Hate Speech

[cantdog]

The multi-quote is gone...

I think that there are enough laws in almost any country that give powers even to elected governments to suppress opposition.

In England we have laws still on the statute books that could be used to suppress most of the media. For example, our ancient laws on witchcraft and fortune-telling could easily be used against pollsters, TV anchor persons predicting the result of an election, most newspaper pundits, stockbrokers, margin dealers, insurance salesmen, teachers writing school reports predicting examination results, doctors prescribing a drug regime or suggesting an operation...

We have riot laws. Any magistrate can declare that a riot is in progress with an assembly of 3 or more people and authorise the police to use any force necessary to disperse the rioters, including use of the military. Remember Tianamen Square? It could happen in England and be perfectly legal. It won't, but only because our magistrates are reasonable people who work within guidelines. But what if the government appointed unreasonable magistrates? Any political meeting by an opposition party could be declared "a riot" - particularly if attacked by government supporters - and deadly force used to break it up.

Government in democratic societies depends on the consent of a presumed majority of the people.

Og

sorry, cant, i see your drift, but the evidence doesn't seem to support you, to date.

in the US, the gov't is doing quite fine without 'hate speech' laws--some people have simply disappeared forever! 'treason, traitorous acts, and aiding the enemy' work quite well, in a pinch.'

cant: You don't see the aim of these laws as group-centered morality in action?

p: yes i do, and this bunker mentality has not needed 'hate speech' laws to enforce itself. extraordinary measures against what those rox refers to as follows How about you have an identifiable body of citizens who have de facto if not formally renounced their citizenship and are conspiring with foreign enemies to attack the United States in the form of terrorist acts that murder large numbers of our citizens? can and have been justified simply by asserting a 'state of war' or national emergency.


the gov'ts WITH hate speech laws--England, Canada, France, and Germany have not used these against the left and the peace activists.

is it conceivable, yes? is it actual, no.

again, looking at German history, Hitler in the 1930s simply relied on brute force and on legislation--like the Patriot Act-- giving him extraordinary powers. he did not need a law about 'hate speech,' that would apply to a Jew saying, "The Nazi party are scum." the Jew was simply declared treasonous [against the Reich] and non-human.

Putting these two very sensible observations together with Weird Harold's comments about the history:

The best protection against abuse of the kind we are talking about does seem to be the commitment of the citizen to live in a democratic state, to act as a citizen in all the ways one must. Og points out that the presence of this commitment, this citizen consciousness, if you will allow me to coin a phrase, can act to check government excesses and citizen excesses alike. Harold points out that its absence leaves pogroms and the like free rein.

When anarchist utopian communities were attempted, they did all right in the first generation, while everyone in them had joined voluntarily and had a thorough grounding in the theories, and a commitment to make it work, but fell apart without that level of citizen consciousness.

America had a fairly high level of such consciousness in de Toqueville's day, to hear him tell it. People at large knew what distinguished their country from royalist ones, and made appeal to those ideals in developing solutions to crises. And yet, in de Toqueville's day, not only did America's uniquely hopeless Black slave system still exist, but a multigenerational war of extirpation was ongoing, with utter virulence, against the Native population. Harrison and Jackson in particular had had careers in that genocidal war. Neither could women vote, and unions were still conflated with revolt, and there was at that time a backlash against freethinkers in religion.

Some of those passions are still with us today, with perhaps the exception of women's suffrage. Someone who argues that women's suffrage was a mistake is either sunk deep in some theory, like amicus, or simply perceived as a curmudgeonly person who is personally a misogynist; his ideas on the subject are dismissed.

But there are religious grounds for denying civil rights to homosexuals, so that issue does not die, and people mean it when they say it. Slavery is now universally condemned, and the back was broken on the lynching culture, but equality eludes us. The treatment of Natives and immigrants who look different, like Asians and Hispanics and middle easterners, is still characterized by long lists of incidents of a shameful nature.

Withal, America does demonstrably better at these things now than in times past. Someone mentioned that on this thread, and it is true. Kids today, Gen-X and beyond, are much more cool about homosexuals than my generation ever was at the same age. They have internalized a lot of the ideas which in my father's day belonged only to strong feminists. People are irked by PC, but the attitudes which allow it to succeed in the marketplace of ideas are, in fact, due a widespread conviction that racism is and should be socially unacceptable.

 

[Pure]

hate speech. US Supreme Ct. decisions

Efforts have been made by several states to forbid 'hate speech,' and an Illinois law was judged constitutional by the US Supreme Ct. in the Beauharnais decision.

Similar laws, e.g. of the Village of Skokie, in attempting to forbid a neonazi march, have NOT passed muster. Decisions against such laws have been partly distinguished from the Beauharnais decision, but have tended to weaken its applicability.

http://supreme.justia.com/us/343/250/case.html
U.S. Supreme Court

Beauharnais v. Illinois, 343 U.S. 250 (1952)
Beauharnais v. Illinois
No. 118

Argued November 28, 1951
Decided April 28, 1952
343 U.S. 250
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
Syllabus
[start quote]
Over his claim that the statute violated the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment and was void for vagueness, petitioner was convicted in a state court for distributing on the streets of Chicago anti-Negro leaflets in violation of Ill.Rev.Stat., 1949, c. 38, § 471, which makes it a crime to exhibit in any public place any publication which "portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion" which "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy."
Held:

1. As construed and applied in this case, the statute does not violate the liberty of speech and of the press guaranteed as against the States by ihe Due Process Clause of the Fourteenth Amendment. P P. 251-264.

2. As construed and applied in this case, the statute is not void for vagueness. Winters v. New York, 333 U. S. 507; Stromberg v. California, 283 U. S. 359; Thornhill v. Alabama, 310 U. S. 88; and Terminiello v. Chicago, 337 U. S. 1, distinguished. P. 264.

3. Since petitioner did not, by appropriate steps in the trial court, seek to justify his utterance as "fair comment" or as privileged as a means for redressing grievances, those hypothetical defenses cannot be considered by this Court. P P. 264-265.

4. Since the Illinois Supreme Court construed this statute as a form of criminal libel law, and truth of the utterance is not a defense to a charge of criminal libel under Illinois law unless the publication is also made "with good motives and for justifiable ends," petitioner was not denied due process by the trial court's rejection of a proffer of proof which did not satisfy this requirement. P P. 253-254, 343 U. S. 265-266.

5. Since libelous utterances are not within the area of constitutionally protected speech, it is not necessary for this Court to consider the issues raised by the denial of petitioner's request that the jury be instructed that, in order to convict, they must find that the publication complained of was likely to produce a "clear and present danger" of a substantial evil. P P. 253, 343 U. S. 266.
408 Ill. 512, 97 N.E.2d 343, affirmed [end quote]

=========

===
Pure: This decision was distinguished and somewhat undermined by later decisions such as New York Times C. v. Sullivan

The following famous decision about a nazi march in the Village of Skokie expressed reservations about Beauharnais, but argued that its argument regarding violence did not apply. The neo nazi's right to march, in regalia, was affirmed.

Collin v. Smith

United States Court of Appeals,

Seventh Circuit.

Argued April 14, 1978.
Decided May 22, 1978.


http://www.soc.umn.edu/~samaha/cases/collin v smith.htm

[one of the ordinances in question was the following]

[start quote]

Village Ordinance No. 77‑5‑N‑995 (995) prohibits

(t)he dissemination of any materials within the Village of Skokie which promotes and incites hatred against persons by reason of their race, national origin, or religion, and is intended to do so

Id., s 28‑43.1. "Dissemination of materials" includes
*1200 publication or display or distribution of posters, signs, handbills, or writings and public display of markings and clothing of symbolic significance.

Id., s 28‑43.2. Violation is a crime punishable by fine of up to $500, or imprisonment of up to six months. Id., s 28.43.4. Village Ordinance No. 77‑5‑N‑996 (996) prohibits public demonstrations by members of political parties while wearing "military‑style" uniforms, s 28.42.1, and violation is punishable as in 995.

[the Appeals court found several ordinances to be unconstitutional, rejecting the applicability of Beauharnais.]

*1204 The Village's second argument, and the one on which principal reliance is placed, centers on Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952). There a conviction was upheld under a statute prohibiting, in language substantially (and perhaps not unintentionally) similar [FN12] to that used in the ordinance here, the dissemination of materials promoting racial or religious hatred. The closely‑divided Court stated that the criminal punishment of libel of an Individual raised no constitutional problems, relying on Chaplinsky v. New Hampshire, supra, 315 U.S. at 571‑72, 62 S.Ct. 766:

FN12. The actual language in Beauharnais, see id. at 251, 72 S.Ct. 725, invoked specifically the depiction of criminality, depravity, unchastity, or lack of virtue in target groups, and is thus most like the language of 994 s 27‑56(c), discussed Infra.

There are certain well‑defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words . . . . (S)uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Quoted at 343 U.S. 255‑57, 72 S.Ct. at 730. That being so, the Court reasoned that the state could constitutionally extend the prohibition to utterances aimed at groups.

In our opinion Beauharnais does not support ordinance 995, for two independent reasons. First, the rationale of that decision turns quite plainly on the strong tendency of the prohibited utterances to cause violence and disorder. The Illinois Supreme Court had so limited the statute's application, as the United States Supreme Court noted. Id. at 254, 72 S.Ct. 725.

The latter Court also pointed out that the tendency to induce breach of the peace was the traditional justification for the criminal libel laws which had always been thought to be immune from the First Amendment. Id. After stating the issue (whether Illinois could extend criminal libel to groups) the Court turned to Illinois' history of racial strife "and its frequent obligato of extreme racial and religious propaganda," Id. at 261, 72 S.Ct. at 733, and concluded that the Illinois legislature could reasonably connect the strife and the propaganda and criminalize the latter to prevent the former. Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), was quoted, at 261, 60 S.Ct. at 906:

The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit Would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, ([FN13] ) is emphasized by events familiar to all. These and other transgressions of (the limits to First Amendment rights) the States appropriately may punish. (Emphasis added.)

FN13. It bears noting that we are Not reviewing here a law which prohibits action designed to impede the equal exercise of guaranteed rights, See, e. g., 18 U.S.C. ss 241, 245, or even a conspiracy to harass or intimidate others and subject them thus to racial or religious hatred. See Beauharnais, supra, 343 U.S. at 284, 75 S.Ct. 725 (Douglas, J., dissenting). If we were, we would have a very different case.

It may be questioned, after cases such as Cohen v. California, supra; Gooding v. Wilson, supra ; and Brandenburg v. Ohio, supra, whether the Tendency to induce violence approach sanctioned implicitly in Beauharnais would pass constitutional muster today. Assuming that it would, however, it does not support ordinance 995, because the Village, as we have indicated, does not assert appellees' possible violence, an audience's possible responsive violence, or possible violence against third parties by those incited by appellees, as justifications for 995. Ordinance 995 would apparently be applied in the absence of any such threat. The rationale of Beauharnais, then, simply does not apply here.

*1205 Further, when considering the application of Beauharnais to the present litigation, we cannot be unmindful of the "package" aspects of the ordinances and that the "insulting" words are to be made public only after a 30‑day permit application waiting period. Violence occurring under such a circumstance would have such indicia of premeditation as to seem inconsistent with calling into play any remaining vitality of the Beauharnais rationale.

The Village asserts that Beauharnais implicitly sanctions prohibiting the use of First Amendment rights to invoke racial or religious hatred Even without reference to fears of violence.[FN14] In the light of our discussion of Beauharnais ' premises, we do not find the case susceptible of this interpretation.[FN15]

Even if it were, however, we agree with the district court that decisions in the quarter‑century since Beauharnais have abrogated the Chaplinsky dictum, made one of the premises of Beauharnais, that the punishment of libel "has never been thought to raise any Constitutional problem." New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 135 (1964) (criminal libel); and Gertz v. Robert Welch, Inc., supra, are indisputable evidence that libel does indeed now raise serious and knotty First Amendment problems, sufficient as a matter of constitutional law to require the substantial rewriting of both criminal and civil state libel laws. [end quote]

 

[Pure]

note to weird h.

your posting, #98m was excellent! i will comment on part of it.

WH We need to simplify our legal code(s), not expand them with useless and marginally unconstitutional laws.

The US has laws on the books (State, Federal, and local levels) which cover the kind of hate-mongering that is truly dangerous -- incitment to violence and/or conspiracy to commit violence/violate Civil Rights. The RICO statues have been used very effectively against the KKK and Aryan Brotherhood to supress "Hate-Crimes" to incarcerate the leaders as well as the grunts.

Yes, the government can use existing laws and/or less indirect new laws than "hate-speech" laws to to oppress selected groups, but I"m arguing against hate-speech laws -- inroads are being made against (government) human rights abuses in the US without them and the current government (and the forseeable future governments) do NOT need another potential tool for oppression disguised as protection from oppression.

The only "hate speech" definition I would accept as reasonable as the one I described in my first post on this thread:

Quote:
Originally Posted by Weird Harold

A US Law limiting the amplification or electronic transmission of speech advocating or inciting, the violation an individual or group's Constitutional rights should work just fine. (not that that kind of wording would ever get passed because it would severely limit many of the special interest groups interested in passing laws to violate the first and second ammendments; like "Hate Speech" laws. )

To pervert that definition would require changing the Constitution which is just tad bit harder than a bureaucrat (or politician) changing an agency's working definition to suit the public's bogeyman of the moment.
====

Pure: These are excellent points. It has gotten lost in the present discussion how far 'hate speech' of the worst kind [which you, WH, characterize as 'truly dangerous] , namely that obviously directed against exercize of constiutional rights, is already criminalized in the US. See (in my positing just above) the Illinois ordinance re 'anti Negro' publications, affirmed in the US Supreme Ct., Beauharnais decision.

A point of inadequacy, however, seems to be the extension of laws to cover [indirect, non immediate] ]incitement of violence against gays. Here the xian right is vociferous because of its fear that the Bible, and sermons based on it, would be declared 'hate speech.' For example

http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=34671

In effect, a religion celebrating 'love' as the highest virtue, wishes to keep some of its historically hate-mongering texts under constitutional protection.

 

[oggbashan]

Rob posted this on another thread:
I'm remembering a newspaper column I read many years ago.

The writer posited that the human race could be divided into two groups; the 'rememberers' and the 'forgetters'.

The rememberers of one group will go, "We must hurt you because of what you did to us last week."

"Oh yeah?" say the rememberers on the other side. "Well we hurt you because of what you did last month!"

"That was in revenge for what you did last year!" shout the first group of rememberers.

And on and on it goes.

The forgetters forget about all that shit and just get on with their lives.

I'm a rememberer, prepared to forgive, but not to forget.

I remember how delicate democracy and free speech are, and how many people died for them in the 20th Century.

In the United Kingdom in the 20th Century, women were imprisoned and force fed for wanting the vote; the Defence of the Realm Act imprisoned people just for being foreign; Anarchists, Bolsheviks, the various Irish factions, anti-gays, animal rights, Welsh Nationalists all planted bombs to "advance" their various causes; people were killed for being gay, Jewish, black, Asian, white, female and so on; Mosley and his Black Shirts beat up people on the streets of London; politicians could campaign against legal immigrants or advocate draconian punishment for homosexuals and there are still people purveying hatred.

We have come a long way in one hundred years. Some of us still have a long way to go. Remembering what battles have been fought and what sacrifices have been made to defend tolerance and the right to change governments without bloodshed teaches us that we still have to defend the freedoms we have.

The defeat of Hitler and Japanese Imperialism cost the Western democracies dear. The ideas that led to Hitler and Japanese Imperialism are still around, if in a different form, and still need fighting. Some of the people believing in those ideas are among us now, in the United Kingdom, in Europe, and in the US.

Og

 

[Weird Harold]

We have riot laws. Any magistrate can declare that a riot is in progress with an assembly of 3 or more people and authorise the police to use any force necessary to disperse the rioters, including use of the military. Remember Tianamen Square? It could happen in England and be perfectly legal.

Americans might better relate to the Boston Masscre, which was a direct application of the Riot Act -- which in turn led to the Freedom of Assembly clause in our Bill of Rights. (that is if they still learn about the actual causes of the Massacre instead of the historical oddity that the first person killed was a free black man.)

...
I remember how delicate democracy and free speech are, and how many people died for them in the 20th Century.
...
We have come a long way in one hundred years. Some of us still have a long way to go. Remembering what battles have been fought and what sacrifices have been made to defend tolerance and the right to change governments without bloodshed teaches us that we still have to defend the freedoms we have.

The defeat of Hitler and Japanese Imperialism cost the Western democracies dear. The ideas that led to Hitler and Japanese Imperialism are still around, if in a different form, and still need fighting. Some of the people believing in those ideas are among us now, in the United Kingdom, in Europe, and in the US.

The US Constitution and the Bill of Rights are in some sense, an enshrined reminder to be Rememberers; to be vigilant against the kinds of government abuses that led to Revolution instead of Redress and Reform.

Americans tend to characterize both World Wars as "Wars to Save Democracy," which is a real stretch considering our Allies then (Stalin and Mao) were our idealogical opponents during the Cold War.

People also tend to forget that both Japan and Germany now have Consitutions essentially written by the US, Great Britain, and France. The anti-nazi provisions of German Law and the anti-imperialism clauses of the Japanese Constitution (which prevent their military from participating in UN peace keeping missions,) were imposed by the victors of WWII.

The best protection against abuse of the kind we are talking about does seem to be the commitment of the citizen to live in a democratic state, to act as a citizen in all the ways one must. Og points out that the presence of this commitment, this citizen consciousness, if you will allow me to coin a phrase, can act to check government excesses and citizen excesses alike. Harold points out that its absence leaves pogroms and the like free rein.

...People are irked by PC, but the attitudes which allow it to succeed in the marketplace of ideas are, in fact, due a widespread conviction that racism is and should be socially unacceptable.

Cant, the problem I see isn't commitment, it's "knowledge" -- or at least education.

Political Correctness is just one "unintended consequence" of the "Child Psychology" and "Eductional Science" that asserts that not damaging a child's sef-esteem by holding them responsible for thier behavior and educational progress is more important than preparing them to live in a democratic society.

"No Child Left Behind" is the ultimate expression of that flawed educational philosophy and will ultimately lead to a generation that doesn't even know we have a Constitution, let alone know why it is important to protect and preserve it.

Many years ago, George Carlin did a hilarious comedy rotuine about "The Seven Words You Can't Say On Television" and many people can recite the "seven words" even today (or at least recognise the reference.) A decade or so later, he did a reprise of the 'Seven Words" Routine for a concert video with an updated list of words that can't be said on television -- a list that, when he unrolled it, went twenty feet out into the audience! (undoubtedly exagerated for effect, but the video's closing credits do finish while he's still reading the list.)

That concert video is getting on toward 20-25 years old now. I really hate to think about how the "Seven Words" have multiplied since then.

Political Correctness and "Hate Speech" advocates think banning the words will banish the hatred and discrimination. They're wrong, as usual, because banning anything just makes it more popular and more profitable. Rumor has it that some fairly famous authors deliberately put "objectionable" wording into their work to get it "Banned in Boston" for the free publicity and prurient interest that getting Banned generated.

I can see some very small value in legally defining "Hate Speech" but can see almost no value in banning or restricting it -- other than the aforementioned restrictions on amplification and/or transmission -- and a great deal of potential for Unintended Consequences and deliberate misuse. Whether the potential for unintended consequences and misuse are ever realized is irrelevant; if the potential is never created in the first place, they won't happen.

 

[Munachi]

i read the first page more or less but gave up now, the thread is too long for my limited time...

anyway, my opinion on the subject... difficult to say, i am torn, actually... On the one hand, I do think that of course freedom of speech should be there not only for those of my opinion, but also for those whose opinion might be contrary to mine. On the other hand, I think certain words can be dangerous, and should be prevented from being said.

Actually, I started several answers now and deleted all of them again. I just don't know.

One thing is though, that in Germany we don't constantly get in trouble for anything we say - as some in this thread make it sound. These laws against hate speech are against extremes. THough I must admit there are also some contrary cases where they get ridiculous (people getting arrested for displaying anti-nazi symbols spring to mind - they had a crossed out swastika, and had to pay a fine because technically, there was a swastika in the picture they were showing).

anyway. guess i gotta think about it more.

 

[past_perfect]

Well, living in Germany I would say the legislation serves its purpose and has to my knowledge not been abused thus far.

I believe that hate, incitement to violence or discrimination simply have no place in public or political discourse in a modern free society, as any such thing could equally be construed as an infringement on the freedom and safety of others.

I see it as one part of a functioning framework of measures against the abuse of rights to harm or discriminate others, as valid and, unfortunately, as necessary as any other part thereof. This framework is, albeit partially imposed by the WWII victors, nevertheless now part of a general consensus, part of our society's identity. If anyone here would suggest to revamp it to reflect the more "enlightened" principle of free speech at all costs, I would vehemently oppose it.

 

[Pure]

One thing is though, that in Germany we don't constantly get in trouble for anything we say - as some in this thread make it sound.


this is true in Canada, btw. we say what we like, and 99% of bigots say what they like. the law touches the very extreme crank, who's urging violence, and persons like Levant who are looking for cause and trying to test the law, in this case, by not so subtly suggesting that your typical Arab is a bomb carrying terrorist.

in the US, by contrast, with more absolute free speech, you get a dead body turning up every month or so from a hate crime, and the xian right claims that lawmakers, in voting for an attempted solution and getting a majority in the Senate and House, want to ban their bibles.

---

there was an interesting recent case in Louisiana, about something close to 'free speech'; freedom to make a symbolic gesture or expression.

folks were hanging nooses over the doors of certain Blacks. some Blacks did not get the 'prank' and somehow managed to feel scared and intimidated. (this is the sort of 'hurt feelings'--the basis for complaints under 'hate speech' laws-- that rox and levant constantly mock.)

 

[Weird Harold]

One thing is though, that in Germany we don't constantly get in trouble for anything we say - as some in this thread make it sound. These laws against hate speech are against extremes. Though I must admit there are also some contrary cases where they get ridiculous (people getting arrested for displaying anti-nazi symbols spring to mind - they had a crossed out swastika, and had to pay a fine because technically, there was a swastika in the picture they were showing).

My last duty station before retiring was Sphagdahlem AB, so I'm well aware that Germany isn't nearly obsessed with suppressing politically incorrect speech as might be inferred from some of the worst case scenarios presented in this thread.

The example you give of supressing anti-nazi symbols because they contain nazi symbols is a small example of the kind of "Zero Tolerance Policy" current American politians are fond writing into public policy and passing into law. I'm not aware of any other nation that is quite as fond of "Zero-Tolerance" as the US currently is.

Well, living in Germany I would say the legislation serves its purpose and has to my knowledge not been abused thus far.
...
...This framework is, albeit partially imposed by the WWII victors, nevertheless now part of a general consensus, part of our society's identity. If anyone here would suggest to revamp it to reflect the more "enlightened" principle of free speech at all costs, I would vehemently oppose it.

Munachi cited one minor example of what might be termed "abuse" but in general, you are correct Germany's laws are not noticeably abused but Germans are noticeably a more "law-abiding" people than Americans. It's a difference in philosphy that is very noticeable to GI's stationed in Germany (if they bother to pay attention.)

I noticed something similar when I was stationed in England but did NOT find the same in Korea or Thailand.

The "general consensus" in each country regarding "Free Speech" was unique to the history and culture of the country -- just as the American Fixation on preserving our "Constutional Rights" is unique to our culture and history.

 

[cantdog]

My last duty station before retiring was Sphagdahlem AB, so I'm well aware that Germany isn't nearly obsessed with suppressing politically incorrect speech as might be inferred from some of the worst case scenarios presented in this thread.

The example you give of supressing anti-nazi symbols because they contain nazi symbols is a small example of the kind of "Zero Tolerance Policy" current American politians are fond writing into public policy and passing into law. I'm not aware of any other nation that is quite as fond of "Zero-Tolerance" as the US currently is.




Munachi cited one minor example of what might be termed "abuse" but in general, you are correct Germany's laws are not noticeably abused but Germans are noticeably a more "law-abiding" people than Americans. It's a difference in philosphy that is very noticeable to GI's stationed in Germany (if they bother to pay attention.)

I noticed something similar when I was stationed in England but did NOT find the same in Korea or Thailand.

The "general consensus" in each country regarding "Free Speech" was unique to the history and culture of the country -- just as the American Fixation on preserving our "Constutional Rights" is unique to our culture and history.

It's our mythology, I think, Weird. The Loner, the Outlaw, the Rebel, the individualist who goes his own way and lives and dies by his own lights.

I know that sounds a bit old fashioned, but I remind you that at least a dozen movies a year are made celebrating this kind of heroic individual. It's almost a cliche that the battered hero and plucky girl, draped in a blanket off an ambulance, walk off through the chaos as the credits roll. The 'hero' has taken the law into his own hands and caused umpty thousands in property damage in a series of spectacular crashes or explosions, and very likely killed a villain extrajudicially. We never see this hero arrested and charged with felony murders, and we, the audience, have been made to know that the dead villain deserved his fate.

There are tons of television scripts and movies like that.

With this archetype as our myth of choice, there's almost a duty to 'disregard the law and do what's right' in this country. Bikers do it, young men of all sorts get caught up in its romance.

The mythos of discipline and duty is a different thing, and we don't place as much emphasis on it.

 

[Weird Harold]

It's our mythology, I think, Weird. The Loner, the Outlaw, the Rebel, the individualist who goes his own way and lives and dies by his own lights.

...
With this archetype as our myth of choice, there's almost a duty to 'disregard the law and do what's right' in this country. Bikers do it, young men of all sorts get caught up in its romance.

The mythos of discipline and duty is a different thing, and we don't place as much emphasis on it.

The question here is whether we get that Mythos as typical because we want that kind of story or if we want that kind of story because we get shown that Mythos -- aka the chicken or egg problem.

It is a very different mythos than the "Cowboy Code" I grew up with -- although it might not appear so at first glance. The "Cowboy Code" Mythos usually involved a hero who was the Law or worked with the Law (except for the 'Crooked Sheriff' archetype.) but it was alway bound up in the concepts of "Duty, Honor, Country."

Hollywood and TV did lag way behind society in that particular change to popular mythos, because shows like Bonanza still promoted it long after it began to dissolve into Vietnam War protests, Haight-Ashbury and Woodstock.

Too many people today think "Free Speech" means everyone has an obligation to listen to whatever verbal diarhea they wish to spout and can't distinguish between being allowed to speak and being provided with a forum.

I have no problem with declining to provide a national forum for some points of view and I have over 600 names in my ignore list because I choose NOT to listen to (read) what they have to say. (mostly spammers, but a great many "twits.")

I am a bit of two minds about the demise of "equal time" requirements on broadcasters that provided a voice to the financially challenged in electioneering. but then, I used to tune in to the "equal time" public service hour early Sunday Morinings to marvel at the full spectrum of human intelligence.

 

[Boxlicker101]

there was an interesting recent case in Louisiana, about something close to 'free speech'; freedom to make a symbolic gesture or expression.

folks were hanging nooses over the doors of certain Blacks. some Blacks did not get the 'prank' and somehow managed to feel scared and intimidated. (this is the sort of 'hurt feelings'--the basis for complaints under 'hate speech' laws-- that rox and levant constantly mock.)

Pure, that is what might be called "a straw man". Nobody on this thread or this forum would advocate something like what you are describing, and you know it. What you are describing is intimidation or threats against the lives or well-being of the occupants of those places, and that is NOT covered by free speech.

Virulent anti-abortionists claim they are being deprived of their rights of free speech or expression. What they mean is they are not allowed to wait outside of places where abortions are performed, and surround girls and women who want to enter, yell at them, spit on them, and whatever they can to intimidate them and keep those women from entering. What they want to do has nothing to do with free speech; it is a desire to intimidate those girls or women so they won't do what they have right to do.

I don't think anybody here believes the rights of those anti-abortionists are being violated.

 

[Pure]

here is the noose story.

is displaying this symbol on one's property or in public a protected form of expression? should the act be called and criminalized as a 'hate crime' or 'hate speech/expression'. this issue is quite relevant to the thread, because 'hate speech' laws, e.g. in Germany cover other kinds of expressions; in Germany, displaying the swastika.

http://news.bbc.co.uk/2/hi/americas/7060518.stm

Last Updated: Thursday, 25 October 2007, 11:19 GMT 12:19 UK


Unravelling race relations in the US
By Stephanie Holmes
BBC News


When three hangman's nooses were suspended from a tree in a school playground in a small Louisiana town, it sparked a chain of events which has fuelled a furious debate over race, justice and symbolism in the US.


The Jena noose incident spawned a series of copycat acts

The coils of knotted rope which swung in the shade of the tree recalled the nooses used to hang black men in collective lynchings carried out by white mobs in the southern states as recently as the 1940s.

The incident in the small town of Jena, which culminated in a group of black youths being charged with attempted second-degree murder for allegedly beating a white boy, has spawned a series of copycat acts.

Nooses have been hung on doors, pinned up in workplaces and slipped into letters.

New York's government is now considering criminalising any representation of the noose as a hate crime.
Some African-American analysts argue that the recurring use of the noose as an instrument of intimidation reveals deep and unresolved racial tensions in US society.

Symbol


"The noose, in the context of Louisiana, is a symbol of a technique of racial intimidation," explains Professor Anita L Allen, of the University of Pennsylvania's law school.



Columbia University students denounced this noose on a teacher's door
"Up until the 1940s, African-Americans were ritualistically hung from nooses in trees, killed and tortured - and this memory persists."

Mark Potok, director of the Southern Poverty Law Centre's Intelligence Project, which monitors hate groups operating across the US, agrees.

"The noose in US history is intimately associated with the Ku Klux Klan. It became the symbol of the worst the southern white supremacists could do," he told the BBC News website from Alabama.


At Columbia University, in New York, a black professor arrived at work earlier this month to find a noose hung from the door of her office.

Nooses have also recently been reported to have been found in a coast guard cadet's bag and outside a Manhattan post office.


American society is much too full of what are metaphorically 'white-only shade trees' and 'black-only shade trees'

Professor Anita L Allen, Pennsylvania University

Mr Potok argues that the rise in the number of incidents involving nooses echoes an increase in the number of hate groups across the US, which has grown by 40% over the past six years.

"There really has been an outbreak of incidents," he says. "They reflect a much wider white backlash. This is not a handful of Klansmen and neo-Nazis but widespread anger."

Divided spaces

In Jena, the nooses - reportedly in the three school colours - were hung from a tree where whites used to congregate, a day after a black pupil asked the headmaster if he could sit in its shade.


Some public zones remain divided along race lines

Months later, a white teenager was violently attacked and kicked at the school, allegedly by six of his black schoolmates.

The response of the local justice department, which initially charged five of the six with attempted second degree murder and set prohibitively high bail costs for them, provoked anger.

Some of charges were subsequently downgraded.

 

[Pure]

this blog mentioned some legal issues around noose hanging

http://peoplegetready.jockamofeenanay.com/?p=1728

Is displaying a noose protected by the First Amendment?
23rd September 2007

Should the Constitution be called into service to justify the act of hanging a noose in a tree, or displaying nooses on a pickup truck in front of a black demonstration, as a protected form of expression?

The free speech argument was made by a number of callers to New Orleans radio talk shows over the last few days. Unfortunately, although they blathered on for hours and hours, I never heard the hosts at “the new 99.5″ and WWL address this issue. If they had, we probably could have cut through a lot of the crap pretty quickly.

In my mind, there’s no particular sin in blacks and whites choosing different places to hang out with their friends — although it’s disappointing. It would certainly be better if there were such accord between the two that black and white students in Jena, Louisiana were friends who naturally commingled.

The hostilities between students arose out of the fact that, apparently, there’s only one tree in the school yard for students to seek shelter from the scorching sun. There’s the first problem. Why not have a number of trees around the yard?

Students who hung nooses in that solitary tree intended to intimidate their black classmates — no question about it. In that sense, their act was no different than if someone had raised a gun and pointed it at a classmate. I’m no lawyer, but it seems to me that the noose represented an act of assault, which could have been prosecuted as such. The threat of committing a deadly act of violence was real, and remains an unfortunate but recent memory in the history of the deep South. In fact, given the precedent for nooses being used to murder blacks, hanging that noose in a tree might have been prosecuted as an attempt of aggravated assault.

For a prosecutor, and a judge or jury, then, the remaining question would be, was there intent to use the noose? Was the threat of violence real? The defense would probably have an easy time with the slippery issue of intent, but an aggressive policy of enforcing the law might begin to inhibit ignorant rednecks from displaying nooses under the guise of free speech.

At the very least, hanging a noose represented a disturbance of the peace — manifested by tens of thousands of demonstrators — and local laws against disturbing the peace should be summoned to prosecute those who display nooses.

There is a precedent for prosecuting acts of displaying nooses as a form of intimidation. The Supreme Court ruled in Virginia v. Black (538 U.S. 343, 2003) that the First Amendment doesn’t protect cross-burning when the act is used to intimidate someone. Sandra Day O’Conner wrote that, “Threats of violence are outside the First Amendment” (Wayne Overbeck, Major Principles of Media Law, Wadsorth, 2007).

“The burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm,” said O’Conner, adding that history provides the example of cross-burning as a “signal of impending violence.” Justice Clarence Thomas, the only black Supreme Court justice, called cross-burning “a symbol of a reign of terror,” adding, “just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.”

And by the way, flag-burning continues to be considered by the Supreme Court as an act of protected speech. I’m not one to burn flags. I think there are more effective ways to express one’s views, but I still respect the act as representing a powerful symbol of defiance against government injustice — which is the very essence of what the First Amendment was meant to defend.

Nevertheless, Louisiana has a law on the books to prosecute flag-burning, but only “if an amendment to the federal constitution regarding flag desecration is proposed by the Congress and approved by the requisite number of states and becomes law.”

How about an amendment to the Louisiana Statutes to criminalize displays of nooses and cross-burning as forms of intimidation? Where intent to intimidate is clearly stated in the statute, these are laws which the Supreme Court would uphold.



There’s one issue which still troubles me about the Jena affair: What did the demonstrators accomplish in the long run? Justice may be achieved in the short-term, but what about the obvious need to promote greater social harmony? Did the demonstrators merely create cause for resentment, and play into the hands of more reactionary white forces? (Hint: “This is David Duke, and this is the David Duke internet web radio broadcast …”).

9/24/07 update:

 

[Pure]

blogger on the noose.

http://truffulaseed.ccpblogs.com/2007/09/21/two-people-arrested-for-noose-on-truck/

Two people arrested for noose on truck

CNN.com’s top story right now is that two people were arrested for hanging a noose from their tailgate near Jena, Louisiana, where major protests are going on over the continued incarceration of a black teenager who helped beat up a racist white guy.

So these guys are idiots. Driving around with a noose could very well have earned them a beating and a whole new story, just like the nooses that hung on the tree at the high school in Jena, prompting this whole ordeal.

But what is protected as freedom of speech? Granted, a noose doesn’t have many other uses as a knot, but why is hanging a noose on your truck worthy of arrest? Can you write “I hate black/white/red/whoever people” on your truck? We know you can’t write “Kill George Bush.” Somebody fill me in.

I take serious issue with two ignorant punks publicly making any bigoted statement, especially in an environment as racially charged as anywhere in the U.S. since Rodney King, but I’m skeptical that this is worthy of arrest.

 

[Boxlicker101]

Without defending anybody who would do such a foul thing, I still say that, generally speaking, burning a cross or hanging a noose - or a swastika or any other similar symbol - on one's own property is protected free speech. Peronally, I would never do such a thing, and I would despise anybody who would, but that's beside the point. A symbol of hate on public property might be a different matter.

There have been quite a few white people lynched also. Outside of the Deep South, more than there have been black people. The last two people lynched in California were two white men in San Jose about 1932. If somedy had hung a noose on my front door when I lived in San Jose, I would have been puzzled but not intimidated.

 

[Pure]

so you have no problem with the 'good old boys' driving around, as in the picture, with a noose hangin from the back of their pickup?

http://truffulaseed.ccpblogs.com/files/2007/09/artnoose2irpt.jpg

i guess you might not mind nazis driving about Berlin with red cars and the swastika painted on, rather than arrested according to the 'oppressive' German laws in place.

your statement is mindblowing, if you think it's relevant:

If somedy had hung a noose on my front door when I lived in San Jose, I would have been puzzled but not intimidated.

 

[keeblercrumb]

so you have no problem with the 'good old boys' driving around, as in the picture, with a noose hangin from the back of their pickup?

http://truffulaseed.ccpblogs.com/files/2007/09/artnoose2irpt.jpg

i guess you might not mind nazis driving about Berlin with red cars and the swastika painted on, rather than arrested according to the 'oppressive' German laws in place.

your statement is mindblowing, if you think it's relevant:

If somedy had hung a noose on my front door when I lived in San Jose, I would have been puzzled but not intimidated.

While boxlkr has no problem speaking for himself.... I think his point is that the "noose" as a "hate symbol" is in context. And while, as almost all here would agree, the context of it being used in Louisiana is hateful and despicable, excuse me if I have trouble with "symbolism" being illegal.

Years ago.... 40 maybe? The ACLU took on the case successfully, as I recall, of Nazi's parading around in a predominately Jewish suburb of Chicago, many of whose residents were survivors of the holocaust.... Suffice it to say, the ACLU took on the case because of principal, not sympathy.

Although I appreciate the pain they may cause, political symbols are protected as free speech, as the "flag" case decided. For it to have meaning, "free speech" surely most apply to most abhorrent of speech... It is not there to protect "popular" or "nice" speech....

I think a legitimate case can be made for inciting to riot, disturbing the peace, etc... for those acting or displaying "hateful" symbols.... but I think I would resist the symbols themselves as being declared "illegal".

-KC

 

[Weird Harold]

While boxlkr has no problem speaking for himself.... I think his point is that the "noose" as a "hate symbol" is in context. And while, as almost all here would agree, the context of it being used in Louisiana is hateful and despicable, excuse me if I have trouble with "symbolism" being illegal.

I don't have a problem with symbols used as intimidation being illegal -- which it already is, as is any other method of intimidation.

Where I agree with you is that some "symbols" are only symbols in certain contexts -- if displaying a noose is outlawed, then half the halloween haunted houses in the US would have to be revised or redesigned because most of the ones I've been through include a "hanged man" ghost or scene.

As far as I'm concerned, it is the intimidation or implicit threat that is, and should be, a crime and the "symbol" displayed in conjunction with or as intimidation or threat is irrlevant.

Since intimidation, threats and assault are already crimes in all fifty states and every civilized country, why do we need new laws to define special cases?

 

[Munachi]

something just came into my mind now - and let me first make clear i wouldn't do this or approve of it - but - since above was said that symbols and such are also protected free speech - isn't then a symbolic act, like burning a flag, say, the american flag or any other, the same?

 

[cantdog]

something just came into my mind now - and let me first make clear i wouldn't do this or approve of it - but - since above was said that symbols and such are also protected free speech - isn't then a symbolic act, like burning a flag, say, the american flag or any other, the same?

Oh certainly. Nothing whatever is damaged by manipulating symbols, if that's all that's being done.

 

[Boxlicker101]

so you have no problem with the 'good old boys' driving around, as in the picture, with a noose hangin from the back of their pickup?

http://truffulaseed.ccpblogs.com/files/2007/09/artnoose2irpt.jpg

i guess you might not mind nazis driving about Berlin with red cars and the swastika painted on, rather than arrested according to the 'oppressive' German laws in place.

your statement is mindblowing, if you think it's relevant:

If somedy had hung a noose on my front door when I lived in San Jose, I would have been puzzled but not intimidated.

As I said, I find such a thing to be repellant, but, generally speaking, I also consider it to be protected free speech under the Constitution. Under certain circumstances, such as parking that truck in front of the NAACP HQ, it might be an illegal attempt at intimidation, or a threat, but otherwise it would be protected free speech.

If somebody were to slash the tires on that pickup, I would not be outraged, but I would consider it to be a violation of Constitutional rights.

Burning or spitting on or otherwise desecrating the American flag is also repellant to me, but it is equally protected free speech.

Not being a citizen of Germany or Canada, and having never lived in either country, I have no opinion of the laws in those countries.

In California, there have probably been ten times as many white men lynched as black men, but I would not consider a noose hung on my front door to be anything frightening.

Yes, Munachi, desecrating of a flag has been found, by the US Supreme Court to be protected free speech. Some people would like to change the Constitution to change that, but they are not getting very far.

 

[Pure]

note to keeb

Originally Posted by Pure
//P: so you have no problem with the 'good old boys' driving around, as in the picture, with a noose hangin from the back of their pickup?

http://truffulaseed.ccpblogs.com/fil...noose2irpt.jpg

i guess you might not mind nazis driving about Berlin with red cars and the swastika painted on, rather than arrested according to the 'oppressive' German laws in place.

your statement is mindblowing, if you think it's relevant:

Box #If somedy had hung a noose on my front door when I lived in San Jose, I would have been puzzled but not intimidated.# //

keebWhile boxlkr has no problem speaking for himself.... I think his point is that the "noose" as a "hate symbol" is in context. And while, as almost all here would agree, the context of it being used in Louisiana is hateful and despicable, excuse me if I have trouble with "symbolism" being illegal.

Years ago.... 40 maybe? The ACLU took on the case successfully, as I recall, of Nazi's parading around in a predominately Jewish suburb of Chicago, many of whose residents were survivors of the holocaust.... Suffice it to say, the ACLU took on the case because of principal [sic], not sympathy.

Although I appreciate the pain they may cause, political symbols are protected as free speech, as the "flag" case decided. For it to have meaning, "free speech" surely most apply to most abhorrent of speech... It is not there to protect "popular" or "nice" speech....
I think a legitimate case can be made for inciting to riot, disturbing the peace, etc... for those acting or displaying "hateful" symbols.... but I think I would resist the symbols themselves as being declared "illegal".

P: keeb, i think you set up a straw man, here.

i said P old: //'good old boys' driving around, as in the picture, with a noose hangin from the back of their pickup// and i was talking about a Jena incident, as was the blogger, where the 'boys' get arrested.

a hate speech law looks and the item as well as the context and intent.

weird h is more on the mark

**WH: I don't have a problem with symbols used as intimidation being illegal -- which it already is, as is any other method of intimidation.

Where I agree with you is that some "symbols" are only symbols in certain contexts -- if displaying a noose is outlawed, then half the halloween haunted houses in the US would have to be revised or redesigned because most of the ones I've been through include a "hanged man" ghost or scene.

As far as I'm concerned, it is the intimidation or implicit threat that is, and should be, a crime and the "symbol" displayed in conjunction with or as intimidation or threat is irrlevant.**

P: intimidation is key. yet weird h seems NOT to take into accoutn the special nature of certain symbols, which because of history, are likely part of efforts to intimidate, e.g. burning crosses. again, not inherently, or in every context. laws against cross burning have been upheld as NOT protected speech.

mr levant, in his reasoned rant, asked the Albert Human Rights Commission why his intent was being looked at, and made show of indignation. he was trying to nullify the intent issue. HOWEVER, as he likely knows, failure to take intent into account in a puported case of hate speech would be a fatal defect in a law.

the reason for 'hate speech' laws is that they are libel or defamation against a group, which are likely to cause the group to be hated, held in contempt, etc. and lose basic rights of dignity and ability to carry on living, e.g. earning a livelihood. though i am no lawyer, it seems to me that the alleged libeler or defamer's intent is always relevant. same as, for example, other criminal acts, e.g. shoplifing.

that said, the law is enforced practically. we don't directly see people's intentions. sometimes they state them, and sometimes they misleadingly label them. (the fellow hanging the noose on the prof's door might say, 'just a prank'). so we make inferences. has the noose hanger just written to the papers saying "n*****s are getting pretty uppitiy, here at columbia u, and need to be shown their place or taken out of the picture," we would better understand his act.

 

[Boxlicker101]

Originally Posted by Pure
//P: so you have no problem with the 'good old boys' driving around, as in the picture, with a noose hangin from the back of their pickup?

http://truffulaseed.ccpblogs.com/fil...noose2irpt.jpg

i guess you might not mind nazis driving about Berlin with red cars and the swastika painted on, rather than arrested according to the 'oppressive' German laws in place.

your statement is mindblowing, if you think it's relevant:

Box #If somedy had hung a noose on my front door when I lived in San Jose, I would have been puzzled but not intimidated.# //

keebWhile boxlkr has no problem speaking for himself.... I think his point is that the "noose" as a "hate symbol" is in context. And while, as almost all here would agree, the context of it being used in Louisiana is hateful and despicable, excuse me if I have trouble with "symbolism" being illegal.

Years ago.... 40 maybe? The ACLU took on the case successfully, as I recall, of Nazi's parading around in a predominately Jewish suburb of Chicago, many of whose residents were survivors of the holocaust.... Suffice it to say, the ACLU took on the case because of principal [sic], not sympathy.

Although I appreciate the pain they may cause, political symbols are protected as free speech, as the "flag" case decided. For it to have meaning, "free speech" surely most apply to most abhorrent of speech... It is not there to protect "popular" or "nice" speech....
I think a legitimate case can be made for inciting to riot, disturbing the peace, etc... for those acting or displaying "hateful" symbols.... but I think I would resist the symbols themselves as being declared "illegal".

P: keeb, i think you set up a straw man, here.

i said P old: //'good old boys' driving around, as in the picture, with a noose hangin from the back of their pickup// and i was talking about a Jena incident, as was the blogger, where the 'boys' get arrested.

a hate speech law looks and the item as well as the context and intent.

weird h is more on the mark

**WH: I don't have a problem with symbols used as intimidation being illegal -- which it already is, as is any other method of intimidation.

Where I agree with you is that some "symbols" are only symbols in certain contexts -- if displaying a noose is outlawed, then half the halloween haunted houses in the US would have to be revised or redesigned because most of the ones I've been through include a "hanged man" ghost or scene.

As far as I'm concerned, it is the intimidation or implicit threat that is, and should be, a crime and the "symbol" displayed in conjunction with or as intimidation or threat is irrlevant.**

P: intimidation is key. yet weird h seems NOT to take into accoutn the special nature of certain symbols, which because of history, are likely part of efforts to intimidate, e.g. burning crosses. again, not inherently, or in every context. laws against cross burning have been upheld as NOT protected speech.

mr levant, in his reasoned rant, asked the Albert Human Rights Commission why his intent was being looked at, and made show of indignation. he was trying to nullify the intent issue. HOWEVER, as he likely knows, failure to take intent into account in a puported case of hate speech would be a fatal defect in a law.

the reason for 'hate speech' laws is that they are libel or defamation against a group, which are likely to cause the group to be hated, held in contempt, etc. and lose basic rights of dignity and ability to carry on living, e.g. earning a livelihood. though i am no lawyer, it seems to me that the alleged libeler or defamer's intent is always relevant. same as, for example, other criminal acts, e.g. shoplifing.

that said, the law is enforced practically. we don't directly see people's intentions. sometimes they state them, and sometimes they misleadingly label them. (the fellow hanging the noose on the prof's door might say, 'just a prank'). so we make inferences. has the noose hanger just written to the papers saying "n*****s are getting pretty uppitiy, here at columbia u, and need to be shown their place or taken out of the picture," we would better understand his act.

I hardly think that hanging a noose on a truck is defaming or libeling anybody. Neither is burning a cross on some KKK member's farm. These are vile, reprehensible acts, but they are protected free speech, as is desecrating a flag.

As for libeling or defaming, I would be very careful about that too, especially when referring to a group. Somebody might say: "Republicans want to eliminate all taxes for the rich!" This would not be a true statment,but it would not be called libel or defamation, but would be considered to be political rhetoric. If somebody were to say: "Homos want to rape little boys!" that would be defamatory and libelous but still protected free speech.

We don't need laws to protect people who say they love their mothers or think puppies and kittens are cute or like to watfch football games. Statements like that don't need defending. What does need defending are statements that are unpopular or reflect an unpopular view.

ETA: Where have cross-burning laws been held to be not unconstitutional? Burning a cross on the front lawn of a black or Jewish family that has just moved into the neighborhood would be an illegal attempt at intimidation, while a gang of KKK members who burn a cross on the farm of one of their members while at a meeting there would be protected free speech.

 

[Pure]

laws on flag burning

NOTE: i mistyped the title; this is a posting about CROSS burning and laws about it

a recent SC case on cross burning, voided part of a law, but not its essential part. the law had a 'reverse onus' provision that made 'attempt to intimidate' the legal (prima facie) assumption, and required the defendent to prove he did NOT so attempt.


http://www.aclu.org/freespeech/gen/11173prs20030407.html

U.S. Supreme Court Upholds VA Cross-Burning Ban But Sends Law Back to State Court for Refinement (4/7/2003)
FOR IMMEDIATE RELEASE

RICHMOND, VA - The United States Supreme Court today ruled that KKK member Barry Black could not be convicted of a crime under Virginia's cross-burning statute because of the law's unconstitutional presumption that all cross-burning is intended to intimidate.

However, the court upheld the other main provision of the law, which allows the banning of cross-burning when it can be shown that its purpose it to intimidate others."This is a mixed bag of a decision about a fairly narrow aspect of the law," said Kent Willis, Executive Director of the American Civil Liberties Union of Virginia. "We are pleased that the court reaffirmed free speech by making it clear that cross-burning, when it is not used as a direct threat, is protected by the Constitution."

Black, who set fire to a cross on a private farm in Carroll County, had permission from the owner of the farm to use the area for a KKK rally and to ignite a cross as part of the ceremony. The ACLU of Virginia has provided legal representation to Black since the incident in 1999.

Four of the five Justices in the majority held that the presumption of intimidation in the Virginia law is unconstitutional on its face. Justices O'Connor, Stevens, Rehnquist and Breyer wrote that the burning of a cross, if used as a "statement of ideology" or a "symbol of group solidarity," is protected by the First Amendment. Justice Scalia, the fifth member of the majority, agreed that it was wrong to convict Black but not that the law's presumption of intimidation is unconstitutional on it face.

The nation's High Court sent the case back to the Virginia Supreme Court to determine whether the constitutional problems with the statute can be resolved by eliminating the statute's presumption of intimidation, and asked the court to review the convictions of two teenagers who burned a cross in Virginia Beach.

In upholding the part of the law that prohibits cross-burning with the intent to intimidate, the Court's majority held that the Virginia law is not inconsistent with R.AV v. St. Paul, a 1992 Supreme Court ruling that struck down an ordinance prohibiting cross-burning and other kinds of threatening conduct, but only when it is motivated by racial, religious or gender bias. Unlike the ordinance in R.A.V., Virginia's statute bans all cross-burning with the intent to intimidate and therefore does not discriminate against particular viewpoints.
The Court also held that the state could single out cross-burning because it is an especially "virulent form of intimidation" with a "long and pernicious history as a signal of impending violence."

"We would have preferred that the Supreme Court agree with us by taking a purer First Amendment stand, but it did strike down the presumption in the law that cross-burning is always meant to intimidate," added Willis. "In addition, the Justices sent a strong pro-speech message to the states by upholding the reversal of Barry Black's conviction."

Justices Souter, Ginsburg, and Kennedy ruled that the entire Virginia statute is an unconstitutional violation of free speech. Justice Thomas held that the statute is constitutional but his reasoning differed sharply from the majority, finding that the statute did not prohibit any protected speech - only intimidating, terroristic conduct.