~ The Commonwealth successfully argued before the Court of Appeals of Virginia that the statute is constitutional, and that display on private property can still constitute display in a “public place” ~
RICHMOND (November 22, 2016)-In a case before the Virginia Court of Appeals, Attorney General Mark R. Herring’s office has successfully defended Virginia’s statute that bans “displaying [a] noose on property of another or a highway or other public place with intent to intimidate.” The Court found that the statute does not violate the First Amendment of the United States Constitution, and that display of a noose on private property can still constitute display in a “public place.”
“The Commonwealth will not tolerate expressions of hate, intolerance, or bigotry intended to intimidate people because of their race,” said Attorney General Mark Herring. “The display of a noose as a threat has rightly been banned in Virginia because it is an unmistakable signal that evokes the horrific and shameful specter of lynching. I will always stand up for those who are subject to harassment, intimidation, or persecution, and will do all I can to call out and hold accountable anyone who violates the rights of our fellow Virginians and makes them feel fearful and unwelcome.”
The case was an appeal by Jack Eugene Turner of Franklin County for his conviction on one count of displaying a noose with the intent to intimidate, in violation of Virginia Code § 18.2-423.2. The conviction stemmed from an incident in which an African-American woman in Franklin County was driving down her street and “spotted an all-black, life-size dummy hanging by a noose from a tree” in Turner’s front yard, which was located next-door to one of two African-American households on the street.
During an investigation by the Franklin County Sheriff’s Department, Turner indicated the display was meant to scare people away and admitted to being racist and having negative feelings toward African-Americans. After being photographed, the display was removed. All this occurred on the same day as the mass shooting of churchgoers at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. According to the Court of Appeals’ decision, “the record reflects that while Turner was out on bond awaiting his sentencing hearing, he placed a handmade cardboard sign against his house that read, ‘Black ni**er lives don’t matter, got rope.'”
On September 22, 2015, Turner was convicted of violating Virginia’s ban on displaying a noose with intent to intimidate. He appealed his conviction challenging the constitutionality of Virginia’s statute and whether the display occurred in “a public place.”
The Commonwealth of Virginia successfully argued that Turner’s actions constituted true threats that are not protected by the First Amendment and that Turner’s actions occurred in a “public place” as required by statute.
In its brief, the Commonwealth cited the long, violent history and unmistakable message associated with the display of a noose and its invocation of lynching. The Commonwealth cited scholarship on lynching to remind the Court that “during this country’s ‘lynching era’-the five decades between the end of Reconstruction and the beginning of the Great Depression, between 1880 and 1930-at least 2,462 African American men, women, and children died at the hands of southern mobs…In short, the phenomenon of lynching exhibited American society in its most ferocious and inhuman manifestation.”
The Commonwealth was represented in the matter by Assistant Attorney General Christopher P. Schandevel.