Oh jesus you naughty boy. Better luck next time.

[HopOnPop]

No, what you said was "potential to incite intimidation/violence", the cross-burning is actual intimidation. The difference is prima facie intent to intimidate.....

....Actual intimidation is a valid criteria for determining if something is a crime. "Potential to incite violence/intimidation" is not a valid criteria. The court used the former and not the latter.

Huh? What is a "potential to incite" even mean in a court? While I admit to typing the words "potential to incite xxx" earlier, why on Earth are you associating this phrase in a judicial application? Of course SCOTUS considered only the "actual intimidation" in Virginia v Black -- because, in court, that's the only kind of intimidation that exists. Courts only deal with events that have already happened, so "a potential to commit <anything>" is entirely inadmissable (one cannot judge events that have yet to happen, right?).

That said, however, when a legislative body (rather than a court) considers making laws to ban or restrict certain activities, they always do so under the rubric of "potental harm" because, unlike the courts, they are only engaging in an act of controlling future potential activities. There is no "actual" offenses yet to be redressed by new legislation (i.e. legislation is not something to be applied retroactively -- at least in a legal system that attempts to be just and fair).

So if you go back and examine in context your odd out-take, you hopefully will now note that in regard to cross-burning, I was talking about legislation, not the court decision, thus the use of the word "potential" was entirely appropriate at that point in the conversation.

As a side note (but for purposes of full disclosure) I fully accept my poor short-hand of the phrase "incite intimidation/violence/etc." which doesn't make literal sense (i.e. "incite intimidation"...if my words are taken literally... creates a rather comical picture of paying some really big guy to go and hover over another person in a menacing fashion... and I guess there might be a rare instance of that kind of thing, but I think its pretty clear that has nothing to do with the context of our current dialogue). So, despite my poor verbage in this one spot, I think it quite reasonable to expect a reader to interpret my short-hand to mean the potential to "incite violence" and "intent to intimidate" (and, again, before you jump at the use of the word "potential" here, please note I am still talking about legistive, not judicial, law and, just ot be clear, these phrases do mean "actual" intent and "actual" incitement).

Not to be harshing on you....but you keep having a kind of knee-jerk reaction to words like "potential" here without actually considering the full context of the discussion and it is leading to some very bizarre tangents (I will note a couple more below as well).

No, actually, that is the whole point. Your argument is that burning crosses is outlaws because of its "potential to incite violence".

....this is an example where you go off on the "potential" crusade, failing to make the distinction between a discussion re: legislative law vs. a discussion regarding court law....

As noted in the case, inciting violence has nothing to do with outlawing it - it is outlaws because it is a known for of racial intimidation.

That is not true. The fact that burning crosses had long been associated with incitements to violence (as well as intent to racial intimidation) in Virginia was one of the primary reasons why Virginia's legislation enacted a statute that outlawed cross burning in the first place (see the history section in the wiki articile you posted re: Virginia v. Black , it notes this fact in passing).

Virginia v. Black, to repeat the point, merely modified one of the statutes provisions (yes, regarding intent) but it never redressed, nor was it meant to, anything to do with acts of intent to commit violence, acts of intent to incite violence, or violence in any form. That doesn't mean, however, that the original STILL ACTIVE Virginia statute (and many like it in other states) doesn't redress these issues legally re: the various ways violence might be associated with cross-burning.

And, as you rightly noted, Virgina v. Black did not overturn the Virginia statute that outlaws cross burning, it merely modified its language ....

What it adds is the information that "potential to incite violence" is the furthest thing from judges mind when deciding upon the constitutionality of the matter - they care about actual intimidation.

Yes, you are correct "actual intimidation" is all that mattered to the court, but your first assertion that Virginia v. Black somehow "added the information" that changed some sort of "potential to incite violence" language in the statute is not correct. It merely struck down the prima facie provision that allowed prosecutors to simply assume intent to intimidate without demonstrating it to the court. If you want to use your "actual"-language construct, I suppose you can think of it as SCOTUS requiring "actual explicit evidence" rather than relying on "actual implicit evidence".....but both kinds of evidence were always "actual" evidence. It's simply the case, however, that the "actual" implicit evidence idea in this particular statute conflicted with the free-exercise clause in the 1st amendment, so it was elimitated on constitutional grounds.

BUT you seem to evade my question: Do you find the failure of Viginia v. Black to fully overturn the Virginia ban on Cross Buring disappointing because it still allows the law to infringe upon the rights of cross-burners? Should free-and-unfettered cross burning be allowed for any reason whatsoever regardless of such existential things like "intent to intimidate"?

No, I agree with the court's decision. [/quote]

Again, that doesn't quite answer my question here. I didn't ask if you merely agreed with the court decision, I asked if you also thought the court should have struck down the entire Virginia statute that bans public burning of crosses? More generally, should this particular activity be a right of expression for anyone in a "free society" in your view?

(Incidentally I am not trying to impugn you with this question or anything. I will respect your intellectual decision whichever way you fall. The idea that I am attempting to address is that if you do think laws against cross burning are, at least in theory, an overstepping by the state on the freedoms of it people --- then I think you and I can simply resolve this issue as a case of two people who likely hold two fundamentally different views re: the role of government in a society.

On the other hand, if you agree that the state has a legitimate right to step in and ban cross burning, I think that supports my original idea I proposed re: Jesus BJ -- namely, that if one can demonstrate some form of intent to intimidate on the part of this kid with this photo-bomb on facebook, they could rightly have grounds to prosecute him over and above any free-speech/expression rights he might may also be exercising.