A Stitch in Haste

“It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings.”
–this?), but neither am I a fan of activist legislators intent on lynching the First Amendment:

Following a rash of cases involving nooses, the state Legislature Monday moved toward making it a felony to display the symbol of lynchings in the Old South in a threatening manner.

“We won’t tolerate this,” said Sen. Dean G. Skelos, a Long Island Republican who sponsored the measure that passed Monday in the Senate. “There is no place for racism and intimidation in America.”

The bill also covers etching, drawing or painting the symbol. He said that, as in the case of Nazi symbols and burning crosses, an intent to threaten or harass would be part of an anti-noose law.

Compare and contrast this proposal to traditional hate crime laws: In the latter, the crime has happened, the intent is merely an escalator, a manifestation of the long-standing and totally innocuous premise that there can be reasonable bases for punishing a crime differently under different circumstances.

But with a noose law (or a swastika law or any comparable proscription), the crime has not happened — there has been no assault, no battery, no homicide, no destruction of property. There is merely expressive conduct. Revolting expressive conduct, no doubt, but expressive conduct nonetheless. Here is where the line is crossed. Here is where the government is now “punishing thought.” And here, therefore, is where the First Amendment must stand athwart.

The law is unambiguous: offensive expressive conduct is fully protected under the First Amendment unless it creates a danger of “imminent lawlessness” (i.e., directly incites a crime). Brandenburg v. Ohio, 395 U.S. 444 (1969). Merely displaying a noose (or, more absurdly, drawing a noose) cannot, even under the most contrived fact pattern, foment imminent lawlessness.

Of course, a noose display can easily reflect another (bona fide) crime — such as trespass, vandalism or battery. Just as one does not need a flag desecration amendment to protect one’s own flag — property laws accomplish that with no affront to the Constitution — one also does not need to criminalize noose displays to protect one’s own property or bodily or emotional integrity.

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Incidentally:

He said that, as in the case of Nazi symbols and burning crosses, an intent to threaten or harass would be part of an anti-noose law.

I’m not aware of any jurisdiction in the United States where there is law banning the mere display of Nazi symbols (with or without “intent to threaten or harass”), at least not any laws that have been upheld by any court. A hooligan who spray-paints a swastika on a synagogue door is prosecuted for vandalism (perhaps as a hate crime), but not for “illegally displaying Nazi symbols.”

I have thus far been unable to find a draft of the proposed censorship law. The activist legislator proposing it insists that he will base it on precedent, by which I assume he means Virginia v. Black, which upheld a (narrowly tailored) ban on cross-burning. In that case, I would cut him some slack if and only if:

1. The bill includes the requirement that “intent to intimidate” be an element of the crime (complete with having to be proven beyond a reasonable doubt), and, more importantly,
2. The bill also includes the requirement that the display take place on the property of another or on public property (i.e., just as the statute upheld in Virginia v. Black contained).

Even in the wake of Virginia v. Black, one still has a First Amendment right to burn a cross on his own lawn, or spray-paint swastikas on his own front door. If this duplicative New York bill respects that primacy of the First Amendment, then it is merely redundant warm fuzzy feeling grandstanding by an activist legislator. If not, then it is an unconstitutional abomination and must be quickly quashed in the courts.

More on nooses at Concurring Opinions.