Thursday, April 05, 2007

Yale Flag Burners

As reported in yesterday's NY Times, early Tuesday morning, three Yale students were arrested for burning a flag hanging from a private home (not theirs). As of late Wednesday night, one of the students had been bailed out while the other two remained in jail pending the posting of bail. According to a story in the Yale student newspaper, a false rumor had been circulating around the Yale campus that the house belonged to Sen. Joe Lieberman.

The story nicely illustrates the inaccurate way in which we often speak about constitutional rights. We sometimes say that Texas v. Johnson establishes a constitutional right to burn a flag as a form of political protest. But that's clearly not true. The case merely establishes a right not to be penalized on account of the message one communicates if one burns a flag as a form of political protest. Thus, it stands as no obstacle to the charges that have been brought against the Yale students: arson, reckless endangerment, criminal mischief, and breach of the peace. Assuming that the students would have been charged exactly the same way for burning a towel with the intent to convey no message at all, the City of New Haven and the State of Connecticut have not in any way targeted expression.

To be sure, if the students can show that they are the victims of selective prosecution on account of their political message, then they'll have a good claim under the combination of Johnson and
Yick Wo v. Hopkins (which is the standard citation for the proposition that discriminatory enforcement of a facially valid law is unconstitutional). But what are the odds that they can either demonstrate a pattern of leniency towards other public fire-setters or get a government official to say that the students were targeted because of their message?

It will be interesting to see whether the students or their lawyers nonetheless try to make a free speech argument. So far they don't even appear to be saying that they burned the flag as a political message, much less that this was the reason they were arrested. According to the Yale Daily story, upon their arrest, the students told the arresting officers that burning the flag "was a stupid thing to do." If they weren't going to shout "Death to America," they probably would have done better to lawyer up.


Sobek said...

I can't imagine they'll fight at all, let alone pay for anything as complicated as a First Amendment argument.

I agree that under Johnson, prosecution for the crimes mentioned is perfectly constitutional. I also agree that if they are prosecuted for the content of a certain message (I hate America, I hate flags), that is protected by the Constitution. What if the students argue that they are protected because they were trying to send the message, "We don't like flag-wavers around here" or, in this case, "We don't like Joe Lieberman." Assuming they can prove that they were arrested for one of those two messages, how does your analysis work out?

I'm thinking here in terms of the cross-burning case (Virginia v. Black? I think that's the one). In your opinion, should that holding be extended to cover flag burning as a threat? Or is the burning cross sui generis because of the history of hatred and violence behind that particular symbol?

Yeah, I'm a heartless conservative bastard, but I'm not trying to trick you or anything. I'm just wondering how you think the Court would/should answer that.

Michael C. Dorf said...

Nice question, Sobek. The S Ct cases distinguish between laws that target "hate speech" (forbidden) and those that target "hate motives" (permissible). So two thoughts:
1) If the Yale flag burners were prosecuted under a general anti-intimidation statute, that would be fine;
2) If the Yale flag burners were prosecuted under a statute that made it a special crime (or enhanced the penalty for some other crime) where the perpetrator is motivated by the desire to silence a fellow citizen (such as a flag waver), that would also be fine.

egarber said...

Mike said:

1) If the Yale flag burners were prosecuted under a general anti-intimidation statute, that would be fine;

Help me grasp Virginia v. Black. My understanding is that the court ruled a state may ban flag burning with the intent to intimidate, because of the particular history behind that form of "expression."

But that doesn't necessarily equate with saying a state can thereby ban ANY type of expression that can intimidate, does it?

What if I put up a picture on private property of a Christian burning a copy of the Koran? Horribly insensitve and arguably "intimidating" to Muslims (a minority) in my deep south state, for sure -- but could a state ban that via Virginia v. Black?

Or would any "anti-intimidation" statute not involving cross-burning require more specific evidence of the threat -- i.e., plans to attack a mosque, etc.?

Sobek said...

"Or would any 'anti-intimidation' statute not involving cross-burning require more specific evidence of the threat ..."

That might depend on where the burnt object is located. In the cross-burning case, and this flag-burning case, the object was located on the property of the party to be intimidated. That sends a far more direct and threatening message than, for example, if someone burns a cross on their own front lawn, to intimidate blacks in general, or burns a flag on his own porch.

If I burn a Koran on mosque property, that's far more threatening to frequenters of that particular mosque than burning a Koran on my own property, presumably to intimidate Muslims in general (but no specific Muslim in particular).

egarber said...

I said:

Help me grasp Virginia v. Black. My understanding is that the court ruled a state may ban flag burning with the intent to intimidate, because of the particular history behind that form of "expression."

I meant CROSS burning, not flag...

egarber said...

Thanks Sobek.

That might depend on where the burnt object is located.

That wasn't a bright line rule in Virginia v. Black though, correct? It seems to me that erecting anything on someone's property (vs. leaving a leaflet or mailer) could be deemed trespassingor something close, so why would that be a speech claim at all? (If I put a Richardson for President sign in my neighbor's yard, I can hardly claim a first amendment right, I wouldn't think.)

I guess one question I'm asking is -- was Virginia v Black about singling out cross burning, or was it a general ruling about any kind of "expression" that intimidates? My understanding is that it's the former.

Sobek said...

Professor Dorf, can you tell me which cases you're relying on, other than Black. Egarber asked basically the same question as me -- Black can be read to apply only to cross burning, as a particularly pernicious form of hateful intimidation, or it can be read to apply to any intimidating speech (e.g. burning a Koran on the steps of a mosque, burning a copy of Brokeback Mountain on the porch of a homosexual, burning a model of a car driving off a bridge on Ted Kennedy's porch, etc.)

That's my question. The history of cross-burning in America has a certain history to it. Flag burning has a very different history, although in this case it may very well have been done with a similar motive -- to intimidate the property owner. Your response to my original question seems to involve a broad reading of Black, or else reliance on some other case.

Sobek said...

"That wasn't a bright line rule in Virginia v. Black though, correct?"

I'm making an argument from my assumption that one act is inherently more threatening than another, rather than a reliance on anything specific in Black, which I haven't read in a couple of years. So no, I don't think it's a bright line rule.

But it also has not historically been the practice of Klansmen to burn crosses on their own lawns to intimidate blacks in general. That hate speech is pernicious because when you put the cross on a particular lawn, it constitutes a direct threat to a very limited and specific group of people.

Again, I'm reasoning from first principles, rather than relying on specific cases.

egarber said...

Actually, wasn't Virginia v. Black a companion ruling? One of the parties actually burned a cross on his own property, I thought (or allowed it).?

But yeah, professor Dorf started this -- let's make him answer :-)

egarber said...

Your response to my original question seems to involve a broad reading of Black, or else reliance on some other case.

OR, since I think Black was about more than erecting something on someone else's property, it's that neither Black NOR Texas v. J say much about the state's general ability to thwart physical intimidation -- through trespassing, arson laws, etc. And that takes us back to Mike's original post -- i.e., arson laws are pretty easily enforced without "account of a message".In fact, they don't relate to speech at all.

Michael C. Dorf said...

I had in mind RAV v. St. Paul and Wisconsin v. Mitchell.

PG said...

You want to be clear on what VA v. Black actually did. The statute made it a felony for any person, with the intent of intimidating any person or group, to burn a cross on the property of another, a highway or other public place; and specifies that any such burning shall be prima facie evidence of an intent to intimidate a person or group. Burning a cross on your own property was still legal. The Court majority stripped the "prima facie evidence" part out and required the state to prove intent, but the special status of cross-burning (I'm pretty sure that intimidation by non-cross-burning means is a misdemeanor) remains. Thomas emphasized the special history of cross-burning in his opinion that the prima facie aspect should have been left in, but he also thought Johnson was wrongly decided.

So inasmuch as these idiots were burning someone else's property, while standing on someone else's property, whether it's a flag or laundry on the line is irrelevant.

I think intimidation normally required a certain degree of specificity, at least under VA law. Computer intimidation means either sending messages to a specific person, or posting threats that make clear who you're threatening. Aggressive driving can be prosecuted when it's not a hazard to others as long as it is done "with the intent to harass, intimidate, injure or obstruct another person." The cross-burning statute's language of group intimidation seems unusual, and rather closer to the European concept of "group libel" than anything in U.S. jurisprudence. Though hate crimes draw their federalizing force from the attempt to create fear in all people in a particular group, they nonetheless still have to be directed at individuals or their property.

Regarding the question of trespass by political leafletters, I think someone who posts his property with signs that say, "We Set the Dawgs on Democrats" isn't violating anyone's 1st Amendment rights by saying that he does not want certain people on his property.

egarber said...

Burning a cross on your own property was still legal.

That may be inferred from the VA law in question, but I'm not sure that's what the SCOTUS ruled in that case.

Please correct me where I'm wrong, but in one of the companion cases, a cross was burned on someone's private property -- in this case a willful landowner who took part in the rally. (I can't imagine there's anything meaningful in the distinction that he wasn't the one who physically erected it).

Now, that case was thrown out I think, but only because of the prima facia violation, not because the court ruled you're always free to burn a cross on your private property.

I think in this case, people could see the cross as they drove by the landowner's private field , so the sheriff arrested Black.

In other words, I think this means you *might* be able to burn a cross on your own property, or maybe not, depending on the state's ability to prove you intended to intimidate via that expression.

So to the question Sobek and I raised , I *think* this ruling selectively put cross burning into a class of proscribable speech with less protection (sort of like "fighting words"). If I'm right, a similar law against FLAG burning to intimidate (on private property) wouldn't stand (at least under this precedent), because there has been no similar finding of harsh history for that form of expression.

But I also know that some First Amendment scholars were worried that this ruling might open the door to a lot of cherry-picking for speech carve-outs.

Sobek said...

I read Mitchell and re-read RAV and Black, and I don't think either of the former clarifies the latter with respect to this situation.

My understanding of Mitchell is that it allows a sentence enhancement for bad motives when punishing otherwise proscribable conduct. In this case, that might mean the government can prosecute these kids for arson and trespass, and enhance their punishment for their motives without running afoul of the First Amendment. (Even then, it's not at all clear whether the case applies only to racial bigotry, or whether it also applies to religious, gender, or, uh, "patriotic" bigotry).

The difference between RAV and Black is that in the former, the Court held that the city could not prohibit cross burning based on the content of the message -- that fighting words are not protected by the Constitution, but you can't prohibit only a certain subclass of fighting words because of the content of the message of that subclass. In Black, there was no (overt) content-based restriction in the language of the statute.

As a practical matter, I think the Black rule is a little too naive. It's like the argument that an ordinance prohibiting people from sleeping under the bridge doesn't discriminate against poor people because rich people are also prohibited from sleeping under the bridge. In Virginia, the only person who is going to burn a cross to intimidate others has a specific ideology, and it's clear the Virginia legislature knew that when it enacted the statute. "Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan." 538 U.S. at 353.

Now back to my hypo and the Black case. O'Connor's majority opinion vacillates between implying that cross-burning is sui generis, and implying that intimidation of any sort may be proscribed. For example, she uses broad terms to note that "the First Amendment also permits a State to ban a 'true threat'" ... later defined as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." 538 U.S. at 359 (internal quotations omitted). Further, "a prohibition on true threas protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur." 538 U.S. at 360.

All of that language can easily apply to the guy who burns a flag to communicate the message "I hate you, Joe Lieberman."

But this language is sandwiched between a long section describing the history of the KKK and violence committed by it, and specific reference to "cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation." 538 U.S. at 363. And "Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. ... a State [may] choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm." Id.

If I go out on my porch and see my flag is on fire (and I note that says "death to flag wavers!!!), I will have a distinctly different reaction than if I see a burning cross on my lawn. Is the difference constitutionally significant?

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