Changing State Laws to Prohibit the Display of Hangman's Nooses: Tightening the Knot around the First Amendment?
Barger, Allison, The William and Mary Bill of Rights Journal
It gives me great pain to read in every daily paper which visits my office of some poor black man being seized by a mob and lynched without even the semblance of law. The unlawful murderers, not satisfied with this, riddle the body of the poor Negro with bullets. Too often after the poor man is dead investigation proves that the wrong man was killed. The matter is laughed off by the cowardly outlaws with the sentence, "Only another Negro less." My God! When will this thing end, and where?1
Beginning with slavery and permeating every generation since, racism has led to grave and bone-chilling acts of terror spurred solely by the color of a fellow human's skin. As perhaps the most common display of such hatred,2 the hanging of AfricanAmericans by white mobs became a means to flaunt the power maintained by whites in the days of slavery,3 and later, of Jim Crow justice.4 Although such blatant acts of terror are virtually unthinkable today, the symbol of this dark period in American history - the noose - seems to be making a resurgence in appearances, summoning a time most Americans would rather not repeat. In Jena, Louisiana, the display of two nooses from a schoolyard tree led to an immense boiling of racial tension that ultimately spurred a national controversy.5 In workplaces throughout the United States, reports of co-workers displaying hangman's nooses in view of AfricanAmerican colleagues have become disturbingly frequent.
A BusinessWeek study from 2001 noted, "many experts say they are seeing a disturbing increase in incidents of harassment."6 The study discovered noose incidents occurring in large, diverse cities such as San Francisco and Detroit, and reported that the Equal Employment Opportunity Commission (EEOC) had managed twenty-five noose cases in the eighteen months prior to the study, '"something that only came along every two or three years before.'"7 While many hostile work environment cases involving the display of hangman's nooses in the workplace contain additional elements of racial harassment,8 most courts would likely follow the general rule that one display of a hangman's noose to taunt an African-American colleague is sufficient to bring a hostile work environment claim.9 Generally, courts seem to interpret potentially racially discriminatory acts with a high degree of sensitivity and subjectivity.10 The disturbing trend in noose incidents, which not only disrupts the workplace, but, as exemplified in Jena, now pervades our nation's school systems, requires a more stringent effort to quell the racial tension caused by such insensitive acts.
State legislators hold the key to preventing further tumultuous behavior. Many states currently maintain hate crime statutes, but due to definitional and interpretive concerns, the existing statutes may not effectively punish those individuals who display hangman' s nooses with the intent to harass or intimidate based on race. 1 1 By enacting state statutes placing criminal prohibitions on displays of hangman' s nooses, legislators will be able to control the sharp increase in noose cases and emphasize the importance of tolerating diversity in this supposedly tolerant modern society. Many state legislators, however, may be wary to implement such a statute for fear that it may cross into regulating constitutionally protected speech. Although the First Amendment, as incorporated through the Fourteenth Amendment, prohibits state regulation of expressive or political speech,12 a criminal ban on the display of hangman's nooses would not interfere with this right because such displays represent harmful and harassing conduct rather than constitutionally-protected speech.13 The display of a hangman' s noose with the intent to harass or intimidate a particular person or class of people is a racist act comparable to the burning of a cross, an act that has been outlawed explicitly in twenty states as well as the District of Columbia.14
This Note argues that state legislatures already mamtaining criminal laws banning cross burning should modify these statutes to proscribe the display of hangman's nooses as well, and states without such existing statutes should - as a matter of good public policy - adopt this type of law. …