VIKRAM DAVID AMAR

If California Passes Its Bill Criminalizing the Hanging of a Noose on Someone Else's Property or Public Property with Intent to Terrorize, Would This Anti-Hate Law Be Constitutional?

By VIKRAM DAVID AMAR & ALAN BROWNSTEIN
Thursday, April 23, 2009

In this column, we consider the First Amendment questions raised by a bill being considered by the California Assembly, AB 412. The bill would, among other things, amend the state's Penal Code sections to impose criminal penalties on "any person who hangs a noose, knowing it to be a symbol representing a threat to life, on the property of another, without authorization, for the purpose of terrorizing the owner or occupant. . ." For purposes of discussion, we will call this part of the bill a "hate crimes" provision.

The bill goes on to also impose criminal penalties on any person "who hangs a noose, knowing it to be a symbol representing a threat to life, on the property of a primary school, junior high school, high school, college campus, public park, or place of employment, for the purpose of terrorizing any person who attends or works [at or is associated with such locations]". We can call this part of the bill a "hate speech" provision.

The preamble to the bill makes clear the law's intended purpose when it states that "[h]anging a noose is directly correlated with America's history of racial hatred and murder, representing not only a threat to African American life and safety, but causing further psychological and emotional trauma as well. . . ." The preamble then describes the sordid and horrifying history of the lynching of African Americans in the United States, and concludes by noting that, "[g]iven this history, to a reasonable person, the display of a noose at a school, park, place of employment or other public venue amounts to a direct and immediate threat of force to intimidate persons based on racial characteristics."

If the bill becomes law, should it be struck down by a court as a First Amendment violation? Or does it fall outside the Amendment's protections?

Under Supreme Court Precedent, Physical Crimes Motivated by Racism Can Be Punished More Severely

We have no doubt that hanging a noose on someone else's property or in a public place may be intended to communicate a racist threat to the persons located there. The harder question is whether this deplorable conduct can be criminalized without violating the First Amendment.

In our judgment, the "hate crimes" provision in the bill can be fairly easily justified under current doctrine. The Supreme Court held in Wisconsin v. Mitchell that a state may enhance the penalty imposed on the perpetrators of a crime if the crime is motivated by racial hatred. For example, the punishment for battering a person may be enhanced if the perpetrator selected his victim because of the victim's race. The hate crimes provision of California's bill, AB 412, appears to be predicated on the illegal act of trespassing onto another person's property. Accordingly, punishing a perpetrator who trespasses on the private property of another person for the bigoted purpose of terrorizing him on account of his race can be upheld under the authority of Mitchell.

Whether Crimes Consisting Entirely of Speech – Even Racist Speech – Can Be Punished Is a More Complicated Question

Evaluating the constitutionality of the bill's "hate speech" provision is more complicated. Again, that provision punishes the hanging of a noose in a public place, such as a park. And such activity constitutes symbolic speech, a category which the Supreme Court has held is generally fully protected by the First Amendment. Importantly, it is not clear that there is any underlying illegal act committed by the person who hangs a noose in such a location. The government does not, and constitutionally cannot, generally prohibit using symbols to express messages in public parks. Thus, if the hanging of the noose in the park is to be made a crime, that conclusion must be based solely on the message communicated by this symbolic act (and the reaction the actor expects it will evoke). Yet punishing symbolic speech because of the message it communicates and the way people react to it necessarily raises free speech problems that need to be resolved.

The California legislature has drafted AB 412 with some care, however. Hanging a noose in a public park is made a crime only if it is done for the purposes of threatening and terrorizing other individuals. This is an important addition to the bill, because threats are not like other kinds of speech. Along with obscenity and "fighting words," true threats (as opposed to rhetoric or hyperbole) are considered constitutionally-unprotected speech and may be subject to criminal sanction. A state can pass a law making all true threats criminal. Thus, if this bill passes, California might argue that the law is constitutional because the only speech it regulates are threats.

When Can the Government Regulate Only Some Subject-Specific Threats?

But if California were to provide only that quick answer, it might fail in its effort to sustain this law, because of the bill's selectivity. AB 412 does not prohibit all true threats; it prohibits only one particular kind of symbolic threat -- a threat communicated by the hanging of a noose. Moreover, as the preamble to the bill makes clear, the legislature believes that this is a particularly reprehensible kind of threat because it is intended "to intimidate persons based on racial characteristics."

In light of the fact that it is permissible for the state to prohibit all true threats, one might reasonably ask why it should be problematic for the state to selectively prohibit racist threats in particular. That's a good question, and the Supreme Court's answer is not entirely satisfying. To examine this issue, we have to look at one of the most convoluted First Amendment decisions ever written, the Court's majority opinion in R.A.V. v. City of St. Paul, decided in 1992. R.A.V. involved a challenge to a city ordinance that prohibited provocative fighting words, but only if those fighting words aroused anger or resentment on the basis of race, color, religion or gender.

In striking down the city ordinance, the Court held that laws that discriminate on the basis of content – that is, laws that treat some subject matters of speech differently than others -- within a category of unprotected speech (like threats or fighting words) must be subject to strict scrutiny, an extremely rigorous standard of review that is difficult to satisfy. Thus, according to the Court, while it is permissible to criminalize all true threats or all fighting words, if a state singles out racist threats or racist fighting words for special regulation, then that law must survive strict, skeptical judicial scrutiny.

To justify this conclusion, the Court explained that when a law singles out a particular threatening message or set of messages for sanction, such as racist threats, there is a substantial risk that the state is trying to punish the ideas that underlie the threatening message rather than, or in addition to, the threat itself. And no matter how despicable racist ideas may be, the First Amendment protects them, because it protects all ideas, even those grounded on hatred and evil.

The Court's decision in R.A.V. was unprecedented. Moreover, its holding suggested that a great many laws punishing unprotected speech might be vulnerable to constitutional challenge. For example, it would be quite common for states to single out particular kinds of threats – such as threats to peace officers, or threats inducing mass hysteria -- for special criminal penalties. All such content-based threats might be in constitutional jeopardy under the general rule set out in R.A.V.

The Exceptions the Court Recognized to R.A.V.'s General Holding

Recognizing the Pandora's box it was opening with its overarching analysis, the R.A.V. Court tried to develop a laundry list of exceptions to its general rule. These exceptions were intended to separate out content-based regulations of unprotected speech that raised some real risk of suppressing ideas – that is, those that had a strong flavor of censorship -- from those that did not create such risks.

The most important exception identified in R.A.V. provides that a state can discriminate on the basis of the content of some threat or "fighting word" "when the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue" is unprotected. At first glance, this sounds like unintelligible legalese. But the Court attempted to explain what it was trying to accomplish with this exception this way: If one looks carefully at the definition of a category of unprotected speech such as obscenity or threats or fighting words, it quickly becomes evident that the category itself is defined by specific content. Obscenity, for example, is defined as sexually graphic speech that appeals to the prurient interest. Threats are defined as speech intended to intimidate and arouse fear in the person to whom the threats were directed.

Once we see that unprotected-speech categories are themselves defined by the content of the speech, the Court said, we should realize that it is acceptable for government to discriminate within the unprotected category for the same reason that the category is entirely proscribable. Thus, since obscenity can be banned because an appeal to prurience is bad, government can decide to ban only the most prurient obscenity. Since threats are bad because they are frightening, government can single out only the most frightening threats and treat them specially. In sum, by focusing on the very content that was used to define a category of unprotected speech, a state's law would not arouse suspicion that government was trying to suppress ideas, any more than if government simply banned the entire category of unprotected speech.

The Aftermath of R.A.V.Virginia v. Black

Lower courts struggled to make sense of the R.A.V. opinion. Then in 2003, in Virginia v. Black, the Court reviewed a challenge to a Virginia law that prohibited burning a cross on someone else's property, or in a public place, for the purpose of intimidating any person or group of persons. This law obviously discriminated on the basis of content within a category of unprotected speech (speech intended to threaten and intimidate). It did not prohibit all intimidating threats; it prohibited only those threats communicated through a particular symbol, a burning cross. Moreover, the meaning of this symbol was and is seared into the cultural consciousness of Americans. The burning cross was and is indelibly associated with racism and the terrorism perpetrated against African Americans by the Ku Klux Klan. Thus, under any straightforward interpretation of R.A.V., the Virginia law prohibiting cross-burning should have been struck down as violating the First Amendment.

Instead, however, the Court upheld the statute. Justice O'Connor's majority opinion argued that a burning cross is an especially frightening kind of threat, and that it had been used to terrorize people other than African Americans for reasons that had nothing to do with racial hatred, such that there was no danger that Virginia was trying to punish racist ideology. Accordingly, Virginia's law could be upheld under the exception to the R.A.V. rule, discussed above, which permitted states to punish the most threatening of threats without punishing the rest.

Reading the exception in R.A.V. this way, however, creates a hole in the R.A.V. rule – and a hole through which a legislature could drive a truck. Virginia, after all, did not enact a law prohibiting a multitude of threats that experience had demonstrated were the most frightening. Instead, it prohibited only one threatening symbol, and that was a symbol that is powerfully associated with odious but constitutionally-protected racist ideas. It is difficult to avoid the conclusion that by enacting a law to criminalize the burning of a cross to threaten and intimidate others, but failing to criminalize other highly threatening symbols, the legislature was focusing on the racist ideology that the burning cross so often represents, and not just the threatening message communicated by this particular symbol.

If R.A.V. does not require the rigorous review of a law that singles out a burning cross for criminal sanction, then we may reasonably assume that laws that prohibit other threatening symbols or messages associated with racism, anti-Semitism, homophobia, and similarly unacceptable ideas should also escape serious judicial review. Certainly, a law prohibiting the hanging of a noose to communicate a threat, such as California's AB 412, stands a good chance of being upheld if we employ the Virginia v. Black analysis – notwithstanding the language in the California bill's preamble that demonstrates the legislature's focus on the noose as a racist symbol.

What then is left of R.A.V. in cases involving the prohibition of symbols associated with hate and bigotry which are used to communicate threats? Very little, we think. When all is said and done, the reasoning of R.A.V. may be described as little more than a judicial analysis "full of sound and fury, signifying nothing." That might be the correct constitutional result – both of us were critical of R.A.V.'s sweeping First Amendment proclamations when the case was decided – but this is yet another doctrinal mess that the Supreme Court would do well to clean up.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law

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