Column: Hanging Nooses: Hateful Crime Or Protected Speech? (New York Law Journal)

The widely publicized controversy involving the hanging of nooses outside a school in Jena, Louisiana has been followed by a spate of noose incidents here in New York, including the hanging of a noose on the door of an African-American member of the Teacher’s College faculty. Reports of these incidents routinely prompt police investigations, and the New York Legislature now is moving to amend the Penal Law to encompass the hanging of nooses.

Not surprisingly, there has been little public discussion about the extent to which the display of nooses may be a form of expression that implicates the First Amendment. The Supreme Court, however, has twice in recent years decided cases involving vile race-based expressive conduct — namely, cross burnings — and those decisions establish the legal framework for thinking about the criminalizing of noose displays.

Cross Burnings in St. Paul

In 1992 the Court, in R.A.V. v. City of St. Paul, Minnesota,¹ ruled that a municipal cross-burning ordinance violated the First Amendment. The ordinance provided that

[w]hoever places on public or private property a symbol, object, application, 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. (Emphasis added.)

The case arose after the unnamed juvenile petitioner and several other teenagers were charged with burning a cross (cobbled together from chair legs) inside the yard of a neighboring black family. The trial court had dismissed the charge on First Amendment grounds, but the Supreme Court of Minnesota reversed. In doing so, the court rejected the claim that the ordinance impermissibly targeted speech based on its content because it was a narrowly tailored means of accomplishing “the compelling government interest in protecting the community against bias-motivated threats to public safety and order.”

In an opinion written by Justice Scalia and joined by Justice Thomas — the sole African-American member of the Court — the Supreme Court reversed and struck down the cross-burning ordinance. The critical consideration for the Court was the ordinance’s singling out of cross-burnings and other acts undertaken “on the basis of race, color, creed, religion or gender,” which in the Court’s view constituted impermissible content and viewpoint discrimination.

At the outset of his analysis, Justice Scalia explained that government restrictions based on the content of speech (on a specified topic, for instance) presumptively violate the First Amendment. Nonetheless, he noted that the Court has recognized a few categories of speech that are “of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” These categories include libel, obscenity, and “fighting words” (i.e., conduct that itself inflicts injury or tends to incite immediate violence).

The Minnesota courts had construed the St. Paul ordinance to reach only “fighting words” and thus a category of speech that could be proscribed entirely, but that did not mean the ordinance survived First Amendment scrutiny under Justice Scalia’s analysis. That was because, under a seemingly dramatic departure from precedent, the Court ruled that these proscribable categories of speech are not “entirely invisible” to the First Amendment and thus remain subject to other First Amendment protections. Specifically, under the Court’s analysis, restrictions on categories of speech that can be barred entirely (like “fighting words”) nonetheless cannot single out speech within those categories on the basis of its content or viewpoint. Thus, while the government can proscribe libel entirely, it cannot proscribe only libel about the government or only libel critical of the government.

Turning to the St. Paul ordinance, the Court concluded that, although the ordinance reached only “fighting words,” it nonetheless was impermissibly content-based because

the remaining, unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas — to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality — are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.

Not only did the Court find the ordinance to be impermissibly content-based, it also held that it unconstitutionally singled out speech on the basis of viewpoint:

In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words — odious racial epithets, for example — would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or gender — aspersions upon a person’s mother, for example — would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers’ opponents. One could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.

Finally, lest there be any confusion about where Justice Scalia (and Justice Thomas) stood with respect to cross burnings, the majority opinion closed with the pronouncement that “burning a cross in someone’s front yard is reprehensible” but colorfully added that “St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”

Reversing Course in Virginia

Four years ago, the Court again took on a cross-burning prohibition in Virginia v. Black.² At issue in Black was a Virginia state law that made it a felony 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.”

The controversy before the Supreme Court arose out of two cases consolidated for review. In the first one the defendant Barry Black had led a Ku Klux Klan rally that featured vituperative language about blacks and Mexicans and culminated in a cross burning that was witnessed by a sheriff’s deputy and a woman who testified that the burning made her feel “awful” and “terrible.” In the second case the defendants Richard Elliott and Jonathan O’Mara burned a cross in the yard of an African-American neighbor who four months earlier had complained to Elliot’s mother about Elliot firing weapons in her back yard. All three defendants were convicted, but the Virginia Supreme Court vacated the convictions, ruling that in light of R.A.V. the cross-burning prohibition was unconstitutional on its face because it impermissibly criminalized speech on the basis of its content in that it “selectively chooses only cross burning because of its distinctive message.”

In an opinion written by Justice O’Connor, the United States Supreme Court reversed, distinguishing the ordinance at issue in R.A.V. Justice Scalia joined the majority opinion, while Justice Thomas concurred in the Court’s conclusion but not its analysis.

In contrast to the R.A.V. opinion, which opened with a detailed discussion of First Amendment doctrine, Black starts with a review of the history of cross burnings dating back to the 14th century and encompassing their use by the Ku Klux Klan “to communicate both threats of violence and messages of shared ideology.” From this history, the Court concluded that “while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross is used to intimidate, few if any messages are more powerful.”

With this by way of background, Justice O’Connor reiterated the analysis from R.A.V. that certain categories of speech are largely exempt from First Amendment protection, including (in addition to things like “fighting words”) what are known as “true threats.” According to the Court, “true threats”

encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.

Given the history of cross-burnings, the Court found that cross burnings often qualify as true threats. In light of this, the question before the Court was whether the Virginia law, like the St. Paul ordinance, was nonetheless unconstitutional because it was content-based in that it singled out a specific form of “true threat,” namely cross burnings.

The Court concluded the Virginia law was different. According to Justice O’Connor, the Court in R.A.V. did not hold that “the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech” (emphasis in original). Rather, she quoted R.A.V. for the proposition that “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class.”

What follows from this obtuse formulation is that, while it is impermissible to ban only obscenity that is about politics, it’s permissible to ban only that obscenity that is the most obscene. This is so because obscenity is proscribable because of its obscene content. In other words, since the obscene content of obscenity is the “very reason” why it can be banned as a category of speech, the government remains free to make distinctions within that category so long as the distinctions are based on the obscene content of the speech.

Applying this to the Virginia statute, the Court upheld the statute “because burning a cross is a particularly virulent form of intimidation.” As Justice O’Connor explained, “[J]ust as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Cross burning was just such a form of intimidation and thus could be singled out, R.A.V. notwithstanding.

Implications for Nooses

Given the gruesome history of lynchings in this country, courts might readily conclude that the hanging of nooses is comparable to cross burning so as to make Virginia v. Black and R.A.V. v. St. Paul directly applicable to laws banning the display of nooses. If so, under Black the government would be free to criminalize the hanging of nooses for the purpose of making a “true threat.” Under R.A.V., however, the government could not criminalize the hanging of nooses to intimidate a particular group –- such as blacks — as this would qualify as impermissible content discrimination.

Footnotes

¹ 505 U.S. 377 (1992).

² 538 U.S. 343 (2003).