|
|
|
|||||
|
George: More on cross-burning... Downing
Smith was concerned that the Virginia Supreme Court's decision would
now permit someone to burn a cross on Downing's land. What the Court said
was that if someone burns a cross on Downing's property without his permission,
that person may be prosecuted under and What I said was that the decision of the Virginia Supreme Court seems to me to be correct under the existing United States Supreme Court precedents. That should not be taken as meaning that I regard those Supreme Court precedents as themselves correctly decided. The law on threatening or hateful speech -- the so-called "fighting words" doctrine -- was first enunciated in a 1942 case, Chaplinsky v. new Hampshire. Simply put, it says that a government can punish speech that is reasonably likely to provoke a breach of the peace. It doesn't matter if the person is a liberal or a conservative, a racist white or a racist black. If he or she says something that would cause a reasonable person to want to punch him in the nose, he or she can be punished. In Virginia, we punish fighting words under the "curse and abuse" statute. That law does not specify a viewpoint that is objectionable. It doesn't say that it is against the law to advocate a KKK position in public. The fighting words can be political speech, but they don't have to be. They can be simply a personal insult to someone, having nothing to do with politics. The law is content-neutral. The problem in the Virginia cases, as with the Minnesota case decided in 1992, is that the law in question punishes in particular a particular viewpoint. The reason why cross-burning has been singled out is that it is such a powerful reminder and symbol of racial hatred. In other words, it is being singled out for punishment because of the message that cross-burning sends. The law is not content-neutral. In the development of every area of law, but particularly in constitutional law, the first cases decided tend to be the easy ones. Then someone says, "Well, what about this possible set of facts?" and we have to analyze the problem again, and again, and again. Eventually, as the initial position has been stretched to an extreme, the Court may decide that the way that it has been analyzing the problem has been all wrong. It is possible that we are getting to the point where the Court might say that the fighting words doctrine can't be stretched any more, or that there are some types of speech (pornography, maybe flag-burning, maybe cross-burning) that need to be limited in ways that that doctrine would not permit. This is not a ridiculous position; conservatives argue that flag-burning is different in this regard, and liberals might well argue that cross-burning is different in the same way. The Supreme Court says that we should permit them both in the "marketplace of ideas," and let the populace decide for itself. And there are those who argue that we as a society cannot (can no longer?) tolerate forms of speech that are so disturbing. This is an argument that has consumed political philosophers, courts and First Amendment scholars since James Madison's time, and before. The Supreme Court has decided -- perhaps for the moment -- that the First Amendment shows a constitutional philosophy in favor of allowing expression, no matter how odious, and trusting the citizenry to reject the odious speech. I am sorry if anyone felt that I was patronizing in my comments on the Court's decision. I did not mean to imply that the dissenting justices were idiots, or that those who agree with them are idiots. They have advocated a position that has some substantial following, among both conservatives and liberals. It might even be the one that the Supreme Court of the United States adopts, if the Court decides that the Chaplinsky "fighting words" doctrine should be changed. Lloyd Snook (electronic mail, November 12, 2001).
|
