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PaperclipPerfector  1yr ago (text post)   33392 thread views

Culture War Roundup for the week of April 17, 2023

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A variant of this statute has actually been tested before the Supreme Court in Virginia v. Black. They held that it is constitutional to limit intimidating speech that represents a true threat, but invalidated part of the statute that directed juries to infer intimidation from the mere act of cross burning.

The statue in the Supreme Court case appears to be the template for this one. The original referred to cross burning specifically, this one is more generic.

The Court did qualify their ruling as pertaining specifically to cross burnings and "particularly virulent form[s] of intimidation":

The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R. A. V. and is proscribable under the First Amendment.

A general ban on burning objects, especially objects whose designed purpose is to be burnt, doesn't seem to fit.

long and pernicious history as a signal of impending violence

While tiki torches don't have a long history at all of being associated with the altright, I am pretty sure Charlottesville started that association. I've met people in real life mention tiki torches as if they automatically imply someone is altright, and have heard someone say, "now I can't use tiki torches anymore."

If tiki torches are a shibboleth for the outgroup, and the law is just a tool to beat them, then who's to say the tiki torch doesn't have a long pernicious history of a signal for violence? Was there any principle behind the "cross burning has a long history" here? Wasn't it just, "cross-burning is a low-status racist thing, so sure let's punish them."

The Court did qualify their ruling as pertaining specifically to cross burnings and "particularly virulent form[s] of intimidation": ... A general ban on burning objects, especially objects whose designed purpose is to be burnt, doesn't seem to fit.

I know nothing about the specifics of what these particular guys are alleged to have done which supposedly constitutes intimidation, but the fact that these were tiki torches rather than crosses is not relevant under Virginia v Black. The Court didn't say that the general rule is that states cannot ban burning objects with intent to intimidate, but that crosses are an exception; rather, they said that the general rule is that burning crosses is protected speech, but that doing so with the intent to intimidate is an exception. As the Court said, "Intimidation in the constitutionally proscribable sense of the word is a type of true threat." And true threats are not protected speech. States can, of course, pass any law they want, unless the law violates the Constitution (federal or state). So states can outlaw all forms of speech intended to intimidate, including burning objects of all sorts.

Remembers 2020, laughs to avoid crying

The true threat exception is extremely narrow; among other things, the speech in question must be aimed at a specific person. So, the 2020 BLM protests would not qualify. Nor would the Unite the Right march; and, since only a few people have been charge, there must be something that they are alleged to have done over and above simply marching and carrying torches. What that is, and whether it actually brings them within the ambit of the exception, neither of us know yet.

given the DA appears to be malicious and so the law barely matters, do you think there would have been less of a case if they had, I dunno, flashlights on sticks instead of flames?

Again, without knowing the specific factual allegations, it is impossible to know. But of course flashlights would not fall within this particular statute.

Sticks alone would suffice. You ever been hit with one?

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