who went on the property without permission broke the law against trespassing. But the fact that they broke that law doesn’t necessarily mean that they can be charged under another statute. The fact that the men trespassed does not mean Virginia can charge them with whatever they want without regard to constitutional limitations.
Yes. But if the large gathering of hooded friends starts shouting, “We’re going to fucking kill you!” there has been illegal activity.
At what point does the communication become a sufficiently unambiguous threat that it’s no longer protected?
If the gathering lynched an effigy of a black man, would that be protected?
If the effigy wore clothes similar to the next-door neighbor, would that be protected?
If the effigy wore a sign with the next-door neighbor’s name, would that be protected?
If the gathering had a clock that counted down the minutes until sundown, chanted, “wait till sundown,” and burned crosses while leering over the property line, would that be protected?
These are honest questions. I guess what I’m wondering is, is there a bright line between protected but meant-to-intimidate communication, and unprotected meant-to-threaten communication? I can’t figure out what that line would be.
Daniel
Of course, whether the complaint is justified can only be decided by the courts.
Free speech in the past failed to protect the communists or even some left-wingers from repression and recently a man was jailed for making a bar room joke about: “…and he shall speak from a burning Bush”, so if your not going to protect the free speech of true political dissenters and people who make innocous jokes, you can’t justify protecting the free speech of people who try to incite hate agianst others.
Perhaps rather than using the denial of freedom of speech to Communists to justify denying freedom of speech to everyone else, you should be arguing in favor of freedom of speech for Communists.
Sure I believe in freedom of speech for communists, but I do not believe that inciting racial (or any other kind of hatred) should be protected. If they choose to speak like this behind closed doors, then there is no problem but when their “free speech” interferes in the rights of others to live unmolested then the right should not be guarenteed.
Speaking of offense, but Consitutionally protected, personal expression on private property. See http://www.click10.com/mia/news/stories/news-183152020021211-061211.html