Burning Crosses, Hangman's Nooses, and the Like

"Almost half of the states outlaw cross burning with the intent to threaten as such. A few of these statutes cover the display of hangman's nooses and other symbols of intimidation as well. Moreover, the same misconduct also frequently falls under more general state prohibitions on coercion, terroristic threats, harassment, or hate crimes. Some of these laws feature a hate crime element without which conviction is not possible; others do not. In either case, there are obvious first amendment implications. The Supreme Court has explained that not all speech, particular expressive conduct, is protected by the First Amendment. However, in R.A.V. v. St. Paul, it held cross burning with the intent to annoy was protected and did not come within the "fighting words" category of unprotected speech. Shortly thereafter, in Black v. Virginia, the Court held that cross burning with the intent to convey a true threat was not protected. Some of the Justices noted another difference between the two cases: the ordinance in R.A.V. had a hate crime element -- the offense had to be motivated by racial or some other discriminatory animus; the statute in Black had no such element. In years since Black was announced, the lower courts have continued to recognize true threats as unprotected, but have also continued to analyze challenges to threat statutes under the First Amendment's overbreadth doctrine and the vagueness doctrine of the Fifth and Fourteenth Amendments' due process clauses. These laws have generally survived such challenges, although an imprecisely worded statute has fallen victim to a vagueness attack upon occasion." Source: Congressional Research Service

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