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It's specifically a statute against intimidating people with burning objects written for the KKK and now applied to this Tiki Torch guy. I'm not sure how broadly that will apply given most political speech doesn't involve burning objects.
The civil rights takeaway is bizarre. Pro-segregationist southern states set the laws MLK and others were tried under not a vague, establishment. The whole point of the protests was to be arrested in order to produce news footage of well dressed non-violent black people being dragged away from lunch counters. If you look at cases like the 'Friendship Nine' they had the option to pay a fine and get out or do hard labor in prison and they did the hard labor and stayed in prison. King's most famous piece of writing was produced in prison. Jailing civil rights protestors for the six months this guy is set to serve doesn't look like a silver bullet that would kill the movement.
I think you might be overstating the importance of the presence of burning objects. In Virginia v Black, the Court said that "Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so." 538 US at 360. I don’t see why the Constitution necessarily allows the state to criminalize me walking up to you and saying, "Leave town or die, kike" but prevents the criminalization of me and a bunch of my friends standing outside a synogogue and chanting, "all Jews get out of town or die."
That being said:
In this particular case, the defendants apparently surrounded and threatened individual counter-protesters. They are not being charged simply for marching and chanting.
The Court will be issuing an opinion in a case re true threats any day now, perhaps today, so that might provide more clarity.
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Sure, but if it can be constitutionally applied in these circumstances, there's no particular reason to think a similar law without the burning requirement could not be applied to similar circumstances that don't include the burning. I.e., a law against protesting generally with an intent to intimidate. That seems a lot more likely now.
What is the similar law? There is specifically a Virginia statute against burning objects on public property with the intent to intimidate. Show me the law against 'protesting with an intent to intimidate".
Why? Let's suppose I hypothetically produced a jurisdiction with such a law. Would you find it invalid, and if so, on what grounds? Or is your position just that there is no chance of a slippery slope along these lines?
We have had categories of speech that are not protected by the first amendment for a long time, obscenity, threats, incitement to lawless action. It's easy to imagine how these narrow restrictions might be broadened and abused, yet we've had them for a long time without degenerating into a censorious dictatorship. The fact that you can imagine a hypothetical slippery slope isn't significant, the question is if we're actually sliding down it. I'm asking you for evidence that we are.
They were broadened and abused. During WW1 we sent people to prison for opposing the draft (Schenck v. United States). Then we slowly unbroadened them for a long time to the point where speech was more free. The evidence for a slippery slope is that we already slid down it and are still at this moment trying to claw our way back up.
I don’t think this is historically correct. The First Amendment was practically moribund for most of US history and it was not until well into the 20th century that the Court put any teeth into it at all. Eg, in 1915 the Court unanimously ruled that film are not speech nor press and hence film censorship is permitted. That case was not overruled until 1952.
So, the history is not "we once had more freedom but then slid down the slippery slope, and now are clawing back up." Rather, we started at the bottom
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I would gesture at a novel and pointedly selective interpretation of the law in this case, but I already gather you don't find that persuasive.
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If the powers that be had made it a felony with long jail time to sit in the wrong seat in the bus or patronize the wrong lunch counter, and the Feds had backed them up or at least just stood by, we'd still have Jim Crow.
Too late - Brown vs Board was in 1954, the Montgomery bus boycott was 1956. The Alabama authorities knew that Rosa Parks would win a federal case, so they tried not to give her one. The non-poster-girl bus protesters (most famously unmarried teen mum Claudette Colvin and long-time activist Aurelia Browder) were not treated with kid gloves, did get their federal case, and won it (Browder v. Gayle).
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The retellings of elders who lived under Jim Crow which I have heard are that actually enforcing these laws was a task that almost no one was enthusiastic about unless it was perceived as some kind of a threat to white women, and given what we know about long prison sentences(that is, they’re meaningless if you get away with the crime 99 times out of 100), it wouldn’t have done anything to make using the wrong bathroom a serious crime.
Long prison sentences are meaningless against career criminals if you get away with the crime 99 times out of 100. They'll work fine against activists. You won't get a nice black lady like Rosa Parks to deliberately refuse to move if she's courting hard time by doing so. So either you don't get your test case or you get a case of opportunity, who is going to be a LOT less sympathetic (because he -- and it'll likely be a "he" -- is the hardass type who is willing to risk hard time rather than sit where he's told). Martin Luther King might be writing letters from the Birmingham jail, but let's see how much influence he has if he's given 5 years in Georgia State Prison (where he was once sent but quickly released). Hell, never mind Jim Crow; if Scopes had been facing a felony rather than a fine, evolution still wouldn't be being taught in Tennessee.
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Southern State Legislatures were the ones making Jim Crow laws, why didn't they increase the sentences?
The idea of making the penalties high enough to deter test cases hadn't occurred to them, I suppose.
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