More Noose Ethics: In Virginia, Affirmation That The Constitution Permits One To Be Racist And Talk Like A Racist, But Not To Do THIS

nooseThe Virginia Court of Appeals took on the case of a man convicted of violating a state law prohibiting displaying a noose with the intent to intimidate, in violation of Va. Code § 18.2-423.2. Actually, Jack Turner did a bit more than that. The noose was hanging from a tree on his property and was on the neck of a dummy appearing to portray a black man. However, the law only prohibits a citizen from displaying a noose in a public place, and this was, his lawyers argued, Constitution-protected speech on private property. Turner was appealing his sentence of five years in prison (all but six months were suspended).

No doubt about it, this was “hate speech”; Turner admitted it.  After his African American neighbor reported the display to police, who questioned him about his intent, Turner initially said that the hanging black dummy was “a scarecrow.” When it was pointed out that he had no garden, Turner elaborated by explaining that he was a racist, and “did not like niggers.”

At the trial, one of Turner’s African American neighbors testified that after seeing the hanging dummy he was especially upset when he saw the dummy because nine African-Americans had been killed in the Charleston South Carolina church shooting earlier in the same day. The neighbor’s wife testified that she now feared for her family’s safety.  After the incident, the parents no longer allowed their sons to walk past Turner’s house, because, they said, they didn’t know what else a man who hanged such a warning was capable of doing. For his part after he was forced to remove the hanging black effigy, Turner continuously hung a Confederate flag in a window  facing his neighbor’s home. Great neighbor.

Hate speech, however, is still protected speech. As the Supreme Court confirmed last session, to be legally prohibited hate speech must constitute a “true threat,” meaning that a 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,” even where the speaker does not “intend to carry out the threat.” Prohibitions of true threats protect individuals from “fear of violence and from the disruption that fear engenders.”

The Court of Appeals didn’t have to exert itself to find that when a man hangs a noose with a black figure dangling from it within view of his African-American neighbors’ house, it indeed constitutes a “true threat.” The Court found the display, after reviewing the history of lynchings in Virginia and the powerful symbolism carried by Turner’s noose, comparable to a burning cross,

“While the First Amendment protects Turner’s right to be a racist and even to convey his racist beliefs to others, the protections of our Constitution do not permit him to threaten or intimidate others who do not share his views. Therefore, when his “speech” took the form of actions intended to threaten, intimidate or place others in reasonable fear of bodily harm, his symbolic “speech” was not entitled to constitutional protection.”

It required a bit more legal analysis to deal with Turner’s argument that his front yard was not a “public place.” First, the court referenced Popehat pundit Ken White’s least favorite popular Supreme Court quote, Justice Holmes’ famous line in Schenk v. United States, 249 U.S. 47 (1919), that falsely shouting “fire” in a crowded theater is not protected speech, writing that “we can think of no principled constitutional reason why that should change if you happen to own the theater and Turner has offered none.” Finally, the Court panel settled on the position that since Virginia laws elsewhere use the term “public property,” “public place” was intended to indicate something else. Citing a law dictionary that defined  “public place” as

“Any place so situated that what passes there can be seen by any considerable number of persons, if they happen to look.”

and quoting a previous Virginia opinion that,

“[t]he use of offensive language on one’s own premises does not constitute a violation of . . . Penal Law unless that person communicates it to the public; for example, shouts offensive language from a window on a public street and thus annoys and disturbs some person or persons who are within hearing of thevoice….”

…the Court of Appeals found that Turner’s ugly symbolic lynching was public enough to trigger the statute.

It would be hard to argue with the decision. I live in Virginia, and this year, for some reason, there were a lot of Halloween displays featuring nooses with dummies of indeterminate race–skeletons, usually—hanging from them. The context of those displays presumably made them non-threatening, and thus Constitutionally protected. Hanging a black dummy the same day as the Charleston shooting, however, seems like an obvious and undeniable threat.

It is a pity that a state has to pass laws criminalizing such flagrantly unethical conduct. Clearly, racists too often can’t manage the task of being good citizens. Their malady undermines their trustworthiness, and the law has to prohibit obviously unethical conduct like Jack Turner’s. Unfortunately, once he hung the noose and the dummy, the law can make him take it down but can’t make him trustworthy again. His neighbors still have reason to fear him, and the threat lingers on.

At least now they’ll  have six months to feel safe.

The opinion, Turner v. Virginia, is here.


Pointer: Fred

4 thoughts on “More Noose Ethics: In Virginia, Affirmation That The Constitution Permits One To Be Racist And Talk Like A Racist, But Not To Do THIS

  1. Damn it, people… any time I try to tell yankees that the South isn’t THAT racist anymore, some asshead has to come and ruin it for EVERYONE. I think the real difference is that the North and West have a lot of people who are a little bit racist, but the South has a few people who are CRAZY racist.

    • The real difference is not the degree of craziness – but that those in the South are sometimes in pisitions of power. Legislators, Judges, Sherrifs…

      There’s plenty of the same kind and degree of racism everywhere. They’re just not usually County Court Judges or on school boards. Yet. They’re not the ancient established families.

      There might even be less racism in the South, due to the greater proportion of minorities of all kinds. I don’t know, I’ve spent little time there, and the thing that struck me was the existence of the underclass in the cities, skin colour wasn’t a reliable guide. I’ve spent no time in rural areas.

      Case in point, in New Orleans…

      In the morning, I’d have a $5 Cajun breakfast that was so huge it was my only meal of the day, and talked with a waitress still on probation going to night school as an EMT trainee (leaving a $7 tip – the same meal would cost me $12 back home), then catch the charter bus to the hotel complex where the Supercomputer conference was being held, Geek Central but plenty on 7 figure salaries plus stock options. My own salary as an adjunct prof was less than they earned in a day, but twice as much as the waitress, that latter an even bigger difference in my view. The difference between not having enough to eat, and having enough is greater than the difference between driving a 1988 Daihatsu and a $450,000 Maserati.

      Without exception, every one of the waitstaff or hotel porters had spent time on probation. Often before age 15. Usually possession of a joint, or posession of drug paraphernalia.

      I didn’t tip generously – I was paying for an education. Show some initial goodwill, and many will open up. People are generally good, even those who have had the rough end of the pineapple. The real assholes I found further up the foodchain. Count your fingers after shaking hands, and beware the Ides of March. Yet most there were just.. people.

      • In my experience, racism in the south is limited mainly to the ‘good ole boys’ (for those who haven’t heard the term, ‘good ole boys’ are a locus of upper-class white corruption and entrenched power hated by most people in the lower and lower-middle classes), and some folks in the country who just haven’t been exposed to many minorities – the former is the real problem, the latter is mainly lack of education and exposure. What other people, particularly people who haven’t lived in the South, see as entrenched racism, I see as entrenched classism, with a few privileged folks looking down on black folks and the poor whites they refer to as “white trash” alike.

        What I found more prevalent in the South, at least where I grew up, was religious discrimination – prejudice not only against LGBT folks but against anyone who wasn’t a Protestant (I grew up Catholic).

  2. People shouldn’t be put in categories by race or sex or age, but by the way they act. You could say things like. “Send her to a sanctuary city, she’s an asshole.” Or “Let’s keep whiny crybabies in the other side of the wall and make them pay for it.”

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