Noose Bill Already Controversial

Brent Finnegan -- December 27th, 2008

Sen. Mark Obenshain’s “noose bill” hasn’t even been introduced in the state Senate yet, but it’s already being supported and criticized by Virginians from across the political spectrum.

The noose legislation, sparked in part by acts of racial intimidation at Massanutten Resort this fall, would make displaying a noose for the purpose of racial intimidation “a felony and carry up to five years in a state penitentiary, or 12 months in jail and a $2,500 fine, or just the fine,” according to Jeff Mellott’s recent report in the DNR.

Doug Mason, the subject of racial noose intimidation, and local prosecutors want a law that would make noose-displaying illegal, like cross-burning. From eightyone’s October cover story:

The criminal case was not simple because prosecutors were not sure what to charge the [noose-hanging] defendant with. “In Virginia, there is no specific hate-crime statute,” says [Assistant Commonwealth’s Attorneys Louis] Nagy. “The closest thing in Virginia that there is to a direct hate-crime statute is the cross- burning statute, but that focuses on very specific behavior, against specifically the cross burning itself.” The cross burning is a criminal offense, he explains, only when it can be proved that burning was performed with the intent to intimidate or terrorize a specific person.

Nagy says [Commonwealth’s Attorney Marsha] Garst and her office are working to encourage the state legislature to enact a new code provision or “to amend the cross-burning statute to include language that would make it illegal to do the type of conduct specifically that we saw in [Mason’s] case.” Without such a provision, had the noose hanging occurred only once, the case may not have been indictable.

Emphasis mine. But some Republicans and Democrats may be at odds with rank-and-file members of their own party over a bill like this. Dem blogger Waldo Jaquith recently called anti-noose-displaying legislation ridiculous:

There’s no need to have laws that specify every thing that is or is not intimidating […] These fluffy, feel-good laws are a waste of the legislature’s time, the sort of thing that one would expect from far-left Democrats (i.e., “truck nuts,” “droopy drawers”), not a far-right Republican like Obenshain.

In the comments of that same post, conservative attorney James Young essentially agreed with Jaquith, adding, “I suspect that this kind of legislation is a by-product of the kind of judicial activism rightly decried by Conservatives.”

General Assembly session convenes January 14.

36 Responses to “Noose Bill Already Controversial”

  1. Lowell says:

    It would perhaps help explain the reactions of different folks Brent, if you could let them know what exactly Senator Obenshain’s proposed legislation would in fact do… And not do…
    Is this a sincere and well considered attempt to address a serious issue? Or is this simply a “feel good” political ploy to garner standing in the election district?
    I suppose a good question to ask would be: “What will this proposal change?”

  2. I just added a little more context. Hope that helps explain the “why.”

    Perhaps this is an oversimplification, but one way to look at it is that “ACLU liberals” are essentially at odds with SPLC anti-racists, while conservative Republican lawmakers and prosecutors are at odds with libertarian conservatives who would rather allow judge and jury to decide the context and intent of the noose-hanging.

    As to your question “what will this change,” I don’t know. That remains to be seen.

  3. Emmy says:

    Well I have to disagree with this being akin to “truck nuts” and “droopy drawers” legislation. In my opinion hanging a noose or burning a cross with the express intent to intimidate someone should be illegal. Expanding this to include the noose just makes sense. I guess if one tried really hard they could argue that “truck nuts” were meant to intimidate them, but I just don’t even consider these things in the same group.

    While one is annoying and tacky, the other is designed to intimidate or threaten. Kudos to Obenshain.

  4. republitarian says:

    “What will this change”?

    It will change the look of Mark’s campaign brochure should he manage to get it passed.

  5. eso says:

    “What will this change”?

    It will limit free speech.

  6. Jimmy L. says:

    Can I ask a stupid question?…What is a “Truck Nut”?
    Here we go again. “Cross burning”. Time to do your homework. Virginia’s Cross burning law was last revisited in the 1990’s due to a KKK rally around Fredericksburg I believe. An 80 yr. old lady had let a Klan use her farm for their rally. The rally, like most, was well away from the public. A Black couple driving on a road by the farm did however see a flaming Cross as the Klan conducted their religious “Cross Lighting” ceremony. Now I know many take exception to their claim to being Christians, but most Klans do conduct this ceremony well out of sight of anyone other than the participants. Anyhow the Black couple called the police and thus the beginning of a court case on Cross “burning”. I believe the last arrests for burning a cross to intimidate in Virginia was around the same time. It was in a trailer park in VA Beach. Several young teens attempted to burn what amounted to a couple of small tree limbs in someone’s yard. Again, one would be very hard pressed to find where anyone, particuliarly a Klansman, has burned a Cross to intimidate someone.
    The Noose, long a symbol of justice, recently came into media attention when one was hung in a tree at a high school. While Jesse Jackson and others quickly sucked up publicity on this, I think if you look closely at this case and what happened you might well find we should have a hate law against any Black over 14 wearing baggy pants. Nooses may be intimidating…baggy pants are deadly.
    After Obama takes over maybe it would be best to do like Europe has done. Outlaw everything. Have strict hate speech laws. If you speech against Jews in Europe you are in trouble. Make it so you can’t speak against Blacks or Mexicans or Gays here. Outlaw Swastikas like Germany has. Outlaw Klan Robes here. Hell, outlaw Crosses. I am for outlawing anything but Democrats. I also like the idea that political science proff at UVA has of rewriting the Consitution. That and the Bible are easily in the category of Hate literature.

  7. Emmy says:

    I guess that depends on how you define “speech”, because I don’t personally consider intimidating someone with a noose or burning cross “speech”.

  8. eso says:

    You think it conveys a message of intimidation, so I don’t see how it could be anything else but speech.

    I really question that the guy at Massanutten felt threatened and thought someone was going to hang him. I can see it as a bad joke gone too far or someone saying, “I don’t like you.” As I heard the case, there was no attempted battery and no damages except possibly hurt feelings. What possible sentence would you give for that?
    I don’t condone hanging nooses at all, but feel it’s far worse to start restricting speech to protect peoples feelings.

  9. Emmy says:

    Well I guess we’ll just have to disagree. It’s not about protecting someone’s feelings. You have no idea whether the man at Massanutten actually believed someone would physically harm him after that.

    A friend of mine just had comments on her blog that said she should deal with her daughter the way Kaylee Anthony’s mother dealt with her. Is that person protected under free speech or is that a threat? There was no direct threat to her daughter, but upon finding out who this person was, he had made threats before.

    I guess it depends on how the victim interprets it and this law says that intent to intimidate must be proven. So whether it’s a threat or free speech will be up to a judge I guess.

  10. The Valley Progressive says:

    The erosion of our rights and liberties ususally occurs in baby steps. A little here…a little there. Then 20-30 years later we look back and see how much we’ve lost.

    This erosion comes from both sides, whether its the Bush Administration’s Patriot Act and trampling of the US Constitution under the guise of “National Security,” or the left’s overzealous political correctness, it’s still wrong.

  11. Renee says:

    Why not lump them under terrorism laws – isn’t terrorism the “use of or threat of violence to intimidate”? Isn’t a hanging noose repeatedly at a black man’s place of work a threat of violence?

    I’ve never fully settled on a decision about how I feel about “hate crime” laws when it comes to violence not yet being committed, but I do feel that it’s wrong and should be illegal to burn a cross on someone’s lawn, or hang a noose at someone’s workplace – it’s racist and intimidating and hateful, and it seems a person should be punished in some way for doing it.

  12. David Miller says:

    I would personally like to leave this one up to the “liberal judges”. If this were a democrat trying to enact this law we might have a different story in the DNR. Take this as you will with the facts being that I haven’t formed an opinion on this matter besides what I know would happen if the roles were reversed politically.

  13. In my opinion hanging a noose or burning a cross with the express intent to intimidate someone should be illegal.

    I agree, Emmy—but why limit it to those things? Should any form of intimidation be illegal? It’s just goofy to try to list all of the things that could be intimidating. Why should a noose be any more threatening by statute than a sign that says “I am going to lynch you?” They both mean the same thing. Do we need a law that bans the latter? Do we need laws for every single thing that somebody might do that’s intimidating? The problem with this approach is highlighted in the eightone article:

    The criminal case was not simple because prosecutors were not sure what to charge the defendant with. “In Virginia, there is no specific hate-crime statute,” says Nagy. “The closest thing in Virginia that there is to a direct hate-crime statute is the cross-burning statute, but that focuses on very specific behavior, against specifically the cross burning itself.” The cross burning is a criminal offense, he explains, only when it can be proved that burning was performed with the intent to intimidate or terrorize a specific person.

    The problem is a cross-burning ban was pushed through, rather than a proper hate-crime statute. So I could burn a plus sign, I could burn somebody in effigy, I could simulate severing a scarecrow’s head in the style of terrorists, I could even hang a noose in front of somebody’s house, and all of those things are OK. Because we’ve got a crappy law. Now, either we can keep playing whack-a-mole by banning specific acts, or we can just pass a reasonable law that makes no reference to specific acts.

    What I suspect that we can all agree on is that these sorts of things are threats, and should be punished accordingly. The only disagreement is on the legal methodology. Some folks are thinking really narrowly, considering only what’s before them right now. Others of us are thinking broadly, wanting to craft legislation that will prevent the problem we’re seeing right now as a result of the cross-burning statute.

  14. Renee says:

    And I think there’s a difference between saying “I hate that n***r” and “I’m going to shoot that n***r in the head”. The latter is a threat of violence, and is much more serious than the former. I think hanging a noose is equivalent to someone looking you in the eye and threatening to kill you.

  15. The Valley Progressive says:

    Where will it end? Every special interest group has some monicker or gesturethat they find offensive. Should we outlaw them all? If I cut somebody off in traffic and they give me the finger, or put up their thumb and first finger in the shape of a gun, isn’t that intimidation? Can I get a law passed for me?

    Sometimes being a “nation of laws” makes us look stupid instead of democratic. Its much easier to change the law than to change public attitudes….so we change the law. Unfortunately in many cases this creates more problems than it solves.

    In the Noose Law case I’m not sure that the majority of the voters think that it is truly an issue worthy of such heated divisivness.

    When ever I see things like this the first question I ask myself is, “who stands to benefit.” As a whole, I don’t think that society gains anything. So I look at the politician, I think this is a political stunt.

  16. Renee says:

    Waldo, you said: “It’s just goofy to try to list all of the things that could be intimidating. Why should a noose be any more threatening by statute than a sign that says “I am going to lynch you?” They both mean the same thing. Do we need a law that bans the latter?”

    Am I wrong in thinking that death threats are illegal?

  17. Renee says:

    Or is the sign not considered a death threat under current laws?

  18. Renee says:

    VP, whether or not it’s a political stunt, I have to say I think targeting a specific black person by hanging a noose at his workplace repeatedly is threatening and should be illegal. I’m not sure what the punishment should be.

    I agree with Waldo that it may be better to make some cover-all law than to make lots of laws for lots of little things. On the other hand, that could be abused, so it may be good to be specific….

  19. The Valley Progressive says:

    Renee,
    Again, where will it end? Repeated offenses in the workplace places the onus on the employer, and we already have laws in place for that. Outlawing every single “slight” to our sensitivities is shallow, ineffective and a dangerous slope.

    And before someone comes back with the “well you wouldn’t think it was just a “slight” if you were black,” I’ll pre-emptively strike that with thats the thing about slights and perceived acts of intimidation. Some special interest group will always be offended. That doesn’t mean that we should pass a law. People need to see the big picture and the overall effect.

  20. Emmy says:

    I’m having a real hard time figuring out how someone would consider a noose just a “slight” and something that we should just let fall by the wayside as something that “might offend” a special interest group.

  21. The Valley Progressive says:

    Again,
    It comes down to interpretation. A noose hanging in my cubicle (I am white) would be offensive to me. Its not so much the noose as it is the context. How can you outlaw every symbol that some group finds offensive? Outlaw the intent, not the prop, (and we already have laws that do just that).

    Again, if I am supremely offended by you giving me the finger in traffic, should I have the right to get that act outlawed in the name of a hate crime?No. In fact, we also have laws against lewd acts in public. Thats my point, we have laws already to protect against various injustices there is no need to start defining and outlawing specific acts. Its socially dangerous.

    David Miller made a good comment earlier when he suggested leaving it to the judges. It is their job to determine if the act crossed the line and broke one of the many laws that we already have in place to counter racism and hate crimes.

  22. Emmy says:

    But you made my point. I’m white and a noose in the tree in front of my house would be offensive. If I were black, I’d venture to say I’d consider it a threat.

    Giving someone the finger in traffic doesn’t have the historical connotations that a noose does. I’m for leaving it to the judges too. Add it in, and the judge can decide if it was done with malicious intent or not.

  23. The Valley Progressive says:

    I think that this whole issue can be described thusly:

    1) Doug Mason (the victim) has now decided to make a stand because the act happened to HIM. A natural human response is to get super-emotional when one suffers a personal affront, we distance ourselves however, and often make the act less relevant, when it happens to others. As a result, Mr. Mason, not happy with current laws, wants to make a stand and impart his own impact on racial harmony. (I’m not faulting him here, I do think that it is a natural response).

    2) Obenshain is at best, an ineffectual senator, who really hasn’t done anything for the Valley or the Commonwealth during his stint. I think he jumped on this for self-serving purposes. He has no history of supporting equality or civil rights up until 2007. He rated a 0 during from “Equality America,” a GLBT organization, for the first years in office.

    Then, all of a sudden, in 2007 he scored a 100!! How could that be 0 to 100 in just a year? A conservative republican from Shenandoah Valley? Gasp?

    I’ll tell you why. The same reason why he picked up on the Mason case. He saw the writing on the wall. He watched VA reject George Allen, elect Mark Warner US Senator, and go blue for the presidential election. So Obenshain did what any self-serving politician with aspiring motives would do, he’s padding his resume and voting record to appeal to normal people down the road. He’s planning for a run for Governor, or possible US Congress run, and he’s begun the pandering. This “Noose” law isn’t about civil rights, its about Obenshain.

  24. Emmy says:

    Well, I can’t speak to whether or not Obenshain’s intentions are pure. But, I don’t feel Mr. Mason is out of line at all for wanting something to be done about this. So, if this gets it done…

  25. The Valley Progressive says:

    Emmy,
    I think we agree…I think what I’m reading in your last post is that you also believe that it comes down to interpretation and intent. Do you think that laws should be passed for each act deemed offensive? Your last sentence makes me think not only because you (like me) are willing to leave it up to the judicial system. After all that what judges and juries do. They listen to both sides regarding some offense (whatever it may be), evaluate the evidence, and pass judgement on the victim or defendant as to the intent of said offense.

    This variation in intent is exactly what differentiates the degress of murder. If we can trust the judicial system to get 1st vs 3rd degree murder right, can’t we expect them to get the intent of intimidation/hate crimes right?

  26. Emmy says:

    Yes, it should be left up to the judge to decide the intent. But, if no current law protects someone who is victimized in this way, then I think one should exist. So, since Obenshain is pushing for this I would assume that current laws do not protect Mr. Mason and others properly.

  27. The Valley Progressive says:

    Emmy,
    As I said in my previous post, I don’t fault Mr. Mason one bit. But this case reminds me of a case I read about years ago in some northern state. Essentially, the mother of some woman in a state near Canada was driving doen a road in winter and hit a moose. Unfortunately the mother died. The daughter took it upon herself to conduct a crusade against moose. She endlessly lobbyied the legislature to dramatically increase moose killing permits. She started a website dedicated to her cause and began a PR campaign against moose using fear tactics and anything else she could think of, even going to the point of suggesting people poach moose.

    This is the over-reaction that I’m talking about. Although it’s sad that her mother died as a result of the accident, does it really justify her actions and the wholesale slaughter of moose? I think not. To me its a little over the top. And again, I understand her motivation but I don’t think that the world should change because of it.

    As an aside, I think that this is a symptom of a bigger social problem which is, as Americans, we’ve gotten into the habit of looking to the government to solve all our personal problems and grievences, instead of dealing with it ourselves or as a local community. But that’s for another thread…

  28. The Valley Progressive says:

    If VA doesn’t have specific laws against certain forms of racial discrimination and intimidation, the feds do. (I’ll have to defer to Dave and Republitarian to cite the exact statutes as they are much more versed in law than I). If you notice the way that the proposal is written it says, “displaying a noose for the purpose of racial intimidation.” I respect the need to pass laws against racial intimidation, its the fact that we are now getting so specific as to the act and prop that I have a problem with. Again, going back to the judges, let them decide if it was for “the purpose of racial intimidation.”

  29. Draegn88 says:

    I find myself opposed to this. For I feel that if passed it will become another blacks only allowed thing. Just as blacks can go around today calling each other n****rs without any complaints. Yet if a white says n****r, he’s a racist.

    If passed, down the road you’ll see blacks displaying nooses as their symbol, to use to threaten and intimidate as they wish. No one will say one word against it. Just as today with the word n****r. But let a white display a noose and it will be a hate crime, and if not charged with a hate crime there will be the endless marches and threats of riots.

    How far will we have to go before the liberals and appologists wake up? Will America have to become another Zimbabwe?

  30. Jimmy L. says:

    I am against using a noose to intimidate anyone, unless they are about to be hanged by the State. I am not really for that as I am against capital punishment. Didn’t Mr. Mason go to his supervisors and find recourse. Wasn’t the employee let go or not allowed to return after quitting? Isn’t the company facing legal action? Has anyone looked closely at the case of the high school beating that brought this whole noose thing to the fore? We seem to worry so much about intimidation on the part of Whites yet chastise anyone when they bring up the actual violence and killing done by Blacks.
    One things that seems to be forgotten or passed over here is that this is the United States of America. I have a right to say what I want to and a right to hate who I want to. If I want to walk around Court Square saying, “Repent and bellieve the Gospel”, I have that right. If I want to say, “I hate all White people”, I have that right also. A preacher can stand in the pulpit and say gays are going to hell. They can say you are going to hell if you sleep with someone and are not married to them. Nazi’s can get a permit to march just like the local girl scout troop can. Gays can also get a permit to march. I have a right to hang a noose in my front yard if I want to. I don’t have a right to hang one in anyone else’s yard however. Crosslighting laws are done to protect the right people not to be intimidated by having them burned near or on their property. Yet, the KKK is allowed to Light their Cross if done out of the public view. This is obviously not an act of intimidation. To perserve our freedom we have to allow more than we might be comfortable with. I recently sat in a judges chambers in KY. where the judge told the defendent in a lawsuit that he, (the judge) would see to it that the defendent did not get information he was legally entitled to to defend himself. The judge tried the case and the defendent ended up looseing, having every one of his motions denied. A lawyer observing from the gallery, while not agreeing with the defendents stand, came forth after the trial to take the case on appeal as he said justice was obviously denied and the defendent’s Constitutional right of free speech denied. We are headed down a slippery slope. I know I come across like an ultra-right conservative, but on issues like these I still hold to my many years of Socialist liberal humanism views. I ask that liberals think thru their position closely in light of history and keep integrity in the liberal tradition of ethical and political philosophical thought.

  31. eso says:

    I am surprised by the politics in this case. I would have thought it would have been the liberal politically correct crowd trying to pass this law. Instead, it is the Republican Commonwealth Attorney.

  32. Grant Penrod says:

    Just a few points of clarification on the cross burning case. The Klan rally happened near Cana, Virginia, a small town south of Blacksburg near the North Carolina border. The Klan had notified police of the rally, which was held with permission on private property. Local police (possibly the sheriff’s department, I can’t remember) stationed an officer on the highway in view of the rally and were reportedly wanting to take action about the cross burning. A black family did stop on the road to ask the officer what was happening, prompting the arrest of Barry Elton Black, the Klansman from Pennsylvania who organized the rally.

    A good discussion of the legal issues in that case and the Virginia Beach case (they were combined on appeal) can be found in the Virginia Supreme Court’s opinion at:

    http://www.courts.state.va.us/opinions/opnscvwp/1010123.pdf

    and the US Supreme Court’s opinion at:

    http://www.law.cornell.edu/supct/html/01-1107.ZS.html

    Those opinions should also provide some insight into this noose issue. Sorry if the links don’t work well, I’m not quite sure how to post them properly.

  33. Thanks, Grant.

    eso, as I mentioned before, “ACLU liberals” are essentially at odds with SPLC anti-racists, while conservative Republican lawmakers and prosecutors are at odds with rank-and-file libertarian conservatives who would rather allow judge and jury to decide the context and intent of an individual noose-hanging.

    Many issues, including this one, don’t break down neatly into Republican-Democrat or conservative-liberal categories. I tend to agree with Waldo when he wrote, “…we can keep playing whack-a-mole by banning specific acts, or we can just pass a reasonable law that makes no reference to specific acts.”

    I also agree with the ACLU when they said “you can prosecute hate crimes without attacking freedom of expression.”

    We need smarter legislation. Quality over quantity.

  34. David Miller says:

    Good points, and I might add that this proposed legislation does not fulfill the ‘smarter legislation” need. I’m both surprised and interested to see this problem being addressed by right wing lawmakers but would like to see the suggestions within this post and following comments addressed in any such legislation and on the federal level.

  35. eso says:

    “Can I ask a stupid question?…What is a “Truck Nut”?”

    http://www.truck-nuts.com
    Might by iffy for work.

  36. JGFitzgerald says:

    For a series of articles on jail suicides, a fellow editor and I fashioned a noose out of a piece of thick cable and photographed it silhouetted against a bright window. While he went to the darkroom to see how the pictures came out, I tossed the noose where we could find it later in case we had to re-shoot. The advertising manager came through the area in question, saw it draped over a pipe, and ran to the publisher’s office to announce that newsroom employees had hung a noose as a warning to the new managing editor.

    Oliver Wendell Holmes said in Schenk vs. U.S. that to abridge freedom of expression, you needed to show a clear and present danger from the expression, such as shouting “fire” in a crowded theatre. Or, I suppose, shouting “noose” in a crowded newsroom.

Reader Tweets

Latest Flickr photos in the hburgnews Flickr pool
Announcements & Press Releases
  • Friendly City Grand Opening Set for July 9

    Friendly City Food Co-Op, Harrisonburg’s consumer-owned grocery, invites the community to come see its new destination for natural, organic and locally-produced products at the store’s grand opening 11 a.m.-5 p.m. July 9 at 150 East Wolfe Street.

  • Friendly City Becomes Member of National Cooperative Grocers Association

    HARRISONBURG, VA — Friendly City Food Co-op, slated to open this month in Harrisonburg, Va., has become the newest member of the National Cooperative Grocers Association (NCGA), a business services cooperative serving 120 consumer-owned food co-ops nationwide.

  • Harrisonburg Recognized as a Bike Friendly Community

    May 2: Harrisonburg was honored when the League of American Bicyclists announced the latest round of Bicycle Friendly Community (BFC) designations over the weekend to kick off May as National Bike Month.