The 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.