Today in Supreme Court History: August 22, 1998

8/22/1998: On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. The Supreme Court considered the constitutionality of his prosecution for cross burning in Virginia v. Black (20030.

The Rehnquist Court

Comments

[Dan Schiavetta]

California v. American Stores Co., 492 U.S. 1301 (decided August 22, 1989): O’Connor continues injunction preventing merger of supermarket chains which might violate Clayton Antitrust Act; notes circuit split as to whether “injunction” under statute includes divestiture as a remedy (the Court found that it did, 495 U.S. 271, 1990)

Matter of Lovett, 143 S.Ct. 69 (decided August 22, 2022): Jonathan Lovett of Somers, N.Y. (not far from where I am) suspended (and later disbarred); he did not oppose the notice of disbarment, nor did he oppose the disbarment proceedings in state court or even cooperate with the investigation (194 A.D.3d 39); however he is still listed on Yelp in case you’re thinking of hiring him (he had a well-documented career as a civil rights attorney)

[apedad]

Re: Virginia vs. Black

Facts of the case

Barry Black, Richard Elliott, and Jonathan O’Mara were convicted separately of violating a Virginia statute that makes it a felony “for any person…, with the intent of intimidating any person or group…, to burn…a cross on the property of another, a highway or other public place,” and specifies that “any such burning…shall be prima facie evidence of an intent to intimidate a person or group.” At trial, Black objected on First Amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required “intent to intimidate” could be inferred. He was found guilty. O’Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. In Elliott’s trial, the judge did not give an instruction on the statute’s prima facie evidence provision. Ultimately, the Virginia Supreme Court held, among other things, that the cross-burning statute is unconstitutional on its face and that the prima facie evidence provision renders the statute overbroad because the probability of prosecution under the statute chills the expression of protected speech.

Question

Does the Commonwealth of Virginia’s cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment?

Conclusion (7 – 2)

Yes, but in a plurality opinion delivered by Justice Sandra Day O’Connor, the Court held that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined. Justice Antonin Scalia left the latter portion of the Court’s conclusion to argue that the Court should vacate and remand the judgment of the Virginia Supreme Court with respect to Elliott and O’Mara, so that that court could have an opportunity to construe the cross-burning statute’s prima-facie-evidence provision. Justice David H. Souter, joined by Justices Anthony M. Kennedy and Ruth Bader Ginsburg, concluded that the Virginia statute is unconstitutional and therefore concurred in the Court’s judgment insofar as it affirmed the invalidation of Black’s conviction. Justice Clarence Thomas dissented (but only on a side provision about a jury instruction where he, “. . . faulted O’Connor for invalidating the jury inference on the basis of a single errant jury charge. Justice Thomas, writing for himself, made the further argument that because cross burning by its very nature is intimidatory, the jury provision raised no constitutional problems.” (oyez)

This was one of those disjointed cases where there were different issues and therefore different decisions/opinions.

Majority: O’Connor (Parts I, II, III), joined by Rehnquist, Stevens, Scalia, Breyer
Plurality: O’Connor (Parts IV, V), joined by Rehnquist, Stevens, Breyer
Concurrence: Stevens
Concur/dissent: Scalia (concurring in part, concurring in the judgment in part, and dissenting in part), joined by Thomas (Parts I, II)
Concur/dissent: Souter (concurring in the judgment in part and dissenting in part), joined by Kennedy, Ginsburg
Dissent: Thomas

[Commenter_XY]

I want to listen to the oral argument on this case. What an interesting division in the opinion.

[BravoCharlieDelta]

Also today in US history, Democrat Domestic Terrorists slaughtered the innocent Weaver family, including their children and dog.

And got away with it.

[Frank Drackman]

an actual "Black Klansman"
and they call it a "Cross Lighting" not
a "Cross Burning" goes back to the Crusades.

Frank "1/2 Jewish (the good half) can I just light 1/2 of a Cross?"

[BravoCharlieDelta]

Are you trolling me on purpose?

[Dan Schiavetta]

today’s movie review: Forrest Gump, 1994

That year it was corny to like this movie but hip to like Pulp Fiction. That movie didn’t do much for me. In the first place I hate the n-word especially when it’s thrown around so casually (no matter what color your skin is). Secondly I couldn’t get interested in the characters or anything that happened to them. Then there was that conversation with the gone-to-seed Travolta about going to McDonald’s in France. My brother played it back to me (on early internet technology) and swore it was the funniest thing he’d heard. I didn’t get it. The only scene I could really pay attention to is where a man gets shot in the back of Tarantino’s car and he has to clean up the mess before his wife gets home and blows her stack. That was gripping.

Yes, Forrest Gump had corny moments, particularly when the period music was too much “on cue” and obtrusive. But much that was derided seemed actually true to life. Yes, I have seen guys use stressing out over social activism as an excuse for neglecting their girlfriends. The 1971 New Year’s Eve scene had the same kind of wasted Viet vets I met in college (I was a couple of years too young to get dragged into that, fortunately). It’s true to life that an alloy used for ammo in Vietnam would be used for the Gary Senise character’s prosthetic legs. The scene where Forrest is jogging under the stars and says he couldn’t tell where earth ended and heaven began — how can anyone who has been around the block a few times not be moved by that?

Forrest is represented by a feather that floats with the wind. He’s actually anything but, playing a major (if unintended) part in some big events of his lifetime. But I think a lot of us are feathers, blown by the wind of the moment. I remember things I said and thought decades ago and I think: how could I have said that?? At the time it seemed correct, sometimes even brave. The truth is, most of us don’t really consider issues, political or personal. We just pick sides based on who we’d rather hang out with.

Anyway the feather is main thing I remember from that movie. I think of the two drifters that were mistakenly thought to be accomplices to Timothy McVeigh and Terry Nichols after the Oklahoma City bombing. (They just happened to coincidentally be in the same motels.) Or the homeless men who got directed to my crisis center in the 1980’s. Going from somewhere to somewhere, without a clear plan or if so without any real chance of success. “Ragged men in ragged clothes.” I’m not exactly being a literary Van Gogh here but at the time I was mindful of Hunter S. Thomason’s pre-Gonzo article, “Living in the Time of Alger, Greeley, Debs”.

I keep wondering about people I see on the street, formulating my theories about their life stories. On the rare occasions I find out the truth I see that my guesses were all wrong. But I can’t help it. I see a couple walking and I think: “Is she more into him? Or is he more into her?” What if I saw Forrest sitting on a bench waiting for the bus? What guess would I make about him?

[Magister]

I completely agree on Pulp Fiction.

I enjoyed Forrest Gump, but too much of it is escapism from the actual issues of the time period depicted; it might be enjoyment similar to what a Mr. Magoo cartoon offers.

[Mr. Bumble]

How is it escapism?

[Magister]

You can read the words that follow, or you can sit there eating your chocolates; your choice.

[Dan Schiavetta]

Magister,

A little puzzled by your comment. Actual issues, that people really talked about and affected their lives (and deaths), were depicted (though necessarily in a foreshortened form). I'm sure some were left out (I can think of a few) but what actual issues do you think were not brought out?

[Magister]

Honestly, it's close to thirty years since I saw the movie, so I may have some details wrong. It's not that the issues don't appear, it's that they do so in superficial ways.

Life is like a box of chocolates; you never know what you're going to get, but for Forrest Gump it's sure to be good. Issues are visited, but Gump's goodness mostly fixes them, or he is so unable to understand them that there's little to no engagement with the actual issues even as he steers past them effortlessly.

Bubba dies, and their lieutenant loses his legs; very sad, but Gump eventually creates a successful shrimp company with the lieutenant, saving him from his alcoholism and bitterness over the treatment of Vietnam veterans, and he gives money to Bubba's family.

Racism? Well, he's named for Nathan Bedford Forrest, but that's just a reminder that sometimes we do things that make no sense, a pretty meager condemnation of that virulent racist. He is present for school desegregation, but not for any lynchings or civil rights violence.

Vietnam? He speaks to an anti-war rally, apparently to lament bad things that happened to Bubba and the lieutenant, but he could say the same things and more if he'd survived at D-Day in that good war (where he would have saved not just Private Ryan but also his brothers). Not present at Kent State, of course; he intersects only with safer moments in the history of that era.

Bullying? He unexpectedly outruns the bullies. Probable exploitation of a college football player with a 75 IQ? Obviously he didn't need to be prepared for life after college. (Too early for steroids to have come up, but if they had, I expect he would have avoided them and still done better than other players on the strength of his mother's sage advice.)

Jenny? She has a tough life, made worse because she doesn't listen to or stick with Gump; but he sorta saves her at the end, although not entirely because she still dies.

Watergate? He's there but unaware of what he did. And that's the way throughout; he inadvertently has a hand in so many things, mostly just for comedic effect, but some important moments peripherally enough not to spoil the "what a wonderful world" vibe.

A better analogy than Mr. Magoo might be the Beverly Hillbillies; constantly confounding city folk despite their lack of education or sophistication. Enjoyable, but not offering any profound lessons. Or maybe Chance the Gardener, who at least was paired with some satire.

[Dan Schiavetta]

Forrest was born unlucky (hobbled, of low intelligence) but as you point out his life journey is incredibly lucky. He waltzes through crisis after crisis and only those around him come to bad ends. Maybe his lack of intelligence puts him under the radar; no one sees him as a threat. Also he doesn't have any opinions. As the Village Voice put it, in that movie any character who really cares about an issue is portrayed as a jerk or at least making a stupid life choice.

In the scene at the antiwar rally, we don't know what Forrest was going to say before his microphone was cut off, but being reunited with Jenny in the Reflecting Pool was another scene derided as corny but I found moving. Maybe I'm just getting weepy in my old age. The scene is also careful to show that antiwar protesters were not anti-veteran, which was my experience also.

A friend of mine was in that scene, playing one of the crowd (one of the film's touted special effects was replicating a few hundred extras so that it looked like the whole Mall was filled).

As for the Beverly Hillbillies, the underlying joke was that the uneducated Jed is actually smarter than the people trying to exploit him. Not the situation here.

[Magister]

It seems you do understand why I disliked the escapism from the issues of the 50s to 70s, although I enjoyed it for what it was.

He's not smart, but he never makes a wrong step because of it, except in humorous ways that don't get him in actual trouble; he succeeds less because he's not seen as a threat and more because of luck. His leg braces fall away and then he's an outstanding runner and later a champion ping-pong player, so I wouldn't say he's dealt a bad hand physically.

That nobody hears what he has to say at the antiwar rally is perhaps another stroke of luck by which he avoids committing to any significant condemnation of the Vietnam war. IMDB tells me that, according to Tom Hanks, he said "Sometimes when people go to Vietnam, they go home to their mommas without any legs. Sometimes they don't go home at all. That's a bad thing. That's all I have to say about that."

Regarding the Beverly Hillbillies, Jed has great common sense, but the ongoing joke requires him to learn almost nothing about Beverly Hills, while the banker and his assistant adjust to their peculiarities, which seems to argue against his being smarter (maybe, being rich, he doesn't have to adapt, but you'd think he'd be less surprised by city folk over time). But the triumphs of the hillbillies are achieved through common sense and superior competence rather than luck, so probably a poor analog for Forrest Gump. (Also decades since I saw the Beverly Hillbillies.)

[Bob from Ohio]

No personal sex story?

The time you dated a girl with no legs or something?

[Dan Schiavetta]

Bob,

Haven't you ever been curious about people you see passing by and find yourself inventing life stories for them?

[Magister]

Looking at "(20030" in Blackman's post, I was mildly curious how much the text of these posts changes from year to year. The text is the same, but I was very surprised that it ended with "(2003)" in 2020 but has the typo ever since.

https://reason.com/volokh/2020/08/22/today-in-supreme-court-history-august-22-1998/

[Rev. Arthur L. Kirkland]

Profs. Blackman and Barnett are just mailing this low-grade content in. I would have expected more with respect to Georgetown. Perhaps that institution has learned something about the importance and consequences of hiring decisions.

[Mr. Bumble]

Weaver's son and dog were shot by members of the US Marshall's Service and an FBI sniper shot his wife.

[Mr. Bumble]

You are and continue to be a pathetic sack o' shit.

[Frank Drackman]

My mom's a Horror-cost survivor you cock sucker. Worked in the burn unit at BAMC during Tet, treated Tubercular Spear Chuckers in Haiti. I hope all your HIV meds are Pakistani sugar pills.

Frank

[Mr. Bumble]

As noted above; a pathetic sack o' shit.

[BravoCharlieDelta]

Explain the implications of party affiliation.

[Mr. Bumble]

Of course you do since you give them regularly to one and all.

[Mr. Bumble]

Fingers are too sticky from masturbating to his latest movie to write yet.

[Dan Schiavetta]

Queen
I’m late with it today. See below.

[Rev. Arthur L. Kirkland]

The conservative Volokh Conspirators and their devoted right-wing fans — BCD, Bellmore, Drackman, Bumble, Ed, and at least a dozen like them — are a good fit. Disaffected, antisocial, bigoted (or bigot-hugging), obsolete culture war casualties.

[BravoCharlieDelta]

Do you think when the Executive Branch switches party affiliations all the downline bureaucrats and civil servants who aren’t party affiliated get purged?

Or that these political appointees control and manage so much of these agencies that they make all decisions day to day?

That has to be what you think if you believe that the political appointments at the top of these agencies assert micro and day to day control.

I mean for real. How fucking stupid are you?

[Rev. Arthur L. Kirkland]

Drackman didn't use "c_p succ_r," and he's a clinger, so he should be safe from Volokh Conspiracy censorship.

[Magister]

Thanks for the film reviews! Before getting dragged into a long phone call, I was pondering a movie to suggest for discussion but could not decide among several, and wouldn't have had as much to say about any of them myself as you usually do.

[bernard11]

Oh fuck off.

In 1992 we had had twelve years of Republican in the White House. Before that we had forur years of Carter preceded by eight years of Nixon-Ford.