Legal Commentary

Great, another post where I get to defend egregious expression.

David Hudson has this essay about attempts in several states to prohibit the display of nooses with the intent to intimidate or harass. (H/T: First Amendment Law Prof Blog). Apparently incidents of noose displays are on the rise. A noose display triggered the mess that was the Jena SIX controversy and a noose was hung (hanged?) outside the office of an African-American professor at Columbia University law fall in the weeks following the visit of Iranian President Mahmoud Ahmadinejad. And it could pick up steam if we continue hearing sporadic stories about hanging effigies of Barack Obama.

Nooses are seen, properly, as "a symbol of the racist, segregation-era violence enacted on blacks. ? an unmistakable symbol of violence and terror that whites used to demonstrate their hatred for blacks." So the logic of banning noose displays to threaten or intimidate follows the logic of banning the burning of crosses to threaten or intimidate, which the Supreme Court upheld in Virginia v. Black. Black rested on the uniqueness of the burning cross as a symbol of the KKK and racial violence and intimidation; Justice O'Connor's opinion for the Court went into exhaustive detail about the social, legal, and political history of the Klan and the burning cross and how that symbol was particularly threatening and intimidating. The state thus could specially ban burning a cross as a threat (provided the burning cross, in context, could qualify as a "true threat" for First Amendment purposes), rather than simply relying on a general statutory ban on threats and intimidation.

A few problems.

First, my thought after Black was "for what other symbols can the exact same argument be made and the exact same history be invoked"? Swastikas immediately leaped to mind. Many state legislators now believe that the hangman's noose is another. The same for hanging effigies, at least if the effigy is of an African-American. It should not be difficult to think of more symbols that carry unique and uniquely threatening or intimidating meaning to different groups or segments of society and thus should be subject to unique prohibits. And, within enough historical and sociological analysis, that ban would be upheld on the same reasoning as in Black.

Actually, a smart politician looking to pander to the anti-flag-burning crowd might be able to use Black. Imagine a law prohibiting the use of a burning flag as anti-veteran or anti-American (say, pro-Islamic Terroris) fighting words, provided the legislator could throw together some social history about how the burning flag is uniquely insulting to, and thus likely to provoke a violent reaction by, a veteran or someone who lost family on 9/11 or in the War. The underlying logic is the same, relying on something unique about the symbol to permit its unique regulation.

Second, what does all of this do to R.A.V. v. City of St. Paul? The Court there overturned an ordinance that, as construed, uniquely prohibited fighting words that targeted categories such as race, sex, and religion. The Court held that the First Amendment prohibited government from making content- and viewpoint-based distinctions in statutes, even with unprotected categories of speech. Government could prohibit fighting words; it could not prohibit only fighting words that targeted certain characteristics. Under a strict application of R.A.V., the ban on cross-burning should have fallen, as well. The state can ban all threats, it should not have been able to ban racially charged or racially motivated threats. The Black Court got around that because of the particular history of the burning cross. But given that the same arguments are being made about nooses (and could be made about lots of symbols, see above), R.A.V. ceases to have much, if any doctrinal force. Sociology and history gets around the force of the precedent.

Third, note the creative attempts to get around the R.A.V. problem. According to Hudson's essay, Connecticut prohibited the displaying of a noose with the intent of intimidating "on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability." See, Connecticut says, the law is not only prohibiting racist threats, but also threats against women or the blind or the disabled. Of course, there is no unique historical or social connection between the noose and lynchings and women or the blind. Was there some history of lynching the visually impaired such that the display of a noose would threaten a blind person (putting aside how she would know a noose was displayed)? How about as to women? Nice try--but if you are going to ban a particular type of symbolic threat, you are going to have to explain what is unique about that symbol. And the noose is unique only to its racial (and possibly national origin, although this is debatable) context.

Finally, what is the future of the hanging effigy as a political protest? This country was founded on hanging effigies (they were a central feature of anti-colonial protests and against laws such as the Stamp Act). Hanging effigies historically have been viewed as rhetorical excess rather than any sort of true threat. Hell, Dean Smith was hanged in effigy in his early days as basketball coach at UNC. But does that calculus change if the person being protested (i.e., President Obama) is African-American, because the effigy of an African-American carries with it the unique history of lynchings? If so, we have a situation in which I can hang Vice President Biden in effigy but not President Obama or Attorney General Holder. I find the notion that one is a greater threat than the other, and thus more proscribable, because of history to be troubling as a constitutional matter.