Neo-Nazi groups have paraded around Charlottesville with tiki torches at least three times in the last few months.
On May 13, 2017, a group led by Richard Spencer gathered in Emancipation Park, protesting the removal of the statue of Robert E. Lee.
On August 11, 2017, about 200 neo-Nazis marched with tiki torches around the Rotunda at the University of Virginia, using those tiki torches as weapons against UVA students and staff who were standing around a statue of Thomas Jefferson.
And again on October 7, 2017, about 40 neo-Nazis came back to Emancipation Park, with tiki torches. On each of these occasions, those bearing torches were chanting racist slogans — “Jews will not replace us” and “Blood and soil” (a Nazi slogan from the 1930’s). (They also were chanting, rather improbably, “Russia is our friend.”)
For many of us, the sight of torch-lit demonstrations and marches adds a note of menace and threat to the offensive speech, and that image has prompted a call from Vice Mayor Wes Bellamy for those who assembled by torch light to be prosecuted under Virginia’s cross-burning statute, Va. Code §18.2-423.01.
§ 18.2-423.01. Burning object on property of another or a highway or other public place with intent to intimidate; penalty.
A. Any person who, with the intent of intimidating any person or group of persons, burns an object on the private property of another without permission, is guilty of a Class 6 felony.
B. Any person who, with the intent of intimidating any person or group of persons, burns an object 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.
While subsection (B) might seem applicable to a Nazi torch-lit parade, the United States Supreme Court has made it quite clear that Richard Spencer and his friends can’t be prosecuted under this statute.
The big case on this is Virginia v. Black, 538 U.S. 343 (2003). This opinion decided three Virginia cases that had been consolidated for the purposes of the appeal to the Supreme Court. I recommend reading the majority opinion, at least, for its concise history of the KKK; it dovetails with what we have been learning about the “Second Coming of the Klan” in Charlottesville in the 1915-1925 time frame.
Barry Black and his friends in the KKK held a rally on private property in Carroll County in southside Virginia — lots of racist talk about shooting black people and Democrats like the Clintons, topped off by setting fire to a 30-foot tall cross.
Richard Elliott and Jonathan O’Mara, as well as a third individual, attempted to burn a cross on the yard of James Jubilee, an African-American who was Elliott’s next-door neighbor in Virginia Beach, Virginia. Elliott and O’Mara were not affiliated with the Klan, but Elliott was having something of a feud with Jubilee. The next morning, as Jubilee was pulling his car out of the driveway, he noticed the partially burned cross approximately 20 feet from his house. After seeing the cross, Jubilee was “very nervous” because he “didn’t know what would be the next phase,” and because “a cross burned in your yard … tells you that it’s just the first round.”
All 3 cases involved §18.2-423, close kin to §18.2-423.01. §18.2-423 prohibits burning a cross with the intent to intimidate a person or group of persons, and it contained a provision that the burning of such a cross shall be “prima facie evidence” of an intent to intimidate (meaning that the government wouldn’t have to prove anything else about your intent, but you would have to prove you didn’t have such an intent). The US Supreme Court held that:
1. A law that bans conduct, including cross burning, when done with the knowledge that the conduct would “ ‘arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender,’ ” is unconstitutional.
2. A law that bans conduct that amounts to a “true threat” is constitutional. “True threats” encompass 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.
3. By implication, a law that bans conduct that is generally menacing or threatening, but that does not convey a threat to commit an act of violence to a particular individual or group of individuals, would be constitutional. [Let me throw in something here — when the case uses the phrase “a particular … group of individuals,” the Court does NOT means “We’re going to kill Jews and blacks.” The Court means “We’re going to kill Joe and his family.”]
4. Virginia can prohibit cross-burning when it is done to intimidate someone. Virginia can single out cross-burning among other forms of expression, because history shows that “burning a cross is a particularly virulent form of intimidation.”
5. So if the KKK burns a cross on your lawn, it is reasonable to assume that they are seeking to threaten and intimidate you and your family. But if the KKK burns a cross on a sympathizer’s farm on a hill outside of town, without any more particular reason to think that the threat is directed toward anyone in particular, that is not prosecutable.
6. §18.2-423 was unconstitutional because of its presumption that if you are burning a cross, you are doing it to intimidate someone in particular.
Barry Black’s charge — that he lit a cross on someone else’s land without a specific target for intimidation — was dismissed because the evidence did not establish that he had done it with the intent to intimidate a particular person. Richard Elliott and Jonathan O’Mara had their cases sent back for retrial without the unconstitutional presumption, because a jury could certainly believe that when they burned a cross on someone else’s land, that was a direct and personal threat to a particular person.
So where does this leave Charlottesville and a desire to prosecute the tiki-torch brigade? Let’s go back to the wording of the statute.
Subsection (B) provides that it is a felony to:
• “burn an object on a highway or other public place”
• “with the intent of intimidating any person or group of persons”
• “in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury”
The first element is clearly fulfilled, but the Supreme Court’s command that the threat be to a particular person, and the further requirement that the threat must “have a direct tendency” to make someone else afraid, are problems. The language that requires that the burning “have a direct tendency” is intended to rule out claims that the burning created an atmosphere of intimidation. At least under the facts as I know them, there would be no proof on these elements.
So — I don’t see any likelihood of a prosecution under the cross-burning statute under the facts as I know them.
I’ll discuss in another post tomorrow or the next day some specific tweaks to existing laws that might allow arrest and prosecution for future tiki torch parades.
