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Burning the United States flag in protest is political “speech” protected by the United States Constitution. Texas v. Johnson, 491 U.S. 397 (1989). On the other hand, "fighting words", threatening people with harm, or trying to provoke violence, while it may be “speech” is not protected by the First Amendment. Governments can put reasonable “time, place and manner” restrictions of any speech, as long as the restrictions are not based on government disapproval of the content of the expression.


A brief digression concerning “assault”: in tort law, “assault” is threatening to harm a person. An “assault” can be definied as “any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery.” N.M. Stat. Ann. 1978, § 30-3-1 (B) (1963). If you actually hit the person, that’s called battery. If you threaten to hit someone and then do hit them, it’s called assault and battery. If you threaten with a deadly weapon, it’s called aggravated assault.

(Please note: criminal law definitions are created by statute, and can combine a number of legal concepts together. For example, New Mexico’s criminal “assault” statute defines attempted battery as an “assault”. In tort law, there’s no such thing as an “attempted” tort. Either you threatened someone, or you didn’t. In criminal law, however, attempted crimes have long been viewed as just as much a breach of the peace as crimes actually carried out.)

In assault cases, context makes a big difference. If I say in the chatterbox, “I’m a gonna whup your ass”, that’s not an assault. No reasonable person could credibly believe that I was about to whup your ass. If dannye says to me, “Do that again and I will curse you so bad it will take you years to get a positive XP”, the threat is very credible, but it is not a threat of bodily harm, and therefore is not an assault.

Brandenburg v. Ohio, 395 U.S. 444 (1969)

In 1965, Brandenburg, a Ku Klux Klan leader, invited a Cincinnati, Ohio TV news team a Klan rally. The Klan was filmed burning a cross. Clips were broadcast locally and nationally, showing hooded figures, some carrying firearms.

Brandenburg was prosecuted under the Ohio Criminal Syndicalism Statute, enacted in 1919, in the days of the Palmer Raids and the Red Scare. In 1927, the Supreme Court upheld a virtually identical California statute on the ground that advocating violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Whitney v. California, 274 U.S. 357 (1927).

Subsequent cases, however, had adopted a more refined approach. States were permitted to criminalize speech advocating the use of force or violation of law only when “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. at 447.

The Ohio law was too broad to meet this test. The violence threatened or advocated by the cross-burning was not imminent or immediate. Brandenburg’s prosecution was held to be unconstitutional, and Whitney v. California was overruled.

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

In June, 1990, two teenagers planted a cross on the lawn of a black family in St. Paul, Minnesota and set it on fire. The teens were arrested and charged under a city “hate crimes” ordinance:

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

One of the youths pled guilty, but the other, Robert Anthony Viktora, an self-described white separatist, sought to challenge the ordinance. (Since Viktora was a juvenile, his initials, “R.A.V.”, were used in the criminal prosecution and then later on appeal.) Viktora’s public defenders, Edward Cleary and Michael Cromett, felt obliged to appeal the matter and volunteered their time to do so, and won.

In the 1992 decision in R.A.V. v. City of St. Paul, the Supreme Court struck down the hate-crime ordinance, as a “content-based” regulation of expression. While the Court was willing to accept the State court’s ruling that hate speech falls into the “fighting words” category, the ordinance was restricted to speech which incites violence on the basis of race, color, creed, religion or gender. Racism, intolerance and sexism, however repugnant, are political viewpoints and expressing such viewpoints is protected by the First Amendment. Thus, since the ordinance did not prohibiting inciting violence on some other basis (say, allegiance to the city’s football team) it was content-based, and therefore unconstitutional.

Virginia v. Black, No. 01-1107

(pending in the United States Supreme Court, argued December 10, 2002)

“It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.” Va. Code §18.2-423

The case of Virginia v. Black consolidates appeals by three white men convicted in two incidents. Barry Elton Black of Johnstown, Pennsylvania, was convicted and fined $2,500 for the cross-burning at a Klan rally in southwest Virginia. The case drew national attention when the American Civil Liberties Union hired a black lawyer, David P. Baugh, to defend Black. In the other case, from Virginia Beach, Richard J. Elliott and Jonathan O'Mara were fined $2,500 and sentenced to 90 days in jail for attempting to burn a cross in the yard of a black neighbor with whom one of the perpetrators had a beef. The state high court reversed the convictions, holding “under our system of government, people have the right to use symbols to communicate.”

In arguments described as “unusually spirited” 1, lawyers for the State of Virginia sought to defend the state’s law. Virginia Solicitor William Hurd called cross burning “especially virulent intimidation” and argued: “The message of the Klan is, the law can't help you. We are going to kill you. That's the message of the cross burning." But several justices questioned whether the mere act of cross burning is in itself intimidating. "Suppose you had a cross burning in a play or a movie," asked Justice Sandra Day O'Connor. "Would that be intimidating?" Justice Anthony Kennedy asked, "Any time you burn a cross in Virginia, it's a crime?" Later, Justice Antonin Scalia jokingly commented, "Certainly one cannot ban cross burning in the sanctity of his bedroom." Justice Clarence Thomas had more sobering remarks. “I fear that no other purpose exists to the burning of a cross but to cause fear, and to terrorize the population,” said Justice Thomas, who usually does not speak or ask questions in oral argument. Noting the history of 100 years of lynching in the South, Thomas commented: “This was a reign of terror, and the cross was a sign of that. It is unlike any symbol in our society."

Given the differing factual scenarios in the consolidated cases accepted for review, it makes possible a ruling that sometimes cross burning is protected speech (at a Klan rally on private property) while other times it is assault (such as when the cross is burned in someone’s yard to intimidate or harass that person).

1 William Mears, “High Court Takes Up Virginia Cross Burning Case”, CNN, http://www.cnn.com/2002/LAW/12/11/scotus.cross.burning

I have received several messages asking the same question: what is the need for a special "hate crimes" statute or ordinance if the perpetrators could be charged with assault, trespass, arson, etc.? I'm not sure what the answer is and that is why I oppose "hate crimes" laws. I can guess, however.

One reason might be simplified proof of intent. The St. Paul ordinance is an example: "know or had reason to know" is a lot easier to prove than a specific criminal intent to threaten or harass.

Another reason might be enhanced penalties, and this is certainly the reason for "hate crime" legislation which enchances the penalties for violent crime.

Politics is another obvious reason: it helps the career of the legislator who passes the law and the prosecutor who enforces it, adding the protected minority to his or her coalition of supporters.

The judiciary serves best in our system as a check against political excess of the other two branches. If politics is the only reason for the law, and the law deprives us of fundamental rights (liberty) then the courts should strike the law.

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