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PaperclipPerfector  1yr ago (text post)   33393 thread views

Culture War Roundup for the week of April 17, 2023

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I would guess the original intent of the law was to outlaw cross-burning.

No, cross burning with intent to intimidate is a separate crime in VA.

If you can occasionally burn a cross on a Black family's lawn without it rising to intimidation,

Note that your block quote misstates the decision. The law at issue in Virginia v. Black was unconstitutional only because of one provision. The provision said: "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

So, the Court did NOT "h[o]ld that the provision allowing the jury to infer intent to intimidate from the public burning of a cross was unconstitutional," because the provision didn’t say that. Rather that the provision required the jury to infer that intent, if not rebutted by the defendant.

And note that there were two cases consolidated in Black. The first conviction, involving people who burned a cross at a Klan meeting, was reversed. The second, involving defendants who burned a cross on a Black family's lawn, was not reversed, It was remanded to the VA Supreme Court to give them an opportunity to interpret the prima facie provision to render it constitutional.

If you are willing to mind-read people then thought crimes are easy, I suppose.

99% of crimes require the jury to find that the defendant acted with a particular mental state. Attempted murder does not become a "thought crime" because it requires the intent to kill, nor does extortion become a thought crime because it requires intent to cause fear. I am skeptical of this prosecution (though I don’t know what, specifically, these particular defendants are alleged to have done), but this particular criticism seems to miss the mark.

Why are you skeptical in this case? The inference of intent is a jury finding and basically not reviewable. Are you skeptical that a jury would be unwilling to determine they intended to intimidate?

I am skeptical because prosecutors tend to push the boundaries of statutes and the First Amendment all the time and so engender skepticism, and because it benefits the prosecutor to bring a dubious case and then blame the judiciary if the case gets properly tossed, or blame the jury if they lose (as often happens with "tough on crime" prosecutors, who have a similar incentive to overcharge, and who similarly use the judiciary as scapegoats when dubious charges get thrown out).

Do I understand you correctly, that you think there is a plausible First Amendment issue here? Do you see this as a problem with the statutory construction, or with the application of an otherwise valid law?

The application. But only potentially. We don't know enough about what specifically the defendants are alleged to have done. The law itself is clearly perfectly fine under Virginia v. Black.

Or the jury rules against the defendants because of their political views, and the judiciary just plays Pontius Pilate and defers to the jury.

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