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The Supreme Court at work on the First Amendment is not a pretty sight. Freedom of speech may be a noble concept, but the actual stuff of such cases tends to be sordid. In Virginia v. Black, decided earlier this month, the stuff was particularly repellent: cross burning. The court confronted the question of whether a state could punish cross burning done “with the intent of intimidating any person or group of persons.” The court devoted much energy to analyzing the nature and history of cross burning, and pondered the extent to which the practice conveys a repugnant but constitutionally protected message (white supremacy) as opposed to unprotected threats of violence. Unfortunately, the court failed to explore the meaning of the word “intimidation.” In a curious display of etymological sloppiness, the court casually placed “intimidation” in the neighborhood of “fighting words” and “true threats” of violence. Ignoring both the dictionary and Virginia case law, the Supreme Court accidentally created a new species of proscribable speech: expressions that intimidate. This category covers threats of violence, but it also embraces a great deal of speech that merely makes listeners uncomfortable. The State of Virginia declared it a felony . . . for any person or persons, with the intent of intimidating any person or groups of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. The statute also provides that any such cross burning is prima facie evidence of an intent to intimidate. In their separate opinions, the justices looked back to their 1992 decision in R.A.V. v. St. Paul, where they confronted a somewhat similar ordinance. The city of St. Paul had rendered it unlawful to place on public or private property such symbols as burning crosses and swastikas “which one knows or has reasonable ground to know arouse anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender . . ..” The court ruled the St. Paul ordinance unconstitutional because it discriminated on the basis of content. For example, the right to use the very same symbols to arouse anger on the bases of political affiliation, union membership or homosexuality was left unregulated by the ordinance. The Constitution, said the court, could not countenance such content-based discrimination. In Virginia v. Black, the court found the statute acceptable because it contained no such discrimination. All cross burning — whether intended to intimidate blacks, Jews, Catholics, union members, homosexuals, Democrats, Republicans or anyone at all — was equally proscribed. Three justices dissented, arguing that the Virginia statute unconstitutionally discriminated by singling out cross burning “from the field of all proscribable expression meant to intimidate.” But Justice Sandra Day O’Connor, on behalf of the plurality, declared that the First Amendment permitted states to outlaw “particularly virulent” forms of intimidation without outlawing all forms. Justice Clarence Thomas, writing for himself, stated that cross burning with intent to intimidate was conduct, not speech. There was, he concluded, no need to consult the First Amendment at all. The court’s fundamental error — and it pervades each separate opinion, concurring and dissenting — was to leave the meaning of “intimidation” unexplored. Instead, the court looked back to R.A.V. v. St. Paul, where it had likened the use of burning crosses to “fighting words.” The “fighting words” doctrine originated 60 years ago in Chaplinksy v. New Hampshire. There, the court upheld the conviction of a Jehovah’s Witness for calling a city marshal “a damned fascist” and a “God damned racketeer,” under a statute making it a crime to “address any offensive, derisive or annoying word” to anyone lawfully standing on a street. The court held that “fighting words” — words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace” — could be proscribed. Thirty years later, in Cohen v. California, the court narrowed the “fighting words” doctrine to apply only to words “which have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” In Cohen, the court refused to deem the expression “Fuck the Draft,” worn on the back of a jacket, “fighting words,” because it was not directed at any particular person. Intimidating speech is not “fighting words.” Those who hear intimidating speech are frightened. Those who hear “fighting words” are angry. To the extent violence enters the analysis, the two categories are virtually antithetical: With intimidating speech, the speaker is responsible for any violence; with “fighting words,” the listener is. Justice O’Connor may have sensed the incongruity so she also briefly discussed “true threats” case law. She cited Watts v. United States, where a man was convicted for stating, “If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.” The conviction in that case was overturned because the statement was deemed mere political hyperbole. By contrast, Justice O’Connor stated, a “true threat” is a statement meant “to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.” Such “true threats” could be proscribed. But the “true threats” doctrine fits the Virginia statute no better than “fighting words.” The Virginia statute outlawed not threats of violence, but rather intimidation. Justice O’Connor simply assumed that intimidating speech equates with “true threats,” i.e., threats to commit acts of unlawful violence. It doesn’t. The American Heritage Dictionary defines “intimidate” as: “1. To make timid; frighten. 2. To discourage or inhibit by or as if by threats.” This definition shows that intimidation may encompass threats, but not necessarily. If it does encompass threats, they need not be threats of violence. The primary definition of intimidation is broad; it means to make afraid, with or without threats of violence. Significantly, the two synonyms offered by the Dictionary are “dismay” and “threaten.” One may “dismay” without issuing threats of violence. Virginia case law treats the term “intimidation” in the same broad fashion. In Sutton v. Commonwealth, the Virginia Supreme Court considered whether a defendant had engaged in sexual intercourse with a victim against her will “by intimidation.” The court noted that the state’s General Assembly had expanded the definition of rape to include a “prohibition against sexual intercourse with a woman against her will by threat or intimidation,” then observed: There is a difference between threat and intimidation. As used in the statute, threat means expression of an intention to do bodily harm. Intimidation may occur without threats. Intimidation, as used in the statute, means putting a victim in fear of bodily harm by exercising such domination and control of her as to overcome her mind and overbear her will. (emphasis added) Intimidation, therefore, is a term too broad to fit within the “true threats” rubric. It may occur without threats. To Justice Thomas, this distinction would probably not matter. To him, cross burning is always associated with threats of violence, and so he would proscribe it. His view, unshared by his colleagues, has at least the virtue of intellectual consistency. The other justices acknowledged that cross burning could also be associated with non-threatening, constitutionally protected expressions of white supremacy. Having made that concession, their decision to uphold a ban on intimidation-based cross burning presents grave First Amendment problems. To hark back to Justice O’Connor’s reasoning, it may be constitutionally permissible for states to proscribe “particularly virulent” forms of threats of violence without proscribing all such threats. But may the states select and proscribe “particularly virulent” forms of speech, which merely frighten or make timid, without banning all such forms? Such power would vest the states with enormous discretion to control the boundaries of public discourse. Consider, for example, a slogan favored by leftist intellectuals in the 1930s: “It is later than you think.” Their purpose in employing such an ominously understated slogan was to frighten the upper classes and render them uneasy. No doubt they often succeeded in those turbulent, violent years. Under the court’s reasoning, it would have been constitutional for a state to ban the use of such an unsettling expression. The American Nazis who marched through Skokie in 1977 did not threaten violence against the Holocaust survivors residing there. (In fact, the main concern of the police was protecting the Nazi marchers from violence.) But they did intend to intimidate the Jews, to render them afraid. Under Virginia v. Black, their march could have been prohibited. No one can deny that cross burning has been historically related to lynching and racial atrocities. But Marxism has been historically associated with murderous class warfare, and Nazism with genocide. Still we allow marchers to carry banners bearing the hammer and sickle, and the swastika. We do so even though we know that many who view the spectacle will feel sick with fear and dread. If the test is intimidation, rather than true threats of violence, where does one stop? Intimidation is in the heart of the beholder. Feminists like Catherine MacKinnon argue that pornography has been historically linked to violence against women. They would place pornography outside the protection of the First Amendment. If the test is whether pornography frightens or renders women uneasy, then, under the reasoning of Virginia v. Black, they might well be right in insisting on its suppression. The court’s decision arrives in an age of political correctness, with many colleges and law schools banning unpopular speakers. The suppression is often committed in the name of protecting the feelings and sensibilities of the listeners. This decision is likely to strengthen the spirit of the censors. The Supreme Court opened a new and dangerous pathway by deciding that speech that intimidates may be treated as “fighting words” and “true threats.” One may now expect new statutory challenges to abhorrent but previously protected speech, challenges launched by those who may face discomfiture but who do not face real threats of violence. Down this pathway may lie a quieter and more comfortable civil society. Certainly, there lies a duller one. Contributing Writer Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs, specializes in intellectual property law.

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