Dealing with "symbols of fear and violence"

From the Jena Six case in Louisiana to the recent (Oct. 22) sending of a noose to a black principal in Brooklyn, as reported by the New York Times, there has been a growing number of incidents involving nooses. The latter AP story, found on the ABC News website, notes that "the frightening symbol of segregation-era lynchings has been turning up around the country."

Earlier this month, the Congressional Research Service (CRS) issued a report on state laws against what are basically hate crimes. According to the report, virtually every state has criminal statutes covering burning crosses, exhibitions of nooses, and similar displays, or those that cover coercion, terroristic threats, harassment, or the deprivation of civil rights that can be applied to misconduct like cross burning. CRS provides an extensive analysis of First Amendment protection of speech and expressive conduct relating to these statutes.

CRS also notes that most states have enhanced sentencing laws for hate crimes. In Hawaii, §706-662, Hawaii Revised Statutes, provides for extended terms of imprisonment. Subsection (6) therein specifically covers hate crime offenders. On October 1, 2007, in State v. Maugaotega (html) (pdf, 39pp.), the Hawaii Supreme Court declared §706-662 unconstitutional because it authorizes a court, rather than a jury, to make the finding that an extended term is necessary.

Burning Crosses, Hangman's Nooses, and the Like: State Statutes That Proscribe the Use of Symbols of Fear and Violence with the Intent to Threaten, CRS Report RL34200 (pdf, 20pp/144kB, from Open CRS), October 5, 2007