Mimesis Law
13 November 2019

Virginia Court of Appeals: 1st Amendment Does Not Protect Noosed Dummy

November 23, 2016 (Fault Lines) — Jack Eugene Turner is no one’s idea of the perfect neighbor. On the same day that nine black Americans were gunned down in a South Carolina church, he hung a black dummy from a noose in his front yard.

Turner’s neighbors, who are black, objected. When the police asked why he had hung the dummy, he told them that it was a scarecrow, but upon further prodding, said that he was a “raciest,” and that he liked “black people but not n*ggers” (an observation commonly made by racists because Chris Rock said it first).

Turner was arrested for violating Virginia’s “displaying noose” statute, which makes it a felony to display a noose in any public place with the intent of intimidating any person or group of persons. Here’s the statute:

A. Any person who, with the intent of intimidating any person or group of persons, displays a noose on the private property of another without permission is guilty of a Class 6 felony.

  1. Any person who, with the intent of intimidating any person or group of persons, displays a noose on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.

Turner argued that he had a constitutional right to put the dummy and the noose in his yard, arguing that even if his views were racist, they were still constitutionally protected. Today, the Court of Appeals of Virginia disagreed, holding that a noose in his front yard was, by its nature, a “true threat” unprotected by free speech. The decision was unanimous.

You could sort of see where the opinion was going when the he Court spent a lot of time talking about Turner’s neighbors’ reaction to the display. Allegedly, the neighbors didn’t like talking to him,  didn’t like that he put a Confederate flag in his window facing their home, didn’t like that he put up a sign saying “black n*gger lives don’t matter, got rope.”

After he hung up the dummy, the neighbors worried that they’d come home one day to find he had vandalized their property with a spray can. To boot, he was an unpleasant crank who would call the police on them for a “humming noise” coming from their home and, on at least one occasion, flipped them off as they drove by.

But the question remained: is the display of a black man in a noose in one’s own front yard a protected display of symbolic speech? The Court of Appeals seemed to find it an easy question:

“Intimidation” rises to the level of a “true threat” in cases where, as here, the person communicating the threat “directs [the] threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. Thus, pursuant to Black, we hold that displaying a noose in the manner Code § 18.2-423.2 proscribes constitutes a “true threat,” and, like cross burning, it is undeserving of First Amendment protection. Considering the evidence presented at trial in the light most favorable to the Commonwealth, Turner intended to intimidate others via his noose display.

In short, all the racist stuff that the guy did suggested that he was trying to intimidate someone, in some way, by placing the noose in his yard. Maybe it was his neighbors. Maybe it was all black people. The court doesn’t bother to specify, simply stating that if he “intended to intimidate others with his noose display,” there was no right to do it.

Gosh, what an easy rule. Rather than requiring that Turner direct a threat at a specific person, all that was required was that he do something that people could find intimidating, and that would supply the requisite intent, all without considering the context in which he was making the statements. Was Turner plausibly putting the noose in his yard because he was threatening to hang a specific person? Probably not. But his speech was distasteful as applied to a group.

The closest case, factually, and the one the court spends the most time with is Virginia v. Black, where the Supreme Court held that a statute banning cross burning in a public place was constitutional, although it held that a provision allowing a presumption of intent to intimidate was not. In Black, the Court noted the long history of using burning crosses a method to intimidate:

In sum, while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful.

But Black doesn’t hold that all cross-burnings carry a message of intimidation. Sometimes, they’re just about being racist in a big, friendly group. And when that’s the case, the cross-burning is perfectly protected.

Here, the Court doesn’t really get into whether Turner’s neighbors, or anyone, feared actual violence because of his noose display. It doesn’t get into whether the “true threat” presented by Turner’s noose was any more imminent, unequivocal, and serious than the threat to shoot the president held to be protected by the United States Supreme Court in Watts.

If the government can argue that the mere display of a noose in one’s yard threatens and intimidates others on the basis of race, then there’s nothing to stop it from arguing that burning a flag would intimidate on the basis of nationality. It has confused “group of people,” as in “you intimidated a group of people when you hung a noose in front of their home, with “group of people” as in “any race, nationality, or ethnicity.”

The real message conveyed wasn’t that the neighbors were in danger. It was that Turner was a nut. And we can’t ban all nutty speech on the premise that people engaging in it seem more dangerous than those without tinfoil hats.

The opinion ends with a bunch of Gertruding about Justice Jackson saying that “the very essence of constitutional freedom of press and of speech is to allow more liberty than the good citizen will take.” But just as you can’t burn down the First Amendment to keep cross from being lit ablaze, you can’t let it hang to keep rope out of front yards. The Virginia Court of Appeals didn’t take that seriously.

6 Comments on this post.

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  • Anon
    23 November 2016 at 11:08 am - Reply

    A nosed dummy implies a direct threat of murder. It goes beyond speech. The Virginia Court of Appeals got this one right.

    A burning flag is disrespectful, but it doesn’t imply a threat to do murder. It is speech and has protection.

    Just my opinion.

  • Ernie Menard
    23 November 2016 at 9:40 pm - Reply

    What am I missing here? The statute reads the private property of another or highway or other public place. The guy had the display on his own property.

    • Anon
      24 November 2016 at 4:42 pm - Reply

      I think the statute defines a public place as anywhere directly visible from a road or public property. This wouldn’t seem to include the “curtalige” area of a persons property. Only way this makes sense. I wondered about it myself.

      • Anon
        24 November 2016 at 4:46 pm - Reply

        Excuse me, “cartilage” not “curtilige.”

        • maz
          25 November 2016 at 8:45 pm - Reply

          The incident having taken place in Rocky Mount, Virginia, I believe the appropriate legal term is ‘gristle.’

        • David Meyer-Lindenberg
          26 November 2016 at 8:48 am - Reply

          Anon’s comments are a work of art. And Andrew, thanks for this brilliant post.