Nov 23, 2016 Virginia criminal defendant’s conviction stands for hanging black person in effigy
Jack Eugene Turner is an admitted racist who told a Franklin County, Virginia, sheriff’s deputy that he hung a black person in effigy from a noose from his tree near the roadside to scare African-American people away. Turner v. Virginia, ___ Ct. App. ___ (Nov. 22, 2016).
The sheriff’s department removed the lynching display, the prosecutor obtained a Class 6 felony indictment against him under Va. Code § 18.2-423.2 (prohibiting displaying a noose in a public place with the intent to intimidate), Turner got convicted, and the judge sentenced him to six months active jail time, with an additional four and one-half years of suspended jail.
Turner’s court case raises such issues as Virginia’s virulently and violently racist past; the state of racism in Virginia and the rest of the nation today; how such a case might have been decided by judges who came of age during Jim Crow when mandatory retirement age means the oldest current full-time Virginia judges were born in 1946; First Amendment protection for reprehensible speech to give robust protection to everyone’s speech; how to define “public place” when the noose was displayed on Turner’s own residential property; the six-month active sentence length against Turner; and how the case may have turned out had Turner simply declined to tell law enforcement why he hung the black person in effigy and what doing so meant to him.
Many pages could be written about each of the items in the foregoing paragraph. Today, I will focus briefly on the First Amendment issue of Turner’s criminal conviction and the censorship of law enforcement’s dismantling his lynching display, the “public place” definition, and the adverse implications to Turner and all other criminal suspects who waive their Fifth Amendment right to remain silent with law enforcement.
First and foremost, as a robust advocate of free expression protection, that means that I am going to find myself advocating the free expression protection over messages that I detest. My commitment to robust free expression protection explains why I defended the anti-gay-spouting Westboro Baptist Church when sued over its vitriol about a soldier killed in Iraq and his parents, why I agree with the ACLU’s membership-losing risk in defending the First Amendment right of nazis to march in Skokie with its large Jewish population, and why I thank and congratulate Virginia lawyer David Baugh who did not let his being African-American stop him from being further faithful to the First Amendment in defending a criminal defendant KKK member prosecuted for cross burning.
I do not defend free expression rights in the abstract. Here, Jack Eugene Turner had previously taunted and complained about his African-American next-door-neighbors, and escalated the situation by quantum leaps by hanging a black person in effigy for all to see. This understandably scared his neighbors so badly that they forbade their children from passing by Turner’s house. All this happened at a time when we already had our first African-American president and long before the alt-right movement and other racists became emboldened by the electoral victory of the racist-encouraging Donald Trump.
THE FIRST AMENDMENT’S ROLE IN TURNER’S CASE
What I do know is that when we protect the free expression rights of such a person as Jack Eugene Turner, we better protect our own free expression rights, including in the face of an incoming president who would be more than happy to see the First Amendment weakened at least when it comes to weakening First Amendment limits on the libel suits that he has a penchant to threaten filing.
In 1992, the United States Supreme Court strengthened the First Amendment by rejecting as facially invalid content-based censorship presented by a local Minnesota law prohibiting cross-burning. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). However, R.A.V. left open the door to having statutes criminalizing hateful symbolic speech pass Constitutional muster if the speech is with intent to intimidate.
In 2002, the United States Supreme Court revisited R.A.V., this time okaying Virginia’s criminal anti-cross burning criminal code § 18.2-423 (involving cross burning on public property, or on another’s property without the owner’s permission) because the law requires an intent to intimidate before a conviction can be obtained. Virginia v. Black, 538 U.S. 343 (2002). The Supreme Court nevertheless reversed Black’s conviction for burning a cross on property with the owner’s permission, because the jury was instructed — in contravention of the First Amendment — that the very act of burning a cross was enough to allow a presumption that Black intended to intimidate. Black did not entertain whether burning a cross where the property owner consents could amount to burning a cross on “public property”.
In 2009, Virginia passed a statute that is nearly identical to the Commonwealth’s cross burning statute, this time prohibiting displaying a noose on public property with intent to intimidate. Va. Code § 18.2-423.2.
HOW COULD TURNER’S OWN RESIDENTIAL PROPERTY HAVE BEEN A “PUBLIC PLACE”?
Turner proceeded to a bench trial, thus eliminating the risk of faulty jury instructions — with the absence of a jury here — where faulty jury instructions enabled Black to win in the Supreme Court in 2002. The judge convicted Turner despite Turner’s objection that the statute’s prohibition against noose’s on “public property” did not apply to Turner’s action of displaying the noose on his own property. Curiously, Virginia’s Court of Appeals in Turner relies on a 1947 state Supreme Court case — when Jim Crow was in full throttle in Virginia and the rest of the South — to say that in Turner’s case his noose display was as much in a public place as was Montana Hackney’s allegedly disorderly conduct when Hackney spouted ugly words from his own porch. See Hackney v. Virginia, 186 Va. 888, 45 S.E.2d 241 (1947).
LAW ENFORCEMENT VIOLATED THE FIRST AMENDMENT BY REMOVING TURNER’S RACIST LYNCHING DISPLAY FROM TURNER’S PROPERTY
Turner’s case being a criminal one, he did not raise the Constitutionality, or not, of the police removing his noose display. That extrajudicial removal constituted a First Amendment-violating prior restraint on Turner’s ongoing speech, even though law enforcement likely will claim that it merely was keeping the noose as evidence. However, to have preserved Turner’s free expression rights, the police should have instead photographed rather than seized the display.
It does not appear that Turner filed a civil lawsuit against that action, nor that Turner ever erected a new noose display on his property. Of course, had Turner erected a new noose display, that could have added fuel to the prosecutorial fire against him.
TURNER WAGGED HIS TONGUE, AS DO SO MANY CRIMINAL SUSPECTS
One is left to wonder how Turner’s case would have turned out had he simply asserted his right to remain silent when law enforcement asked him about his noose display. Of course, because Turner wanted everyone to know that he wanted his noose display to intimidate African-Americans, perhaps he thought that his remaining silent on the matter would have been counterproductive to conveying that intimidation.
After serving his jail time, which I take it he has already served, and now with the hammer of his lengthy suspended prison sentence hanging over his head, Turner will return to his home, presumably still next door to the same neighbors who reported his noose display to law enforcement. He will continue with his racist views along with the millions of others holding virulently racist views — unless he at some point recognizes the wrongheadedness of his racist views — and those opposed to racism will continue with the need to move closer to Martin Luther King, Jr.’s dream.