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Supremes uphold ban on cross burning(21 posts)

Supremes uphold ban on cross burningDougSloan
Apr 7, 2003 3:02 PM
Looks like cross burning can be banned. Essentially, the Court (5-4) said it has the purpose of intimidation and threatening violence.

Strangely, the ACLU argued against the ban, despite the fact that only the KKK does this (from what I know). Not sure how I would have decided. I think it would depend on the circumstances. Burn it at KKK rally, no problem; burn on in a black family's front yard, big problem.



Opinion: http://supct.law.cornell.edu/supct/html/01-1107.ZS.html

http://www.virginialaw.com/va20030407break.cfm

http://www.csmonitor.com/2003/0408/p03s01-usju.html
Big mistake.czardonic
Apr 7, 2003 3:12 PM
Burning a cross on someone else's lawn should be prosecuted as the terrorist act that it clearly is.

Burning it on your own property with a group of your demented, racist friends is your own business, assuming it does not run afoul of local fire ordinances.
maybe we agreeDougSloan
Apr 7, 2003 3:27 PM
I think that is largely correct. A matter of legal nuance, actually the Supreme Court struck down part of the statute on the grounds that it allowed a "presumption" that cross burning entails a threat of intimidation or violence. Now, assuming the statute is revised accordingly, the state will need to prove a threat in addition to the burning itself. So, burning a cross at a remote Klan meeting may not be threatening, but doing so in another's front lawn probably will.

Doug
Maybe.czardonic
Apr 7, 2003 3:37 PM
But strictly speaking, I don't think that the "threat" of intimidation of violence should be relevant. If some jerk wants to burn a cross on his lawn across the street from my house, I say that's his right. I might even lend him my hose to put out his roof should the need arise -- that's just neighborly decency.

Of course, in my neck of the woods, the cross-burner would have more reason to fear for his safety than me, so that changes things quite a bit. But principle is principle. I think a threat has to be credible and imminent before the law should step in, and despite what the cross burning symbolizes, it does not cross that line.

Now, should that same person come after me with a noose, I'd open fire, prefereably with some kind of non-lethal immobilizing glue weapon.
big suprize!ClydeTri
Apr 8, 2003 5:37 AM
The right and left agree on this one...Czardonic nailed this one on the head.
damn. there goes my weekendmohair_chair
Apr 7, 2003 3:37 PM
I think they have a point. Cross burning has never been used as a means of protest like, say, flag burning. It has never had any other purpose other than to terrorize. So I don't see any reasonable free speech issues. I doubt the decision was intended to cover cross burnings on your own land. You can't terrorize yourself.

In a lot of ways, it's equivalent to firing guns off into the air outside your neighbor's house. Unless your neighbor has invited you over to shoot guns into the air, it's probably going to terrorize them. (Hopefully, they'll shoot back.)
Have you ever seen a cross burn?MB1
Apr 8, 2003 5:14 AM
I have-on a night ATB ride near the Cajon Pass in SoCal we rode right by a pull off where there were a bunch of pick-ups and folks with guns. Scared the %#!* out of us. They were probably breaking an awful lot of laws (discharge of firearms, a fire in a National Forest, public drinking and who knows what else) and didn't care at all.

Never rode anywhere near there again.
Question: Is swearing against the law?Captain Morgan
Apr 8, 2003 7:04 AM
Could I go to a public place, for instance a park playground where a bunch of kids are playing, and start swearing up the place? Although I am not too familiar with the use of such diction (except maybe on the golf course), my understanding was that it is against the law in many places. Why not the freedom of speech in this case, yet freedom of speech is recognized in cross burning?
In Chicago it isKristin
Apr 8, 2003 7:43 AM
Not sure how I feel about that one. Recently someone was convicted and fined for swearing in public downtown. If you're around someone elses kids, you should have enough decency to hold your tounge. But, for instance, should I have been breaking a law when I flipped-off that chick in the white Grand Am after she cut me off and slammed on her breaks?
It dependsCaptain Morgan
Apr 8, 2003 10:14 AM
It depends on whether she was hot or not (typical male answer).

Seriously, I never flip people off. I like to wave at them congenially and try to piss them off. Do you remember the Patton quote that "no one ever wins a war by dying for their country; they win a war by making the other poor s.o.b. die for HIS country." Similarly, if you get angry, the other person wins. You can only win by making the other poor s.o.b. angry at your heartfelt kindness (after you reciprocate by cutting them off, that is).
depends upon if it is "speech"DougSloan
Apr 8, 2003 8:04 AM
I can be illegal, depending on the circumstance. If you are making a public statement about that "[expletive] President", then you can say what you want. If you are just spewing off dirty words for fun or anger, not protected.

Doug
InterestingKristin
Apr 8, 2003 8:22 AM
Is that determined state-by-state or by the supreme court? Also, would the same rule apply to...say...prime time television?
both levelsDougSloan
Apr 8, 2003 8:26 AM
While the Constitution sets the parameters, states can be less restrictive, but not more. In other words, they can refuse or fail to ban certain things, but they cannot ban more than what the Constitution permits. Within that limits, it will vary highly by location.

Prime time television has other factors, such as FCC regulations, as they are permitted to use public transmission. That's why cable can do whatever it wants.

Doug
"Speech" doesn't just mean "talking."OldEdScott
Apr 8, 2003 8:55 AM
It is a fairly closely defined legal term. The Founders almost certainly could have added 'political' as a qualifier and reflected their intent pretty closely. They were basically concerned with freedom of political expression. They wanted you to be able to say "George Washington is an a-hole." They had no interest in protecting your right to say "OldEdScott is an a-hole" on RBR's non-cycling discussion forum.

The definition has grown to include such things as artistic expression. But it was never meant as 'freedom to talk.'
trueDougSloan
Apr 8, 2003 9:22 AM
Political speech is almost absolutely protected, and that's about a 99.999999% "almost." Commercial speech is lesser protected, and some things aren't even considered "speech" at all, even if it is talking, as you correctly state.

Doug
And some things that AREN'T talking are 'speech.'OldEdScott
Apr 8, 2003 9:27 AM
Flag burning, so example. Even Scalia and other conservative jurists have been willing to stiplulate that flag burning is 'speech,' since it is clearly political expression.

The only issue is whether the state has a compelling interest (public safety or some such) to restrict that particular 'speech.'
rightDougSloan
Apr 8, 2003 9:36 AM
..."compelling public interest" and "no lesser restrictive means" to accomplish the legitimate goal.

Doug
Here's why I asked the questionCaptain Morgan
Apr 8, 2003 9:25 AM
Why is the burning of a cross protected under free speech, yet cursing is not? I would argue that the burning of a cross is more obscene to many people than cursing. The history of cross burning, as I understand it, was a way to terrorize the black community. Somewhere there is a fine line regarding the right to free speech.

You can take a stance that you "hate black people", and then go to the extreme of saying that you "think all black people should be murdered." Obviously the first should be a protected right, while the latter statement probably should not. Where in the middle of these statements is the line drawn? I don't think our forefathers gave us this right so that we could advocate hatred against a particular people. I can understand flag burning a lot better than cross burning.
where the line is drawnDougSloan
Apr 8, 2003 9:35 AM
If your conduct or statements are intended to convey a message, especially a political message, then it's speech for 1st Amendment purposes.

If that message conveys a threat of imminent violence, and is perceived as such by the listener, then it has no 1st Amendment protection. If the message is intended to incite imminent violence ("fighting words"), then it has no protection.

So cursing, cross burning, flag burning, they each may or may not be protected, depending upon the circumstances.

Doug
My own take would be that cross burningOldEdScott
Apr 8, 2003 9:39 AM
may or may not be 'speech' depending on context.

It would seem to me that burning a cross at a KKK rally (assuming the rally itself is on private property, or legally constituted on public property) would be protected speech. The KKK has a political agenda larger than just 'hating blacks,' and burning a cross is part and parcel with that. (In fact, they prefer the term 'lighting' a cross, because they say it is to symbolize bringing the light of Jesus and the light of KKK ideas unto the world. I did a magazine story on those bastards a few years ago, and attended such a 'lighting.')

OTOH, burning a cross (even on private property across the street) in front of a black household with clear intent to terrorize would NOT seem to be political. It would certainly be a stretch to argue it is, unless you see racism and bigotry as purely political matters. Not many of us do.

I think the line is drawn between political association/activity (a Klan rally/lighting) and the pure personal malice of burning a cross to frighten specific individuals.
Thank youCaptain Morgan
Apr 8, 2003 10:07 AM
I agree with Doug's and your assessment. I thought the first few posts of this subject up above did not address these issues and it appeared that the authors were content to giving freedom of speech carte blanche.