Hanging Offense

 By Wendy Kaminer     

        It’s not exactly an epidemic, but about a dozen racial incidents involving the universal symbol for lynching – a hanging noose - have been reported in the past couple of months.  They followed a spate of publicity about the Jena 6 case, which began when white students threw a noose over a tree branch at a Louisiana high school.  Just last last week, someone hung a noose on the door of a black professor’s office at Columbia University Teacher’s College; a few days later, a noose was found hanging on a lamp post outside a post office near ground zero; last month, a noose was strung over a tree limb outside a black cultural studies center at the University of Maryland.

        I hope the great majority of us agree that these are hateful acts, while those who might not agree at least understand that hanging a noose on a professor’s door or a tree limb is not socially acceptable. We will never eradicate racism or its symbols, but we can deprive them of respectability. 

        Can we, should we, transform them into crimes?  Prevailing opinion apparently favors criminalizing racial bias: most of the states, as well as the federal government, have enacted hate crime statutes.  Typically, these laws proscribe intimidation or harassment, as well as violence.  (Now that the basic legislative concept of hate crimes has been widely accepted, and applauded, controversies over the laws generally involve efforts to extend their protections to gay or transgendered people.)

        So it’s not surprising that recent noose-hanging incidents have been cavalierly described and even formally investigated as hate crimes.  At the University of Maryland, the FBI reportedly joined campus police in investigating whether the noose-hanging there was a hate crime related to the Jena 6 case. (The investigation has not resulted in any arrests.) New York police are actively investigating the incident at Columbia, examining security tapes and DNA evidence.  The NYPD is also investigating the noose-hanging outside the downtown post office

        Precisely what crime do police imagine is committed when someone hangs a noose on a lamp post? Beats me, unless some local law prohibits anyone from hanging anything on a public lamp post: simply hanging a noose in a public place is, by itself, not a criminal act, as matter of law.  Hateful or not, (and like it or not) hanging a noose is expressive conduct, like cross-burning.  The Supreme Court has held that cross-burning, (surely just as hateful as noose-hanging) is protected by the First Amendment, unless it constitutes an intentional threat of bodily harm targeting a particular person or group of persons. This crucial element of the crime – intent to intimidate – may not be inferred from the mere fact of the cross-burning; as the Court stressed, the state may not “arrest, prosecute, and convict a person solely on the fact of the cross-burning itself.”
        This means that, just as no apparent hate crime was committed in the post office case, none was committed on the University of Maryland campus, where the noose was hung from a tree limb and did not appear to target or threaten anyone in particular.  The Columbia case is different, because the noose was hung on the door of a particular faculty member: if the person responsible is apprehended, the facts might or might not show that the noose was intended to threaten or intimidate the targeted professor.
        I don’t doubt that many people who reflexively characterize a noose-hanging or cross-burning as a hate crime would be outraged by the notion that it is not a crime unless the state can prove, as a matter of fact in every case, that it was a targeted, intentional threat.  Given our history of racial violence, the belief that its most potent symbols should be criminalized, regardless of the circumstances of their use, is understandable. 

        But put aside the unavoidable fact that a free society is partly defined by the freedom to express emotions, including hatred; simply consider whether it’s necessary to outlaw symbols of hate, per se.  Noose-hangings at Columbia University and the University of Maryland were instantly, resoundingly condemned by the university communities, public officials, and the press. In fact, on the Maryland campus, “the dirty deed backfired,” the Washington Post reported. “Instead of dividing students and faculty members, the racial incident has opened a dialogue and brought people closer together,” one student observed. 

        Criminal law is partly intended to define anti-social conduct and express communal disapprobation of it.  But it is not the only and not necessarily the best vehicle for doing so – especially when the conduct is expressive; then criminal law is perhaps the worst alternative.  Public disgust and outrage over noose-hanging has been made clear in the spontaneous reactions to recent incidents.  What more would be accomplished by outlawing nooses and other symbols of hate –- swastikas and burning crosses -- whenever and however they’re used?  Hatred would not be eliminated; I doubt it would even be deterred.  And while some of us would feel morally vindicated, all of us would be less free.

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