Oh jesus you naughty boy. Better luck next time.

[genkaus]

I did say "intimidation/violence/etc" (not merely "volence").

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

Secondly, the case you cited had nothing to say about 'inciting violence' vis a vis a burning cross, so your odd parsing out of 'violence' above, is entirely irrelevant.

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

And, as you rightly noted, Virgina v. Black did not overturn the Virginia statute that outlaws cross burning, it merely modified its language to require prosecutors to demonstrate, rather than assume, an intent to intimidate. Meaning cross burning is still restricted by law. So I am not sure what this case has to add to our conversation....

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.

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. 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.

[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.

[Minimalist]

The cross burning issue is a bit more complicated guys. Fortunately, it has been adjudicated.

http://en.wikipedia.org/wiki/Virginia_v._Black

Virginia v. Black, 538 U.S. 343 (2003), was a First Amendment case decided in the Supreme Court of the United States. Three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. In this case, the Court struck down that statute to the extent that it considered cross burning as prima facie evidence of intent to intimidate. Such a provision, the Court argued, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology." However, cross-burning can be a criminal offense if the intent to intimidate is proven.

[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.

[HopOnPop]

(I skipped over everything above. You have finally given an answer to my question from three days ago thus making everything above irrelevant -- but if you wish to raise up things past again, feel free -- but I am thinking we are both have had enough of this thread, no?)

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.

Great. Thank you for the clarification.

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.

Great. This is in line with what I have both thought and wrote.

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.

Also agreed.

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.

Wrong. You cannot know these things, so you are merely speculating. There is no way to know what was or wasn't actually charged, discussed, agreed upon, etc. (its a juvenile case so the books are sealed on it) nor even how the final plea was arrived at. The lack of information coming out of the mouth of the prosecuting DA is merely him following the law.

And there is no established practice that indicates that Christ giving a blow-job is a form of intimidation.

There doesn't have to be. Not every case is based on precident.

So this is a much clearer case of legal over-reaching.

I disagree. We have no evidence at all to demonstrate your assertion. Virginia v Black, on the other hand, was a rather slam dunk case of over-reach. In the end your only argument pretty much reduces down to a product of your own internal biases. That is the definition of "unclear" in my mind.

I still contend the kid got what he deserved.

[genkaus]

(I skipped over everything above. You have finally given an answer to my question from three days ago thus making everything above irrelevant -- but if you wish to raise up things past again, feel free -- but I am thinking we are both have had enough of this thread, no?)

My position should've been obvious from say 1. I think it was obvious to others.

Wrong. You cannot know these things, so you are merely speculating. There is no way to know what was or wasn't actually charged, discussed, agreed upon, etc. (its a juvenile case so the books are sealed on it) nor even how the final plea was arrived at. The lack of information coming out of the mouth of the prosecuting DA is merely him following the law.

Actually, we do know enough about the case to judge intent of intimidation:
1. Picture of BJ-Christ is not an established method of intimidation.
2. The picture was simply posted on his facebook page - not distributed elsewhere.
3. There were no accompanying statements with the picture indicating intimidation.
4. Intimidation is an actual crime - so if the DA had any evidence of it, he'd have charged the kid with that instead of "desecration of revered object" statute.

That there was intimidation is pure speculation on your part.

I disagree. We have no evidence at all to demonstrate your assertion. Virginia v Black, on the other hand, was a rather slam dunk case of over-reach. In the end your only argument pretty much reduces down to a product of your own internal biases. That is the definition of "unclear" in my mind.

I still contend the kid got what he deserved.

Demonstrate my assertion? Did you forget how law works? The burden of proof is on the prosecution, not defense. You have to provide evidence for there being an intent to intimidate. You can't just assume that there was intent to intimidate and expect everyone else to disprove it. Until you do so, the assumption is there was no intent to intimidate. In fact, there isn't even any actual intimidation.

For the record, you did not claim "intent to intimidate" on the kid's part until the last post. Before that, you regarded him guilty of "potential incitement of violence" and "offending the community" - both of which, if you agree with my first statement - are not crimes. Which is probably why you are now charging him with "intent to intimidate".

[Ben Davis]

Hi HopOnPop,

in my eyes the were damages in this case that may be rightly considered by our courts -- namely, in the form of intimidation/bullying (which is a civil rights issue)...

What happened can't be classified as intimidation or bullying. Intimidation requires an obvious or specified target and the intent to create fear of injury or harm. Whilst the target may be inferred, there's no way to show the intent to create fear of injury or harm.

...and, secondly, in the form of potentially incitement to violence (in that, if simply ignored, this lack of official notice would predictably be expected to encourage other youths and people to do similar things, and such situations can also predictably escalate to retaliatory actions as well -- thus it behooves the government to nip-it-in-the-bud to help preserve peace by enacting some kind of deterrent to the initial act, not as punishment but as a deterrent to others).

This can't be construed as incitement to violence as you need to demonstrate that his actions were persuading, encouraging, instigating, pressuring, or threatening so as to cause another to commit a crime. In fact, some of the resulting christian lynch mob were likely more guilty of incitement to violence than he was!

I think If you wish to argue that such forms of "damage" are too intangible to consider punishable by some form of regulation, then you calling into question a lot settled law founded under the auspices of Civil Rights and Equal Rights statutes (which I personally consider to be a hallmark development to any society that might remotely consider itself to be a "free society").

No-one can argue that intimidation and incitement to violence are intangible acts however this boy's actions are neither, by legal definition or by precedent. The decision to commit him to community service is a miscarriage of justice, plain & simple. Christian mob-law has won out on this day and the US justice system is all the poorer for it.

[Jenny A]

A little thought experiment for those who would like to hang the boy high. Would he deserve more or less punishment if in instead of taking a selfie on the actual statue, he Photoshopped himself in?

[HopOnPop]

Hi Ben,

A simple admission by the kid is all it would have taken to establish intent in most cases. As it was, he was charged on desecration. Others have mentioned perhaps he could have been charged for tresspassing as well. I am not asserting that this kid could be charged with any of these in court (and my additions to the list of potential charges was merely meant as other examples of potential avenues that might exist), I am merely trying to demonstrate that there are real potential charges here for which the kid may be guilty of -- for which we have no way of knowing about -- that justifies his sentence.

The decision to commit him to community service is a miscarriage of justice, plain & simple. Christian mob-law has won out on this day and the US justice system is all the poorer for it.

I agree that this the majority opinion here, but mere opinion does not demonstrate a "miscarriage of justice." If we are entertaining mere opinion, I would assert that this kid's parents likely played a major role, if not the dominant one, in this sentencing.

If all of the assumptions people are making are true about the kid's true intentions (i.e. this kid had no intent other than making a silly photo for his wall) AND this kid's parents were entirely on his side, I have very little doubt the case would have been lost by the city at some point (either initially or in appeal). The actual charge of "desecration of a venerated object" is one of those silly small-town statutes that is ripe for challenge, and if the parents agreed that this was a miscarriage of justice, I would think this case would have attracted additional support from the FFRF or ACLU. But, since this is not what happened, in my opinion I think its reasonable to assume that either:

(1) the kid's parents were likely over-zealous christians, just like the DA, and at the very least, together, they agreed on this sentence to "teach the kid a lesson" or

(2) the DA did actually have some sort of evidence, other than the photo, that demonstrated some other more serious intent that would actually stand up if it went to trial.

Does that clarify my Devils advocate position a bit for you?

---

A little thought experiment for those who would like to hang the boy high. Would he deserve more or less punishment if in instead of taking a selfie on the actual statue, he Photoshopped himself in?

I think I am the only massochist here so I'll give you my two cents. I don't think the kid would deserve any punishment for a photoshop mock up. I am fairly sure that the mere appearance of this picture on facebook itself is not a violation of the law in anyway. The photo merely became the document for which the prosecutor can use to prove the 'desecration" actually took place. As a photoshopped image, it would merely be freedom of expression, a piece of artwork.

[genkaus]

A simple admission by the kid is all it would have taken to establish intent in most cases. As it was, he was charged on desecration. Others have mentioned perhaps he could have been charged for tresspassing as well. I am not asserting that this kid could be charged with any of these in court (and my additions to the list of potential charges was merely meant as other examples of potential avenues that might exist), I am merely trying to demonstrate that there are real potential charges here for which the kid may be guilty of -- for which we have no way of knowing about -- that justifies his sentence.

Guilt isn't decided on potential charges nor is sentencing justified by it. When a DA brings charges, he should have a good faith basis that he can prove the charges and unless there is proof, the kid is deemed innocent. Throwing everything against the wall to see what sticks is not proof of guilt.

I agree that this the majority opinion here, but mere opinion does not demonstrate a "miscarriage of justice." If we are entertaining mere opinion, I would assert that this kid's parents likely played a major role, if not the dominant one, in this sentencing.

If all of the assumptions people are making are true about the kid's true intentions (i.e. this kid had no intent other than making a silly photo for his wall) AND this kid's parents were entirely on his side, I have very little doubt the case would have been lost by the city at some point (either initially or in appeal). The actual charge of "desecration of a venerated object" is one of those silly small-town statutes that is ripe for challenge, and if the parents agreed that this was a miscarriage of justice, I would think this case would have attracted additional support from the FFRF or ACLU. But, since this is not what happened, in my opinion I think its reasonable to assume that either:

(1) the kid's parents were likely over-zealous christians, just like the DA, and at the very least, together, they agreed on this sentence to "teach the kid a lesson" or

(2) the DA did actually have some sort of evidence, other than the photo, that demonstrated some other more serious intent that would actually stand up if it went to trial.

Does that clarify my Devils advocate position a bit for you?

You forgot option no. 3 - an expensive protracted trial is not in the kid's best interest. The parents probably got the advice that taking a plea and putting the mess behind them is preferable to a long trial where there is no certainty of verdict. The kid was guilty of desecration - that much is true - but since the law itself is unjust in this case, they'd likely lose the case, get the kid to spend time in juvie, appeal it all the way up to the supreme court which would then be in a position to overturn the law. A very lengthy and uncertain process whereas taking a plea and doing community service has him back to his life right now.

That is also probably what the DA was counting on too.

I think I am the only massochist here so I'll give you my two cents. I don't think the kid would deserve any punishment for a photoshop mock up. I am fairly sure that the mere appearance of this picture on facebook itself is not a violation of the law in anyway. The photo merely became the document for which the prosecutor can use to prove the 'desecration" actually took place. As a photoshopped image, it would merely be freedom of expression, a piece of artwork.

What was desecrated here was the image of Jesus. I doubt that the townspeople had any special reverence for the statue itself - apart from what it represented. So, whether you pose in front of a statue or simply photoshop yourself in, the implication is the same - Jesus is giving you a blowjob. Which means there is the same level of desecration and the same level of offense caused in the community - which, let's face it, is the only reason why this kid was prosecuted.

So why, according to you, should there be no punishment in that case?