BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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1
2
AB 412 (Carter)
As Amended March 23, 2009
Hearing date: June 9, 2009
Penal Code
MK:mc
HATE CRIMES: NOOSES
HISTORY
Source: California State Conference of the National Association
for the Advancement of Colored People; California Peace
Officers' Association; California Narcotic Officers
Association; California Police Chiefs Association
Prior Legislation: None
Support: Los Angeles County District Attorney's Office;
Riverside Sheriffs' Association; Los Angeles Probation
Officers' Union, AFSCME, Local 685; Association for Los
Angeles Deputy Sheriffs; California Teachers
Association; Anti-Defamation League; California
Association of Urban League Executives; California
Communities United Institute; AFSCME, AFL-CIO; City of
Lakewood
Opposition:Unknown
Assembly Floor Vote: Ayes 79 - Noes 0
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KEY ISSUE
SHOULD IT BE A MISDEMEANOR TO HANG A NOOSE, KNOWING IT TO BE A
SYMBOL REPRESENTING A THREAT TO LIFE, ON THE PROPERTY OF ANOTHER,
WITHOUT AUTHORIZATION, FOR THE PURPOSE OF TERRORIZING THE OWNER OR
OCCUPANT OF THE PROPERTY, OR IN A RECKLESS DISREGARD OF THE RISK OF
TERRORIZING THE OWNER OR OCCUPANT OF THE PROPERTY, OR TO HANG THE
NOOSE, KNOWING IT TO BE A SYMBOL REPRESENTING A THREAT TO LIFE ON A
SPECIFIED SCHOOL, PARK OR PLACE OF EMPLOYMENT FOR THE PURPOSE OF
TERRORIZING A PERSON WHO IS ASSOCIATED WITH THAT SCHOOL, PARK OR
PLACE OF EMPLOYMENT?
PURPOSE
The purpose of this bill is to make it a misdemeanor to hang a
noose knowing it to be a symbol representing a threat to life,
in order to terrorize a person who owns, occupies, attends
school at, is employed at, or is associated with the property
where the noose is hung.
Existing law provides that any person who places or displays a
sign, mark, symbol, emblem, or other physical impression,
including, but not limited to, a Nazi swastika on the private
property of another, without authorization, for the purpose of
terrorizing the owner or occupant of that private property or in
reckless disregard of the risk of terrorizing the owner or
occupant of that private property shall be punished by
imprisonment in the county jail not to exceed one year, by a
fine not to exceed $5,000, or by both the fine and imprisonment
for the first conviction and by imprisonment in the county jail
not to exceed one year, by a fine not to exceed $15,000, or by
both the fine and imprisonment for any subsequent conviction.
(Penal Code 11411(a).)
Existing law makes any person who engages in a pattern of
conduct for the purpose of terrorizing the owner or occupant of
private property or in reckless disregard of terrorizing the
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owner or occupant of that private property, by placing or
displaying a sign, mark, symbol, emblem, or other physical
impression, including, but not limited to, a Nazi swastika, on
the private property of another on two or more occasions, shall
be punished by imprisonment in the state prison for 16 months, 2
or 3 years, by a fine not to exceed $10,000, or by both the fine
and imprisonment; or by imprisonment in a county jail not to
exceed one year, by a fine not to exceed $5,000, or by both the
fine and imprisonment. (Penal Code 11411(b).)
Existing law provides that any person who burns or desecrates a
cross or other religious symbol, knowing it to be a religious
symbol, on the private property of another without authorization
for the purpose of terrorizing the owner or occupant of that
private property or in reckless disregard of the risk of
terrorizing the owner or occupant of that private property, or
who burns, desecrates, or destroys a cross or other religious
symbol, knowing it to be a religious symbol, on the property of
a primary school, junior high school, or high school for the
purpose of terrorizing any person who attends or works at the
school or who is otherwise associated with the school, shall be
punished by imprisonment in the state prison for 16 months, 2 or
3 years, by a fine of not more than $10,000, or by both the fine
and imprisonment; or by imprisonment in a county jail not to
exceed one year, by a fine not to exceed $5,000, or by both the
fine and imprisonment for the first conviction and by
imprisonment in the state prison for 16 months, 2 or 3 years, by
a fine of not more than $10,000, or by both the fine and
imprisonment; or by imprisonment in a county jail not to exceed
one year, by a fine not to exceed $15,000, or by both the fine
and imprisonment for any subsequent conviction. (Penal Code
11141(c).)
This bill provides that any person who hangs a noose, knowing it
to be a symbol representing a threat to life, on the property of
another, without authorization, for the purpose of terrorizing
the owner or occupant of that private property or in reckless
disregard of the risk of terrorizing the owner or occupant of
that private property, or who hangs a noose, knowing it to be a
symbol representing a threat to life, on the property of a
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primary school, junior high school, high school, college campus,
public park, or place of employment, for the purpose of
terrorizing any person who attends or works at the school, part,
or place of employment, or who is otherwise associated with the
school, park or place of employment shall be punished by
imprisonment in the county jail not to exceed one year, and/or
by a fine not to exceed $5,000 and for a second or subsequent
conviction, imprisonment in the county jail not to exceed one
year and/or by a fine not to exceed $15,000.
This bill contains uncodified legislative findings and
declarations regarding the history of racial hatred and murder
connected with the hanging of nooses.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
---------------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget analysis series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
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issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
At the request of the California State Conference of the
National Association for the Advancement of Colored
People (NAACP), I have introduced this bill in response
to recent incidents of noose hangings at college
campuses and other public venues in our state. One
hundred years ago, the NAACP was founded in response to
a then common practice of murdering African-Americans by
noose hangings. Just as they were in the past, the
recent noose hangings in California are directly
-----------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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correlated with racial hatred and murder. This kind of
act represents a real threat to life and safety, and it
has terrorized many college students and residents of
our state. Hanging a noose is simply unimaginable,
intolerable and a threat to public safety. It is
important that California use the full weight of the law
to discourage and punish noose hangers for threatening
or carrying out, an act of murder by noose hanging.
2. Hate Crime in California
According to the Attorney General's (AG) Hate Crime Report,
2007, there were 1,426 total hate crime events, which included
1,931 offenses; 1,764 victims; and 1,627 known suspects. Hate
crime events increased 9.2% from 1,306 in 2006 to 1,426 in 2007.
Hate crime offenses increased 13.5% from 1,702 in 2006 to 1,931
in 2007. The number of victims of reported hate crimes
increased 9.5% from 1,611 in 2006 to 1,764 in 2007. The number
of known suspects of reported hate crimes increased 0.9% from
1,612 in 2006 to 1,627 in 2007. Anti-black hate crime events
increased 15.3% from 432 in 2006 to 498 in 2007.
Race/ethnicity/national origin hate crime offenses have
consistently been the largest bias motivation category of hate
crimes reported since and account for at least 60% of all hate
crime offenses. Within this category, anti-black hate crimes
continue to be the largest bias motivation accounting for at
least 26% of all hate crime offenses annually since 1998.
3. The Noose
In 1945, sociologist Oliver C. Cox defined "lynching" as "an act
of homicidal aggression committed by one people against another
through mob action for the purpose of suppressing either some
tendency in the latter to rise from an accommodated position of
subordination or for subjugating them further to some lower
social status." (Cox, Lynching and the Status Quo (1945) 14 J.
of Negro Educ. 576, 576.)
As the NAACP said in its 2007 "State of Emergency" report: "The
hangman's noose is a symbol of the racist segregation-era
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violence enacted on blacks. . . .[It is] an unmistakable symbol
of violence and terror that whites used to demonstrate their
hatred for blacks." In analyzing the number of lynchings in
Louisiana alone from the post-bellum period into the Jim Crow
era, Michael Pfeifer found that "[l]ynchers killed 263 persons,
at least 219 of them black, in northern parishes between 1878
and 1946." (Pfeifer (2004) Rough Justice: Lynching and American
Society, 1874-1947, at 15.) Another set of statistics reported
that between 1889 and 1931, 3,290 people were lynched in the
South, of whom 2,789 were black. (Tolnay, Beck & Massey (1989)
Black Lynchings: The Power Threat Hypothesis Revisited, 67 Soc.
Forces 605, 605-06.)
The symbol of this period in American history, the noose,
appears to be making resurgence. A BusinessWeek study from 2001
noted "many experts say they are seeing a disturbing increase in
incidents of [racial] harassment." (Bernstein, Racism in the
Workplace, Bus.Wk., July 30, 2001, at 64.) 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 25 noose cases in the
18 months prior to the study, "something that only came along
every two or three years before." (Id. (quoting Ida L. Castro,
former EEOC chairwoman).) The BusinessWeek study correlates
with the findings from the AG's Hate Crimes, 2007, report that
racial harassment using the symbol of a noose is on the rise.
4. The First Amendment
The hallmark of protection of free speech under the First
Amendment is to allow for the "free trade in ideas" - even ideas
that the overwhelming majority of people might find distasteful
or discomforting. (Virginia v. Black (2003) 538 U.S. 343; see
also Texas v. Johnson (1989) 491 U.S. 397, 414 ("If there is a
bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or
disagreeable.").) Thus, the First Amendment "ordinarily" denies
states "the power to prohibit [the] dissemination of social,
economic and political doctrines which a vast majority of its
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citizens believe to be false and fraught with evil consequence."
(Whitney v. California (1927) 274 U.S. 357, 374 (Brandeis, J.,
dissenting).) The First Amendment also affords protection to
symbolic or expressive conduct as well as to actual speech.
(See, e.g.,
R. A. V. v. City of St. Paul (1992) 505 U.S. 377, 382; United
States v. O'Brien (1968) 391 U.S. 367; Tinker v. Des Moines
Independent Community School Dist. (1969) 393 U.S. 503, 505.)
Symbolic speech can incorporate symbols (i.e., noose or
swastika), signs, and other means of expression - as well as
speech - plus conduct activities such as picketing and
demonstrating receive First Amendment protection. "Displaying a
red flag as a symbol of international revolution, . . .
incorporating the Confederate stars and bars battle flag into
the official flags of several southern states to symbolize
oppression to desegregation, . . . pledging allegiance to the
national flag of the United States, . . . defacing the national
flag, [and] wearing clothing and armbands to protest the Vietnam
War." (Swanson, Unholy Fire: Cross Burning, Symbolic Speech,
and the First Amendment: Virginia v. Black, 2003 Cato Sup. Ct.
Rev. 81, 83.) "There is no question that a burning cross is a
combination of speech and conduct, and that the symbol can
convey ideas and intimidation. In Virginia v. Black the Court
found burning a cross to be sufficiently different to allow
restrictions that would otherwise be prohibited by the First
Amendment.")
The protections afforded by the First Amendment, however, are
not absolute. It has long been recognized that the government
may regulate certain categories of expression consistent with
the Constitution. (See, e.g., Chaplinsky v. New Hampshire
(1942) 315 U.S. 568, 571-572 ("There are certain well-defined
and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any
Constitutional problem").) The First Amendment permits
"restrictions upon the content of speech in a few limited areas,
which are 'of such slight social value as a step to truth that
any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality.'" (R. A. V. v.
City of St. Paul, supra, 505 U.S. 377, 382-383 (quoting
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Chaplinsky v. New Hampshire, supra, 315 U.S. 568, 572).)
As the high court has acknowledged, "Many crimes can consist
solely of spoken words, such as soliciting a bribe (Pen. Code,
653f), perjury (Pen. Code, 118), or making a terrorist threat
(Pen. Code, 422)." In In re M.S. (1995) 10 Cal. 4th 698, 710,
the court held that "the state may penalize threats, even those
consisting of pure speech, provided the relevant statute singles
out for punishment threats falling outside the scope of First
Amendment protection."
As speech strays further from the values of persuasion,
dialogue, and free exchange of ideas and moves toward willful
threats to perform illegal acts, the state has greater latitude
to regulate expression. (Shackelford v. Shirley (5th Cir. 1991)
948 F.2d at p. 938.) Nonetheless, statutes criminalizing
threats must be narrowly directed against only those threats
that truly pose a danger to society. (People v. Mirmirani
(1981) 30 Cal. 3d at p. 388, fn. 10.) For example, a state may
punish those words "which by their very utterance inflict injury
or tend to incite an immediate breach of the peace."
(Chaplinsky v. New Hampshire, supra, 315 U.S. 568, 572; see also
R. A. V. v. City of St. Paul, supra, 505 U.S. 377, 383 (listing
limited areas where the First Amendment permits restrictions on
the content of speech).)
"True threats" encompass those statements where the speaker
means to communicate a serious expression of intent to commit an
act of unlawful violence to a particular individual or group of
individuals. (See Watts v. United States (1969) 394 U.S. 705,
708 ("political hyberbole" is not a true threat); R. A. V. v.
City of St. Paul, supra, 505 U.S. 377, 388.) The speaker need
not actually intend to carry out the threat. Rather, a
prohibition on true threats "protects individuals from the fear
of violence" and "from the disruption that fear engenders," in
addition to protecting people "from the possibility that the
threatened violence will occur." (Ibid.)
a. Symbolic Speech Under the First Amendment in the
Supreme Court.
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i. R. A. V. v. City of St. Paul (1992).
In R. A. V. v. City of St. Paul, the Supreme Court laid a
rigid foundation disfavoring regulations used to quell
conduct mixed with speech. In R.A.V., the Court struck
down a city ordinance in St. Paul, Minnesota
criminalizing cross burning. (Id. at 381.) The facts
of the case involved Robert A. Viktora, a white teenager,
and several other white juveniles who burned a cross on
the lawn of the only black family in their neighborhood.
(Id. at 379.) Viktora was arrested and charged with
violating the ordinance. (Id. at 379-80.) The St. Paul
regulation made it a crime to place on public or private
property a burning cross or other symbol likely to
"arouse anger, alarm, or resentment in others on the
basis of race, color, creed, religion or gender." (Id.
at 380 (quoting St. Paul, Minn., Legis. Code 292.02
(1990)).) The Supreme Court stated that the local
ordinance did not pass constitutional muster because it
discriminated on the basis of content by targeting only
those individuals who "provoke violence" on the basis
specified in the law. (Id. at 391.) The ordinance did
not include "[t]hose who wish to use 'fighting words' in
connection with other ideas to express hostility, for
example, on the basis of political affiliation, union
membership, or homosexuality." (Ibid.) This
content-based discrimination was unconstitutional because
it allowed the city to "impose special prohibitions on
those speakers who express views on disfavored subjects."
(Ibid.)
ii. Wisconsin v. Mitchell (1993).
One year later, the Supreme Court in Wisconsin v.
Mitchell (1993) 508 U.S. 476 upheld a "hate crime"
penalty enhancement statute which when a defendant has
been found to "intentionally select[] the person against
whom the crime [is committed] because of his race,
religion, color, disability, sexual orientation, national
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origin or ancestry of that person." (Wis. Stat.
939.645(1)(b).)
In Mitchell, Mitchell and several other African-American
men beat a white juvenile unconscious after Mitchell
said, "There goes a white boy; go get him!" (Wisconsin
v. Mitchell, supra, 508 U.S. 476, 480.) Mitchell was
convicted of battery with an enhanced sentence under the
aforementioned statute because he was determined to have
intentionally selected the victim based on race.
The Supreme Court distinguished the Wisconsin hate speech
statute from that in R.A.V. by determining it to be a
regulation on unprotected conduct. (Id. at 480.) The
statute was said to focus on conduct and had only an
incidental effect on speech. The Court noted that
"[t]raditionally, sentencing judges have considered a
wide variety of factors in addition to evidence bearing
on guilt in determining what sentence to impose on a
convicted defendant." (Id. at 485.) "The defendant's
motive for committing the offense is [but] one important
factor." (Ibid.) "Deeply ingrained in our legal
tradition is the idea that the more purposeful is the
criminal conduct, the more serious is the offense, and,
therefore, the more severely it ought to be punished."
(Ibid. (quoting Tison v. Arizona (1987) 481 U.S. 137,
156.).)
iii. Virginia v. Black (2003)
In Virginia v. Black (2003) 538 U.S. 343, the Supreme
Court decided how much one can suppress conduct without
banning expression. In Black, the first respondent
burned a cross during a Ku Klux Klan rally, and the
second and third respondents burned a cross in the yard
of an African-American neighbor. (Id. at 348-350.) The
respondents were found guilty under a Virginia statute
which made 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
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or other public place." (Ibid. (quoting Va. Code Ann.
18.2-423.).]
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Respondents contended that their expressive conduct in
burning the crosses was protected by their constitutional
right to freedom of speech. The United States Supreme
Court held, however, that a prohibition of cross-burning
with the intent to intimidate was not unconstitutional
since it banned conduct rather than the expression of a
disfavored topic. While cross burning could constitute
expression, such expressive conduct was not proscribed
unless it was done with the intent to intimidate, and
targeting cross burning was reasonable because burning a
cross was historically "a particularly virulent form of
intimidation. Instead of prohibiting all intimidating
messages, Virginia may choose to regulate this subset of
intimidating messages in light of cross burning's long
and pernicious history as a signal of impending violence.
Thus, just as a state may regulate only that obscenity
which is the most obscene due to its prurient content, so
too may a State choose to prohibit only those forms of
intimidation that are most likely to inspire fear of
bodily harm. (Id. at 363.)
The Court in Black was careful to differentiate hate
speech regulated on the basis of its viewpoint from hate
speech prohibited because it seriously threatens issues
of personal security, i.e., a true threat.
b. Applying Cross-Burning Principles to Noose Hanging:
Noose displays could qualify as true threats under the
rationale of Virginia v. Black.
. . . [C]ross burnings done with the intent to
intimidate . . . [are] a particularly virulent form
of intimidation . . . Instead of prohibiting all
intimidating messages, [a state] may choose to
regulate this subset of intimidating messages in
light of cross burning's long and pernicious history
as a signal of impending violence." (Ibid.) Thus, a
state may choose to prohibit those forms of
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intimidation most likely to inspire fear of bodily
harm, i.e. the placement of a noose.
Twenty states, including the District of Columbia, have
statutes explicitly prohibiting cross burning. (1) Ala.
Code 13A-6-28; (2) Ariz. Rev. Stat. 13-1707; (3) Cal. Penal
Code 11411; (4) Conn. Gen. Stat. 46a-58 (2007); (5) Del.
Code Ann. tit. 11, 805 (2008); (6) D.C. Code Ann.
22-3312.02; (7) Fla. Stat. Ann. 876.17; (8) Ga. Code Ann.
16-11-37 (2007); (9) Idaho Code Ann. 18-7902 (2008); (10)
720 Ill. Comp. Stat. Ann. 5/12-7.6; (11) La. Rev. Stat.
Ann.14:40.4 (2008); (12) Mo. Rev. Stat. 565.095 (2008); (13)
Mont. Code Ann. 45-5-221 (2007); (14) N.Y. Penal Law 240.31
(Consol. 2008); (15) N.C. Gen. Stat. 14-12.12 (2007); (16)
Okla. Stat. tit. 21, 1174 (2007); (17) S.C. Code Ann.
16-7-120 (2007); (18) S.D. Codified Laws 22-19B-1 (2007);
S.D. Codified Laws 22-19B-2 (2007); (19) Vt. Stat. Ann. tit.
13, 1456 (2007); (20) Va. Code Ann. 18.2-423 (2008); (21)
Wash. Rev. Code Ann. 9A.36.080.) To date, three states
have passed laws to specifically punish those who hang
nooses as a means to intimidate. These states are
Connecticut, Louisiana, and New York. (Conn. Gen. Stat.
46a-58; La. Rev. Stat. Ann. 14:40.5; N.Y. Pen. Law 240.31.)
The issue is whether this bill provides sufficient
safeguards, by requiring the intent to terrorize, in order
to sanction a criminal law addressing hangman's nooses. The
use of the word "terrorize" in this bill would seem to be
substantially similar to "intimidate." Terrorize as defined
in the existing section means "to cause a person of ordinary
emotions and sensibilities to fear for personal safety."
Thus, by requiring that the noose be placed with the purpose
of terrorizing another, this bill should preserve the
constitutional right to free speech by only prohibiting a
form of "intimidation" that would most likely "inspire fear
of bodily harm."
IS THE USE OF THE WORD "TERRORIZE" SUFFICIENT TO MEET
CONSTITUTIONAL STANDARDS?
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