Free Speech Challenges in Jena

By Wendy Kaminer           

        If the case of the Jena 6 seems, at least at first, like a depressingly simple example of racism in the justice system, (and the culture,) it also raises some complicated questions about free speech.  The trouble at Louisiana's Jena High School began when white students hung three nooses from a tree that served as a de facto, whites only meeting spot, after 3 black students dared to sit under it.  Hanging the noose was obviously an expressive act and a potent reminder of lynchings.  How should the school have responded?  How should it have punished the students who hung the nooses? 

            The noose hanging incident was surely hateful but should not be considered a crime, unless, under the circumstances, it qualified as an actual, targeted threat of violence, especially one intended to interfere with the right of black students to attend public school.  (The U.S. Attorney in Western Louisiana wisely decided not to press charges against the teenagers who hung the noose.) 

            But, school officials can punish students severely for hateful, non-criminal speech on school grounds; the Supreme Court
recently (and wrongly) upheld their authority to punish a student simply for holding up a nonsensical banner proclaiming “Bong Hits for Jesus” at an outdoor event; there’s no question students can be harshly disciplined for hanging a noose over a tree limb.

            In this case, the school principal recommended their expulsion; the superintendent demurred and merely suspended them for three days.  (I confess that I have no idea how I would have handled this incident, how the offending students might best have been held to account, and how racial enmity might have been defused.)  The suspension angered the black community and helped inspire “race fights” in the town, which included an alleged attack on one white student, Justin Barker, by six black students.  Barker was hospitalized but fully recovered; his alleged attackers were charged with attempted murder and conspiracy to commit murder; some of the charges were reduced, but one student, Mychal Bell, a juvenile at the time of the fight, was tried and convicted as an adult of battery; he faced a 15 year sentence.  His conviction was recently overturned, (on the grounds that he could not legally be tried as an adult,) but he remains in prison pending an appeal.
            Then during a massive demonstration in Jena last week, protesting the disparate treatment of the “Jena 6” and racism in the justice system, in general, two young white men were arrested for repeatedly driving by demonstrators in a red pick-up truck with a noose hanging out the back.  The 18 year old driver was arrested for DUI, inciting to riot, and contributing to the delinquency of a minor (his 16 year old passenger.)  Fair enough: whether or not taunting – or attempting to threaten - demonstrators with a noose was a crime (which authorities are reportedly investigating,) the driver can be charged with related acts. 
            The hard case of apparent intimidation followed:  A white supremacist web site appeared, listing what were said to be addresses for five of the Jena 6 students, along with phone numbers, “in case anyone wants to deliver justice.” Is this website protected by the First Amendment? Not according to the 9th Circuit Court of Appeals, which, in 2002, upheld a civil verdict against the very similar “Nuremberg Files” website, which maintained a “hit list” of some 200 abortion providers, including their addresses, license plate numbers, and other personal information.  Three doctors on the list were killed, and a line was put through their names; the names of the wounded were listed in grey.
        The Nuremberg Files website was vulnerable because it could fairly be found to constitute an actual threat, targeting the abortion providers listed on its page.  I suspect that the website now at issue in the Jena 6 case might also qualify as an actual threat, targeting the black students and their families.   Forgive me while I quote myself, writing about the decision in the Nuremberg Files case, “the usual debates about the causal connection between disputed speech and harmful behavior are irrelevant here.  For freedom’s sake, we all have to tolerate being vilified, embarrassed, or harassed, but freedom will survive if we acknowledge a right not to be terrorized.”

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