792 S.E.2d 299
Va. Ct. App.2016Background
- On June 17, 2015, a life-size black dummy hung by a noose was displayed in the front yard of Jack Eugene Turner’s home on Lindsey Lane, visible from the road.
- Witnesses (neighbors who were African-American) saw the display, felt threatened, and reported it to the sheriff; one witness was particularly distressed because the sighting coincided with the Charleston church shooting.
- Turner told police the display was a “scarecrow,” admitted racist views, and implied the display was meant to scare people; deputies photographed and removed the display.
- A grand jury indicted Turner under Va. Code § 18.2-423.2(B) for displaying a noose on a public place in a manner having a direct tendency to place others in reasonable fear and with intent to intimidate.
- At a bench trial the circuit court found Turner guilty; the court sentenced him to five years with four and a half years suspended. Turner appealed, arguing First Amendment protection and that the display occurred on his private property (not a public place).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether displaying a noose constitutes unprotected "true threats" | Commonwealth: the statute targets displays that are true threats intended to intimidate and cause reasonable fear | Turner: display was symbolic speech protected by First Amendment (including on private property) | Displaying a noose in the proscribed manner can be a "true threat" and is not protected speech; conviction upheld |
| Whether Va. Code § 18.2-423.2 is facially/as-applied constitutional | Commonwealth: statute valid to prohibit intimidating displays that tend to cause fear | Turner: statute infringes First Amendment rights to use symbols on private property | Statute constitutional as applied; it targets intimidation/true threats, like cross-burning jurisprudence |
| Whether the First Amendment gives absolute protection to threatening displays on the defendant’s own property | Turner: absolute right to display symbols (e.g., noose) on his property | Commonwealth: no absolute right where conduct is intended to threaten or intimidate others | Appellant defaulted the absolute-right argument on appeal; court also rejected absolute protection analogous to shouting fire; no blanket protection |
| Whether the noose display occurred in a "public place" under § 18.2-423.2(B) | Turner: display was on his private property, not a public place, so statute section B does not apply | Commonwealth: display was clearly visible from the road and thus communicated to the public; fits public-place definition | Court adopted Hackney definition: a place so situated that what passes there can be seen by passersby; Turner’s display qualified as a public place |
Key Cases Cited
- Virginia v. Black, 538 U.S. 343 (2003) (states may prohibit cross burning done with intent to intimidate; true threats unprotected)
- Black v. Commonwealth, 262 Va. 764 (2001) (state court decision addressing cross-burning statute reversed by U.S. Supreme Court)
- Hackney v. Commonwealth, 186 Va. 888 (1947) (definition of "public place" where conduct on private premises is communicative to the public)
- Schenck v. United States, 249 U.S. 47 (1919) (First Amendment limits where speech poses a clear and present danger; Holmes’ famous analogy of shouting fire in a crowded theater)