Burning Crosses, Hangman’s Nooses, and the Like: State Statutes That Proscribe the Use of Symbols of Fear and Violence with the Intent to Threaten
Released: 2007-10-05T00:00:00

Introduction

Burning crosses, exhibitions of hangman's nooses and similar displays are the subjects of criminal statutes in virtually every state in the Union. The coverage of those statutes varies a great deal. The Supreme Court's decision in Black v. Virginia serves as a reminder that efforts to enlarge their scope raise serious, but not insurmountable, First Amendment implications.

Cross Burning

Legislatures in almost half of the states have enacted statutes that explicitly outlaw cross burning in one form or another. The most common variety simply states, "It shall be unlawful for any person, 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." In other places, a specific cross burning proscription has been affixed to the state's civil rights law, its threat statute, or its harassment provision.

Without more, these proscriptions do not ordinarily reach beyond burning crosses to hangman's nooses or other such harbingers of violence. In response several jurisdictions have resorted to generic condemnation of symbols or exhibitions calculated to intimidate or threaten. One such example states briefly,

It shall be unlawful for any person or persons to place, or cause to be placed, anywhere in the state any exhibit of any kind whatsoever with the intention of intimidating any person or persons, to prevent them from doing any act which is lawful, or to cause them to do any act which is unlawful. Fla.Stat.Ann. Â§876.19.

General Prohibitions

Both the states that have explicit cross burning statutes, as well as those that do not, often have coercion, terroristic threat, harassment or civil rights statutes of sufficient breadth to prosecute misconduct that might otherwise be tried under a cross burning statute.

Coercion

Coercion is a crime that dates from the Nineteenth Century Field Code (1865). It is a crime reminiscent of extortion but without the extraction of property required of that offense. In those states in which it is found, it is essentially the same. It prohibits efforts to compel another through the use of threats to do or refrain from doing something the victim is legally entitled to do:

A person commits the crime of criminal coercion if, without legal authority, he threatens to confine, restrain or to cause physical injury to the threatened person or another, or to damage the property or reputation of the threatened person or another with intent thereby to induce the threatened person or another against his will to do an unlawful act or refrain from doing a lawful act.

A few states characterize as the crime of intimidation the crime known elsewhere as coercion. In either case, the proscription would apply where a cross burning or other symbolic threat is designed to discourage another from exercising or refraining from exercising a particular lawful prerogative.

Terroristic Threats

State terroristic threat statutes are diverse. At one time, such statutes encompassed only threats to commit a serious crime against person or property. Today those elements have been replaced and augmented with an array of provisions relating to hoaxes and false alarms of catastrophic consequences. In those states where one of the elements of the crime is either the fear of imminent serious injury or property destruction or of a threat directed against the general population, prosecution of intimidation by symbolic threats may be difficult if not impossible under most circumstances. On the other hand, in those states where the terroristic threats statute proscribes threats of death, serious injury or property destruction, particularly where the statute has a hate crime element, the circumstances surrounding a cross burning or similar display may present all the elements for a prosecution.

Harassment

Most states have a harassment statute. In various configurations, they cover repetitious annoyances; threats specifically conveyed, orally, electronically, or by telephone or mail; and conduct likely to stimulate an immediate violent response. Most are unlikely to reach symbolic threats and intimidation such as cross burning, hangman's nooses or their ilk. A few, however, may qualify, especially those that resemble terroristic threat statutes. The Nevada statute, for example, states in relevant part:

A person is guilty of harassment if: (a) Without lawful authority, the person knowingly threatens: (1) To cause bodily injury in the future to the person threatened or to any other person ... and (b) The person by words or conduct places the person receiving the threat in reasonable fear that the threat will be carried out. Nev.Rev.Stat. Â§200.571[1].

Here too, constitutional anxieties aside, coverage is most apparent in those statutes that feature a hate crime element.

Civil Rights

Most jurisdictions have hate crime sentencing statutes that enhance the penalties imposed for commission of other criminal offense when the defendant was motivated by racial, religious or some other discriminatory animus. As already noted, the presence of such animus is an element in several of the cross burning, harassment and threat statutes. Apart from these, a handful of states also have statutes that criminalize the deprivation of civil rights generally:

(B) If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the State of West Virginia or by the Constitution or laws of the United States, because of such other person's race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony.... W.Va.Code Ann. Â§61-6-21(B).

First Amendment Considerations

No cross burning statute or law of similar comportment can be assessed without considerations of its First Amendment implications. Generally, these statutes will pass constitutional muster so long as they can be read only to proscribe expressive conduct that falls outside of the protection of the First Amendment. The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech." The Fourteenth Amendment's due process clause imposes the same restriction upon the states, many of whose constitutions house a comparable limitation on state legislative action.

The First Amendment protects both pure speech and expressive conduct used to convey a message or embody an ideology. However, the Supreme Court has long recognized that the First Amendment does not afford all forms of expression absolute protection, and the government constitutionally may prohibit the forms of expression that fall outside of the First Amendment's protections. The First Amendment permits "restrictions upon the content of speech in a few limited areas, which 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."

The proscribable categories of speech include, but are not limited to, obscenity, "fighting words," and "true threats." The Supreme Court recently decided a case analyzing the constitutionality of a cross-burning statute, categorizing the prohibited conduct as a "true threat."

Virginia v. Black

Virginia v. Black considered the constitutionality of a Virginia statute that banned cross-burning "with the intent to intimidate." Men had been convicted under the statute in two separate cases, which the Supreme Court consolidated and heard together. In the first case, Mr. Black burned a cross on the property of a fellow member of the Ku Klux Klan ("Klan"). The property was located in full view of a public highway where neighbors and passers-by could view the ceremony and the burning cross. In the second case, Mr. Elliot burned a cross on the front lawn of an African American family who had moved in next door.

The statute under which the men were convicted read, in pertinent part:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place....

Any such burning of a cross shall be prima facie evidence of an intent to intimidate.

After laying out the statute, the Court proceeded to trace the history of cross-burning, placing particular emphasis upon the use of the burning cross as a threat of future bodily harm by the Klan. The Court noted that "while cross burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed."

Writing for the Court, Justice O'Connor indicated that cross burning, if accomplished with the intent to intimidate a person or group, could be considered a "true threat" in light of the history of burning crosses. In endorsing the constitutionality of the statutory provision banning cross burning with the "intent to intimidate," the Court defined a true threat.

"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. See Watts v. United States , [394 U.S. 705, 708 (1969)] ("political hyperbole" is not a true threat); R.A.V. v. City of St. Paul , 505 U.S. at 588. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats "protects 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." Ibid. 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 .

Because cross burning is often intimidating, and often done with the intent of creating pervasive fear in victims that they are a target of violence, it seems to fall squarely within the type of constitutionally proscribable speech described by the Court.

The Court also recognized that, historically, crosses have been burned for reasons that are protected by the First Amendment. The act of burning crosses is common at traditional Klan meetings, not unlike the meeting Mr. Black held during which the cross was lit, and those gathered sang songs, including "Amazing Grace." However, the majority declined to find that once a law discriminates based on this type of content, the law is unconstitutional. The First Amendment does not prohibit all forms of content discrimination within a proscribable area of speech.

Within the types of content discrimination that did not violate the First Amendment, the Court cited R.A.V. for the proposition that "when 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." In this case, Virginia did not single out cross-burning with the intent to intimidate for certain reasons, such as cross-burning with the intent to intimidate due to racial prejudice, but rather banned all cross burning done with the intent to intimidate regardless of the underlying animus. The majority found the facts of one of the cases it was deciding illustrative. It was unclear from the record whether Mr. Elliot burned a cross on his neighbor's lawn to express racial hatred or to express his lack of appreciation for complaints about guns Mr. Elliot fired in his back yard. Because the Virginia statute was written to include Mr. Elliot's conduct regardless of his motivation, the statute did not discriminate against his conduct on the basis of the content of the message the cross-burning conveyed and fell within the permissible bounds of content discrimination outlined in R.A.V .

The Court acknowledged that cross burning is a particularly virulent form of intimidation. As a result, the Court held that a statute which criminalizes cross-burning "with the intent to intimidate" is fully consistent with the Court's previous holdings. Likening the situation to its obscenity cases where a state may regulate only that obscenity "which is most obscene," the Court held that a state may choose to prohibit "only those forms of intimidation that are most likely to inspire fear of bodily harm."

Following the "true threat" analysis, Justices O'Connor, Rehnquist, Stevens, and Breyer went on to strike down the statute, because it contained another provision that made the act of cross burning prima facie evidence of the intent to intimidate. The plurality found that, though it was constitutional to ban cross burning with the intent to intimidate as a "true threat," the prima facie evidence provision could create an unacceptable danger that protected speech would be criminalized or chilled. The issue in this portion of the opinion was a jury instruction delivered in Mr. Black's case. The instruction stated that "the act of burning a cross, by itself, is sufficient evidence to infer the required intent." This interpretation of the prima facie evidence provision rendered the statute unconstitutional, in the plurality's view. "The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself." In the plurality's view, the provision stripped away "the very reason why a State may ban cross burning with intent to intimidate," and created an unacceptable risk of the suppression of ideas. On that basis, the plurality held that the statute was invalid on its face. Recognizing that the Virginia Supreme Court had not passed on the meaning of the prima facie evidence provision, the plurality left open the possibility that Virginia's highest court could apply a constitutional interpretation to the prima facie evidence part of the statute, or sever it from the statute completely.

Justices Scalia and Thomas dissented from the plurality's view that the prima facie evidence provision rendered the statute facially unconstitutional. Justice Scalia, joined by Justice Thomas, argued that prima facie evidence, as interpreted by Virginia courts in the past, "cut[] off no defense nor interpose[d] any obstacle to a contest of the facts." In Scalia's view, prima facie evidence "is evidence that suffices, on its own, to establish a particular fact," but that is true only to the extent that presumption remains unrebutted. The act of burning a cross is sufficient only to create an issue for the trier-of-fact with respect to the intent element of the offense, not to establish an irrebuttable presumption of intent to intimidate.

Scalia, further, cited a decision in which the Supreme Court emphasized that "where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial ... judged in relation to the statutes' plainly legitimate sweep." Justice Scalia argued that an instance in which a person would burn a cross in public view without the intent to intimidate and then refuse to present a defense would be exceedingly rare and did not rise to a level of substantiality that would render the statute unconsitutional. The class of persons the plurality was concerned could be convicted impermissibly under the prima facie evidence provision was far too insubstantial to justify striking down the statute as facially invalid. Justice Scalia agreed, however, that the jury instruction in Mr. Black's case was improper and would have remanded the case for interpretation of the prima facie evidence provision, rather than hold the entire statute unconstitutional.

Justice Thomas also wrote separately in dissent. Justice Thomas argued that the prima facie evidence provision created an inference as opposed to a presumption, and should not raise concern for the Court. A presumption, Justice Thomas noted, compels the fact-finder to draw a certain conclusion or a certain inference from a given set of facts. On the other hand, an inference does not compel a specific conclusion, but " merely applies to the rational potency or probative value of an evidentiary fact to which the fact-finder may attach whatever force or weight it deems best ." Thomas observed that statutes prohibiting possession of drugs implied an intent to distribute based upon the quantity of drugs held and nothing more. In Thomas's opinion, these possession with intent statutes operated in much the same way as the statute at issue in this case.

Justice Thomas also dissented from the Court's constitutional analysis of the statute. Justice Thomas argued that banning cross-burning did not implicate the First Amendment because the statute banned conduct only. In tracing the history of the cross-burning statute at issue, Justice Thomas noted that the law was enacted in 1952, a time when the Virginia legislature was controlled by segregationists. The legislature recognized that cross-burning was terrorizing conduct and punishable for that reason. It is unlikely, in Justice Thomas's view, that a state legislature that thoroughly supported segregation and the superiority of the white race would have intended to proscribe the message of white racial superiority. Rather, the legislature considered burning a cross to be an act of terrorism and sought to forbid the conduct, not expression. As a result, Justice Thomas saw no reason to analyze the statute under the First Amendment.

Justice Souter also wrote separately joined by Justices Kennedy and Ginsburg. Justice Souter would have found the statute unconstitutional. He disagreed with the Court's interpretation of R.A.V. and the application of the "particular virulence" exception outlined in that case to cross-burnings. Rather, Souter would have analyzed the Virginia statute for whether its "nature" is such "that there is no realistic possibility that official suppression of ideas is afoot."

Regardless of that distinction, Justice Souter did not believe either conviction could be upheld when considering the entire statute as it was applied to the accused. In Souter's view, the primary effect of the prima facie evidence clause "is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning." In that way, Souter viewed the statute as suppressing ideas to an unacceptable degree.

On the basis of Black , it would appear that without offending First Amendment precepts a law may proscribe cross burning and similar exhibits intended to convey "true threats." Whether it may proscribe only those true threats that also include a hate crime element of the type found in the ordinance in R.A.V. is unclear at best.

Overbreadth and Vagueness

Overbreadth

Lower court cases decided after Black continue to address overbreadth and vagueness challenges to threat, harassment and intimidation statutes. An otherwise valid governmental regulation may be deemed unconstitutional if it "sweeps so broadly as to impinge upon activity protected by the First Amendment." Where a government proscribes both constitutionally protected speech and speech that is not protected by the First Amendment, the regulation may be struck down on grounds that it is overly broad.

Where a statute proscribes conduct rather than "pure speech," the Supreme Court is less likely to invalidate the statute on overbreadth grounds. As the conduct a statute prohibits moves further from the realm of "pure speech" toward conduct that may fall within the scope of otherwise valid criminal laws, like harassment or terroristic threats, the protected speech that may be deterred "cannot, with confidence, justify invalidating the statute on its face." As Justice Scalia pointed out in Black , "where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial ... judged in relation to the statute's plainly legitimate sweep." As a result, statutes that ban conduct, which may otherwise be expressive, likely must create a danger of deterring a substantial amount of protected speech in order to be declared facially overbroad.

Statutes banning expressive conduct that may be considered "true threats" are not immune, however, to a facial overbreadth challenge. Faced with the problem of potential unconstitutionality, state courts, by and large, have used the canons of statutory construction to limit the reach of statutes to proscribe only "true threats" as defined by the Court in Black . Accepted rules of statutory construction instruct courts to, when feasible, construe the regulatory effects of statutes challenged under the First Amendment to punish only expression which falls outside the Amendment's protection. Using this general principle, courts have read statutes to prohibit only those constitutionally proscribable forms of expression, taking care to avoid applying the statute to protected speech. As the Supreme Court held in Black , statutes such as those addressed in this report, if interpreted by state courts only to prohibit conduct that amounts to intimidation or expressions meant to communicate a serious threat of harm, would likely pass constitutional muster.

Vagueness

"Even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to protect against the arbitrary deprivation of liberty interests." Yet, there is nothing inherently vague about statutes that outlaw the use, with the intent to threaten, of burning crosses or other harbingers of violence, although as with any type of statute they may be imprecisely drawn upon occasion.

Fighting Words

Cross burning and comparable exhibits may provoke anger as well as fear. Laws that condemn threats have sometimes been defended on the ground "fighting words" lie beyond the pale of the First Amendment's protection. This category of unprotected speech is of somewhat uncertain dimensions. R.A.V. is a "fighting words" case, yet the Court in Black opted for a "true threat" mode of analysis instead. On the other hand, in Black it elected to distinguish rather than reject or ignore R.A.V.

The "fighting words" doctrine begins in Chaplinsky v. New Hampshire , where the Court held that fighting words, by their very utterance inflict injury or tend to incite an immediate breach of the peace and may be punished consistent with the First Amendment. In Chaplinsky , the Court upheld a statute which prohibited a person from addressing "any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place," calling "him by any offensive or derisive name," or making "any noise or exclamation in his presence and hearing with the intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation." The state court construed the statute as forbidding only those expressions "as have a direct tendency to cause acts of violence by the person to whom, individually, the remark [was] addressed." Given the limited scope of application, the Supreme Court held that the statute at issue did not proscribe protected expression.

This category of proscribable speech appears to be more difficult to define within the bounds of the Constitution and requires the threat of an immediate breach of peace in order to be punishable. In Cohen v. California , the Supreme Court held that words on a t-shirt that contained an expletive were not directed at a person in particular and could not be said to incite an immediate breach of the peace. For that reason, profane words that are not accompanied by any evidence of violence or public disturbance are not "fighting words." The Court went on to describe the value of expression in communicating emotion. In the Court's view, certain words, including expletives, which could in other contexts be construed as fighting words, may be indispensable in effectively communicating emotion, a form of expression protected by the First Amendment. In Brandenburg v. Ohio , the Supreme Court struck down an Ohio statute that criminalized advocating violent means to bring about social and economic change. The Court found that the statute failed to distinguish between advocacy, which is protected by the First Amendment, and incitements to "imminent lawless action," which are not protected. These cases illustrate that "fighting words" require an immediate risk of a breach of peace in order to be proscribable. What speech is proscribable, therefore, appears highly dependent upon the context in which it arises. Moreover, it can hardly escape notice that R.A.V. involved a law that outlawed cross burning with the intent to annoy, while Black involved a law that outlawed cross burning with the intent to threaten. The first the Court found impermissible. The second it said offended only because an attendant provision effectively read the intent to threaten out of the proscription.

Conclusion

To the extent that statutes of the types identified in this report ban expressive conduct that falls outside the protection of the First Amendment, the laws generally pass constitutional muster. When the laws can be read to encompass expressive conduct that is normally protected by the United States Constitution as well as traditionally criminal conduct, the statute likely must chill a substantial amount of protected conduct in order to be deemed facially invalid. Courts may limit their interpretations of statutes that appear to sweep too broadly on their faces to encompass only those forms of expression that are constitutionally proscribable.