Banning the Noose

Perhaps no other symbol — even a burning cross — depicts the horrors of racial violence perpetrated against African Americans and others more than the noxious hangman's noose. Nooses show support for the days of segregation and subjugation, epitomizing the essence of discrimination. The noose not only symbolizes racism, but also served as the actual murder implement for the lynching of people because of the color of their skin. As the NAACP said in its 2007 "State of Emergency" report: "The hangman's noose is a symbol of the racist, segregation-era violence enacted on blacks. … [It is] an unmistakable symbol of violence and terror that whites used to demonstrate their hatred for blacks." Last February, President Bush agreed: "For generations of African Americans, the noose was more than a tool of murder; it was a tool of intimidation that conveyed a sense of powerlessness to millions."

Sadly, hangman's nooses have appeared with alarming frequency at factories, universities, and other public and private places across the country, especially since the Jena Six controversy in Louisiana, where a young man was charged with inciting a riot after flaunting a noose before a crowd of anti-racist protesters. It surfaces frequently in employment discrimination litigation, with an apparently increasing number of workers alleging the display of nooses contribute to a racially hostile work environment in violation of Title VII of the Civil Rights Act of 1964.

Spurred by events since the Jena Six controversy in September 2007, some states have passed laws that ban certain noose displays. Last May, the Connecticut legislature amended a hate-crime law to read: "Any person who places a noose or a simulation thereof on any public property, or on any private property without the written consent of the owner, and with intent to intimidate or harass any other person on account of religion, national origin, alienage, color, race, sex, sexual orientation, blindness or physical disability, shall be in violation" of the law.

The same month, New York amended an aggravated-harassment law to bar the depiction or display of a noose. It provides that such action is a crime unless the person has the permission of the private or public property owner. In July, Louisiana passed a similar measure forbidding "any person, with the intent to intimidate any person or group of persons, to etch, paint or draw or otherwise place or display a hangman's noose on the property of another, a highway, or other public place."

The question about these laws is whether criminalizing noose displays violates the First Amendment, which protects free speech. There are several fundamental First Amendment principles at issue. First, the First Amendment protects much repugnant and offensive speech. Second, First Amendment jurisprudence abhors "viewpoint discrimination," meaning that the government generally cannot selectively punish a speaker for his or her viewpoint. Legislation banning all noose displays could run afoul of these fundamental free-speech principles.

But the First Amendment does not protect all forms of speech. U.S. Supreme Court Justice Oliver Wendell Holmes famously expressed this principle with his "fire in a theater" analogy in 1919: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Similarly, the First Amendment does not protect child pornography, obscenity, incitement to imminent lawless action, libel, perjury, and "true threats."

Many noose displays could qualify as true threats under the rationale of the U.S. Supreme Court's cross-burning decision in Virginia v. Black (2003), in which the high court ruled that a state could criminalize cross burning carried out "with the intent of intimidating any person or group of persons." The justices reasoned that cross burnings intended to intimidate constitute true threats unprotected by the First Amendment.

But the court recognized that not all cross burnings qualified as true threats. In her majority opinion in Virginia v. Black, Justice Sandra Day O'Connor defined true threats 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." She noted "that the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence." O'Connor also recognized, however, that "a burning cross does not inevitably convey a message of intimidation." For this reason, the court invalidated the part of the Virginia law that provided that any cross burning at all "shall be prima facie evidence of an intent to intimidate a person or group of persons." In other words, prosecutors must prove an intent to intimidate; the First Amendment will not allow intent to be presumed.

The same principles hold true for the display of nooses. Some displays of nooses mean to intimidate others and place them in fear for their lives. The history of noose displays shows that they are "intended to create a pervasive fear" in victims. Thus, such displays can be criminalized under Virginia v. Black as long as legislators are careful to include "intent to intimidate" language in their laws (as the Connecticut and Louisiana laws do).

There is one final catch. Legislators also must be sure not to selectively target noose displays based on only certain characteristics — such as race or sex — and not others. In R.A.V. v. City of St. Paul (1992), the Supreme Court struck down a St. Paul, Minn., ordinance that selectively outlawed cross burnings or other displays done to alarm others on the basis of "race, color, creed, religion or gender." Although there may be few instances when someone burns a cross or hangs a noose other than to alarm someone on the basis of such factors, the court ruled that such selective targeting raised the specter of viewpoint discrimination.

David L. Hudson Jr. teaches First Amendment law classes at Vanderbilt Law School and Nashville School of Law.