So I was reading another law review yesterday about Virginia v. Black (2003). Of the several dozen or so articles there were only one or two that moderately favored the decision. The rest simply attacked the decision as an attack on First Amendment protections. I don't know why. Maybe I just happened to pick up the negative ones, but there's very little praise for this decision.
Most had their own reasons for it centered around the general anxiety of waning First Amendment protections, or circumventions of Brandenburg, etc. I read this particular one and it started off with the usual critiques of Justice Sandra Day O'Connor's opinion, the "puzzling" opinion by Justice Antonin Scalia in RAV which was revisited in Black.
On a side note, for some reason, and this one article was not the first, authors who wrote extensively about Black and RAV, talked about how the two statutes from Minnesota and Virginia were "nearly identical" or bore a "striking resemblance."
From St. Paul, MN, this is the city ordinance which was challenged in RAV v. St. Paul (1992):
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
And here is the Virginia statute:
It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.
Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.
Other than a cross burning as a common thread, and an effort to criminalize hate motivated expressive conduct, I don't see the "striking resemblance" or the "nearly identical" that I've been reading. If anything, there are substantial differences that sets the two apart in its content and application. I just couldn't help but think that these First Amendment purists were in a rush to substantiate their objections to
Black and neglect the details. Anyways ...
So this one article was predictably arguing against
Black and through it all I was trying to figure out where this author was going with her argument. Then it struck me near the very end about the "slippery slope" that the decision produced:
It is clear that the Nazi swastika is already the next form of symbolic expression on the chopping block. What about the use of confederate flags? What about shirts bearing only a picture of the confederate flag? Has the Court allowed states to restrict expression that society has come to regard with distaste?
Aha!
To answer the questions, I resoundingly say "Yes!" So start lining them up because it's clear minorities cannot always depend upon the good natures of people to know any better. If anything, state power has always been invoked to protect minorities and combat discrimination, and this is perfectly consonant with the history of civil rights.
The really sad irony is that oftentimes it was the state that had created these problems in the first place. And now the very instrument that perpetrated policies of segregation, colonization, race-based exclusion, and genocide, is also the same one that dismantles discrimination, and asserts justice and equality.
And on a final note, I'm getting sick and tired of reading so many First Amendment purists bemoaning the destruction of free speech, and therefore, the end of the so-called "free marketplace of ideas" and the vitality of democratic life and blah blah blah blah. Seriously, after reading the 16th article on the same theme and conclusion, but different method of course, it's like beating a dead horse ... like thousands of them!
*sighs*
