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Culture War Roundup for the week of April 17, 2023

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Remember the Alt-Right march in Charlottesville in 2017? Feels like forever ago. Today several people were indicted on felony charges for "intimidation" related to the tiki torch march:

An Albemarle County grand jury issued indictments of burning an object with the intent to intimidate.

According to a release, these indictments allege an offense date of Aug. 11, 2017.

The charge is a Class 6 felony and anyone who is convicted may face up to five years in prison.

These indictments are part of an ongoing, active criminal investigation connected with the march and the violent Unite the Right rally that occurred the next day.

There is no statute of limitations on felonies in Virginia.

Here is Section 18.2-423.01-B of the Code of Virginia:

ยง 18.2-423.01. Burning object on property of another or a highway or other public place with intent to intimidate; penalty.

A. Any person who, with the intent of intimidating any person or group of persons, burns an object on the private property of another without permission, is guilty of a Class 6 felony.

B. Any person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.

Apparently this case was the subject of a minor debate in the campaign of the sitting prosecutor and his challenger:

But in Virginia, prosecutors come and go and a felony lives forever. In an October 2019 debate between then-sitting prosecutor Tracci and his challenger, Jim Hingeley, Tracci again scoffed at the idea of indicting these cases, saying Hingeley's belief that it was even possible was a sign he was inexperienced and wrong for the job. A month later, in November 2019, Hingeley won the election. Now it seems he's trying to make good on his campaign promise of proving Robert Tracci wrong.

It goes without saying that this is a political persecution, a few years ago I would have assumed First Amendment protections would still hold even for the far right but I think that ship has sailed. I am confident they will be able to get convictions or guilty pleas for a lesser sentence. Who would want to face five years for holding a tiki torch at a political rally?

A variant of this statute has actually been tested before the Supreme Court in Virginia v. Black. They held that it is constitutional to limit intimidating speech that represents a true threat, but invalidated part of the statute that directed juries to infer intimidation from the mere act of cross burning.

The statue in the Supreme Court case appears to be the template for this one. The original referred to cross burning specifically, this one is more generic.

The Court did qualify their ruling as pertaining specifically to cross burnings and "particularly virulent form[s] of intimidation":

The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is 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. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R. A. V. and is proscribable under the First Amendment.

A general ban on burning objects, especially objects whose designed purpose is to be burnt, doesn't seem to fit.

long and pernicious history as a signal of impending violence

While tiki torches don't have a long history at all of being associated with the altright, I am pretty sure Charlottesville started that association. I've met people in real life mention tiki torches as if they automatically imply someone is altright, and have heard someone say, "now I can't use tiki torches anymore."

If tiki torches are a shibboleth for the outgroup, and the law is just a tool to beat them, then who's to say the tiki torch doesn't have a long pernicious history of a signal for violence? Was there any principle behind the "cross burning has a long history" here? Wasn't it just, "cross-burning is a low-status racist thing, so sure let's punish them."