Certain types of symbolic speech can enrage, inflame and outrage observers. The burning of an American flag roils many people in this country. Another particularly noxious form of symbolic speech involves the display of a noose — a tool or symbol of racial oppression in this country.
The NAACP writes in its 2007 report “State of Emergency” that “the hangman’s noose is a symbol of the racist, segregation-era violence enacted on blacks.”
In response to recent incidents, several state legislatures have introduced bills criminalizing the display of nooses. Two states — Connecticut and New York — have adopted such legislation.
During the Jena Six controversy in Louisiana, noose displays exacerbated the racial tension. An African-American professor at Columbia University found a noose displayed outside her office door in 2007. Nooses were found on several college campuses and in residence halls across the country. These and other disturbing incidents caused President Bush to address the issue in February 2008 when honoring Black History Month.
Bush stated: “The era of rampant lynching is a shameful chapter in American history. The noose is not a symbol of prairie justice, but of gross injustice. Displaying one is not a harmless prank. And lynching is not a word to be mentioned in jest. As a civil society, we must understand that noose displays and lynching jokes are deeply offensive. They are wrong. And they have no place in America today.”
In May, Connecticut amended a hate-crime law by adding a noose-display section that provided: “Any person who places a noose or a simulation thereof on any public property, or on any private property without the written consent of the owner, and with intent to intimidate or harass any other person on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability, shall be in violation” of the law.
Connecticut Gov. M. Jodi Rell signed the measure into law on May 7. “Connecticut simply will not tolerate bigotry or racism,” Rell said in a statement. “Let this bill send that message loud and clear. Using a noose — a symbol of the racially motivated lynchings during the late 19th and first half of the 20th century — to intimidate anyone because of their race or any other characteristic is a repugnant and cowardly act. No one should be subject to that kind of treatment.”
New York passed a similar bill, also in May. The New York measure amends an existing aggravated-harassment law to bar the etching, painting, drawing or display of a noose. It provides that such action is a crime unless the person has the permission of the private or public property owner.
New York Gov. David A. Paterson signed the measure into law the same day as Gov. Rell did. “It is sad that in these modern times there remains a need to address the problem of individuals who use nooses as a means of threat and intimidation,” he said in a May 15 statement. “But it is a reality and if we ignore it we would be derelict in our duty. The Legislature has given voice to the revulsion that such incidents inspire in all of us.”
Other states have considered noose-display laws. A similar bill may soon become law in Louisiana. On June 19, the Legislature sent H.B. 726 to Gov. Bobby Jindal for his signature. The measure provides: “It shall be unlawful for any person, with the intent to intimidate any person or group of persons, to etch, paint or draw or otherwise place or display a hangman’s noose on the property of another, a highway, or other public place.”
Maryland legislators have examined two noose bills that were introduced in October 2007 and January 2008. H.B. 41 provides: “A person may not affix, erect, or place a noose or swastika on a building or real property, public or private, without the express permission of the owner, owner’s agent, or lawful occupant of the building or real property, with the intent to threaten or intimidate any person or group of persons.” The measure passed the Maryland House in March but did not come up for a full vote in the Senate.
The other measure, H.B. 80, did not fare as well, as it failed to clear a House Judiciary Committee in March.
In Missouri, S.B. 763 would amend the state’s existing cross-burning law and add nooses displayed with the intent to intimidate. Introduced in December 2007, the measure was referred to a Senate committee in January.
Constitutionality of noose-display laws
Opponents of such measures question the wisdom of targeting a particular symbol. They point out that the U.S. Supreme Court twice, first in 1989 and again in 1990, struck down state and federal laws singling out flag-burning. They worry that the list of disfavored symbols could grow and lead to a reduction in freedom of expression.
Supporters of noose-display laws rely heavily on the U.S. Supreme Court’s 2002 decision in Virginia v. Black, which upheld the bulk of a state cross-burning law. The Virginia law provided: "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.”
The high court reasoned the cross-burnings done with the intent to intimidate others constitute true threats unprotected by the First Amendment. Justice Sandra Day O’Connor wrote in her opinion that “when a cross burning is directed at a particular person not affiliated with the Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm.” She continued: “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.”
The Virginia v. Black opinion explains why many of the noose-display laws, rather than imposing a flat ban, contain language requiring that the display or drawing involve an “intent to intimidate.” The Supreme Court reasoned that not all cross-burnings necessarily were done with an intent to intimidate and, thus, may not qualify as true threats. The same logic applies to noose displays.
Leading First Amendment expert Robert M. O’Neil, founding director of the Thomas Jefferson Center for the Protection of Free Expression, says that the Court’s decision in Virginia v. Black provides support for a noose-display law that singles out displays made with an intent to intimidate.
“I am unable to offer a principled distinction between the burning cross and the noose display,” he said. “There is obviously no major distinction between the noose and the burning cross in Black. Once the Court started down that path in Black, the drawing of a sharp, clear distinction has to be based on something exclusive or unique.”
Supporters of noose-display laws point out that nooses and cross-burnings share a similar shameful history. In fact, nooses may be seen as worse because they were the actual tool of death in lynchings.
Some noose-display measures may run afoul of an earlier Supreme Court decision, R.A.V. v. City of St. Paul (1992), which invalidated a St. Paul, Minn., ordinance that provided: “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, commits disorderly conduct and shall be guilty of a misdemeanor."
Justice Antonin Scalia reasoned that the problem with the St. Paul ordinance was that it banned only certain displays — those done to anger or alarm others on the basis of “race, color, creed, religion or gender.” He pointed out that the ordinance would not cover displays targeting people because of their “political affiliation, union membership, or homosexuality.” To Scalia, this selective banning of displays raised the specter of viewpoint discrimination. “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects,’ he wrote.
The RAV decision means that a noose-display measure may run into First Amendment problems if it targets only nooses placed to intimidate victims because of race, gender or national origin.
Some First Amendment advocates also worry that more and more symbols are becoming excluded from the realm of acceptable and lawful expression. If laws prohibit displays of crosses, swastikas and nooses, what other symbols are next? Will legislation soon ban Confederate battle flags, Iron Crosses or other symbols that some associate with hate crimes?