Oh jesus you naughty boy. Better luck next time.

[genkaus]

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.

The court decision was about the legislation - did you miss that part? The court judged that the legislation made by the legislative bodies was unconstitutional to an extent.

Legislative bodies, under their rubric of potential harm, often overreach themselves and enact laws infringing upon civil liberties. Or, more often, it is simply to pander to the voter base. That is where the judicial system comes in.

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).

There is your problem - the legislative is not separate from the judicial. The legislative bodies don't always enact fair and just laws, they enact laws that are popular at the moment. The concept of "potential harm" has unlimited application and the legislative bodies would like nothing more than to apply that concept freely and without restriction. Curb anti-government speech, enact death penalty for gays, make it harder for women to divorce, outlaw anything that can be regarded as blasphemous, prosecute piss-christ, prosecute depictions of Mohammad - any of these can be outlawed on the basis of "potential harm". And this is where the courts come in and overturn the legislation.

....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....

What distinction? The judgment of the court is about the legislative law and the changes the court made apply to the legislative law.

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).

And that was a case of legislative overreach - something the court was required to and did correct.

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.

Actually, it does redress that issue - the whole point of showing intent to intimidate is to show where the acts of violence are likely to be associated and where they are not. "Might be" associated is no longer sufficient.

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.

Did you even read your own argument? The stature that conflicted with free-exercise clause was eliminated. That is the added information here.

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?

My agreement with the court's decision answers both of those questions - no, the court shouldn't have struck down the entire statute. Yes, burning of crosses publicly or privately with no demonstrable intent of intimidate should and is allowed. And yer, this particular activity is a right of expression as long as it is not expressing intimidation.

(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.

I'll put it as simply as I can - you have freedom of expression, but the limit to that freedom is when it becomes coercive. If the government enacts laws to prevent coercion, then it is right to do so. If it enacts laws to curb free-speech that is not coercive then it has overstepped its bounds.

Re: cross-burning. The government did overstep its bounds by banning all cross-burning. The courts corrected that overreach by declaring only the cross burnings with intent to intimidate as illegal. Which means, if you simply dislike Christians or you are getting rid of bunch of old stuff or you are creating an art piece - basically, anything that results in you burning a cross without an any intent to intimidate - then that should be and is allowed.

Re: Christ BJ. There was no intent to intimidate on the kid's part. The prosecutor didn't even hint that any such intent was present. And there is no established practice that indicates that Christ giving a blow-job is a form of intimidation. So this is a much clearer case of legal over-reaching.