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Through all the outrage and acrimony surrounding the Jena, La., incidents � white students hanging two nooses in a tree on school grounds and an alleged assault on a white student by a group of black students � few have stopped to look carefully at the law that may apply. Both Louisiana and federal law include “hate crimes” statutes, and the distinction between a “hate crime” and “hate speech” protected by the First Amendment has been explained as follows: “Hate speech laws criminalize the actual utterance of a racist or other bigoted statement or the commission of a bigoted act substantially equivalent to speech . . . .[H]ate crime laws enhance the penalty of criminal conduct when it is motivated by racial hatred or bigotry.” Commonwealth v. Anderson, 651 N.E.2d 1237, 1239 n.5 (Mass. App. Ct. 1995). It is worth asking how these laws, and the Constitution, might apply in the Jena situation. Under Louisiana law, if a person commits any of a number of offenses, it is a separate crime to select the victim because of the victim’s race, among other characteristics. The list of offenses for which motivation by the victim’s race carries an additional penalty includes murder, rape, arson and many other offenses. The display of a racially offensive symbol is not included in that list. Indeed, if it were, it is likely such a provision would run afoul of the First Amendment under the U.S. Supreme Court’s decision in R.A.V. v. St. Paul, 505 U.S. 377 (1992). Expressive conduct is protected In R.A.V., St. Paul, Minn., made it a crime to burn a cross when the cross burner’s motivation was to express racial hatred. The Supreme Court struck down the ordinance, holding that it was invalid under the First Amendment as a regulation of expression on the basis of the content of the speech or expressive conduct. Thus, for example, under the ordinance it would have been perfectly legal to burn an effigy of the mayor because the offender disagreed with the mayor’s position on abortion or taxes. Only speech expressing racist or other specific disfavored views was punishable. The court held that government cannot single out and punish certain speech, although it is abhorrent to most of the community. St. Paul could have prosecuted R.A.V. under a variety of other laws unrelated to the content of his speech � trespass, a ban on open fires in residential areas � but it chose not to do so. Following R.A.V., state courts have invalidated similar statutes, e.g., when applied to the painting of a swastika on a synagogue or a satanic pentagram on a Catholic church. However loathsome and widely condemned, these expressions were protected by the First Amendment. As the Supreme Court said almost 40 years ago, “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U.S. 576, 592 (1969). The federal hate crimes statute is somewhat broader. It prohibits, among other things, the use of force or the threat of force to intimidate a person, because of that person’s race, from attending a school or participating in a program supported by federal financial assistance. Under Virginia v. Black, 538 U.S. 343 (2003), addressing a Virginia law similar to a provision of the federal law, it would be the prosecution’s burden to prove that the display of a symbol such as a noose was intended to intimidate others because of their race from attending the school or participating in its federally funded activities. News reports have indicated that the school superintendent called the action of the white students in Jena a prank, which trivializes it. But it may have been difficult to prove that these students intended more than intimidating black students from sitting under “their” tree. A clear distinction needs to be drawn between hate speech laws and school or workplace discipline. Under Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969), a public school has the discretion to punish speech that it can show would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” An inflammatory symbol that would be protected speech if hung in a park may be punishable when displayed on school property if the school can show it is likely to aggravate racial tension and interfere with the school’s teaching mission. Congress has broad authority to eradicate discrimination in the workplace. Courts have held that, while an isolated incident of racial harassment is not actionable under Title VII of the Civil Rights Act of 1964, a pervasive pattern of racial jokes, ethnic slurs or displays of threatening symbols such as a noose constitutes illegal employment discrimination. Finally, it should be noted that no speech, however odious, is a justification for, or defense to, a charge of physical assault on the speaker. The Jena Six are entitled to fair trials with a vigorous defense and, of course, the presumption of innocence. But calls to free them because they were understandably enraged by expressions of race hatred are simply wrong. David Drachsler currently serves as vice chairman of the Virginia Council on Human Rights and is a member of the board of directors of the American Civil Liberties Union of Virginia.

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