(The Return of) Ignatz, by Sam Heldman

Tuesday, December 10, 2002

Supreme Court

Wednesday's first case in the Supreme Court is about cross-burning: Virginia v. Black. A few years ago they struck down, on First Amendment grounds, a Minnesota cross-burning ordinance:RAV v. City of St. Paul. This law is written differently and more narrowly, though. It provides
It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.
Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.
The theory of the supporters of this statute is that it doesn't violate the First Amendment, unlike the St. Paul ordinance, because it is limited to those acts of cross-burning that have an intent to intimidate. A divided Virginia Supreme Court struck down the law. Virginia, supported by the U.S. as amicus, wants the Supreme Court to uphold the law.

Blogger Kyle Still wrote, a few months ago, a thoughtful prediction that the Supreme Court would reverse in this case and uphold the law. I think I'm going to disagree. The reason goes back to Justice Scalia's opinion for the Court in RAV v. St. Paul. My guess is that the majority will hold the law violative of the First Amendment (and thus affirm) based on one or both of two theories: that the bare word "intimidation" is too broad and loose a concept to justify criminalization of expressive conduct; or (more likely, I'm guessing) that the state cannot validly choose to prohibit only one scumbag group's intimidating conduct while leaving other potential sorts of intimidating expressive conduct, based on other ideologies, unregulated. As Justice Scalia said in RAV, even if a state can regulate certain kinds of expressive conduct based on its secondary effects (e.g. intimidation), it can't draw sub-distinctions based on the ideological content of that speech; thus you can forbid obscenity, but couldn't allow all obscenity except for that which also contains certain ideological or political messages. My guess is that this principle will lead to the affirmance of the VA S.Ct. Could be wrong, of course, but I say "AFFIRM".

posted by sam 6:55 AM 0 comments


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