Jack Eugene Turner v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Humphreys, AtLee and Senior Judge Clements
Argued at Lexington, Virginia
JACK EUGENE TURNER
OPINION BY
v. Record No. 2039-15-3 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 22, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
A. Joseph Canada, Jr., Judge Designate
C. Holland Perdue III (Raine & Perdue, PLC, on briefs), for
appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Jack Eugene Turner (“Turner”) appeals the December 8, 2015 decision of the Circuit
Court for the County of Franklin (the “circuit court”) convicting Turner of one count of
displaying a noose with the intent to intimidate, in violation of Code § 18.2-423.2. Turner’s
three assignments of error are that the circuit court erred in (1) denying Turner’s motion to
dismiss because the circuit court failed to find that the displaying of a noose on private property
was protected free speech under the Constitution of the United States; (2) denying that Turner
lacked a constitutional right to express his freedom of speech by displaying a noose on his own
property; and (3) finding Turner guilty of displaying a noose with the intent to intimidate, in
violation of Code § 18.2-423.2.
I. Background
On Wednesday, June 17, 2015, around 5:00 p.m., Traze Witcher (“Witcher”) was
returning home from her job as a nurse at Trinity Mission of Rocky Mount. Shortly after she
turned on to her street, Lindsey Lane in Rocky Mount, Franklin County, Virginia, she spotted an
all-black, life-size dummy hanging by a noose from a tree in the yard (“the noose display”) of the
second house, 108 Lindsey Lane.1 Witcher testified that, to her, it appeared as if a black man
was being hanged “from a rope from a tree in [Turner’s] yard.” Only hanging fifteen to thirty
feet from the side of the road, the noose display was visible to anyone traveling on Lindsey Lane.
Turner resides and owns the property at 108 Lindsey Lane. He resides next door to John
and Keena Mitchell (“John” or “Keena” or collectively “the Mitchells”).2 Keena is Witcher’s
sister; John is Witcher’s brother-in-law. The Witchers and the Mitchells are the only
African-American families residing on Lindsey Lane. The Mitchells live with their two male
children in the first house on Lindsey Lane. The Mitchells’ home sits approximately thirty to
forty feet from Turner’s home, and a fence does not separate the properties.
Immediately after seeing the noose display, Witcher turned around and drove directly to
the Mitchells’ house. Witcher testified that she was so fearful upon seeing the black dummy
hanging from the noose in Turner’s yard that all she could do after arriving at the Mitchells’
home was blow the car horn until Keena and John came outside. Witcher drove Keena and John
to see the noose and black dummy display. Upon seeing the display, John went to the Franklin
County Sheriff’s Department (the “Sheriff’s Department”) and reported the sight.
1
Lindsey Lane is a long gravel road with approximately a dozen homes located along it.
The only option for residents to access their property is by traveling this road past Turner’s
property.
2
At the time Turner presented the noose display, Witcher had lived on Lindsey Lane for
over ten years. The Mitchells had lived on Lindsey Lane for two years.
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The following day, Captain Paul Caldwell (“Captain Caldwell”) of the Sheriff’s
Department began investigating John’s report. Captain Caldwell arrived at Turner’s residence
around noon on Thursday, June 18, 2015. Captain Caldwell asked Turner about the object
hanging from the tree in Turner’s yard. Turner stated that it was a “scarecrow.” When Captain
Caldwell commented that there was no reason for a scarecrow without a garden, Turner implied
it was to scare away people. Turner explained that he was a “raciest” and that he “did like blacks
but not niggers.”3 At this point, Captain Caldwell told Turner that the noose display was a
“violation” and would be seized after Captain Caldwell spoke with the Commonwealth’s
Attorney. Then, Captain Caldwell and another officer photographed the dummy as it hanged in
the noose.4 After taking photographs, the noose display was removed and taken to the Sheriff’s
Department.
Prior to this incident, little contact occurred between Turner and the Witchers and the
Mitchells. On one occasion, in December 2013, the Mitchells received a letter from Turner
apologizing for the type of person he was and for not giving them a chance to let him find out
what kind of neighbors they were. On a separate occasion, Turner called the police on the
Mitchells to report them for a “humming noise” that he often complained emitted from the
Mitchells’ property. Yet, prior to June 17, 2015, neither John nor Keena Mitchell feared Turner.
As for Witcher, in April 2015 she borrowed Keena’s van only to have Turner flip his middle
finger at her as she passed his property. Then, Turner said “[you] people are nothing but
ignorant” and called Witcher a “stupid B.”
3
Turner pronounced the word “raciest” as the spelling reflects in this opinion and noted
in the record. It is understood that he meant racist.
4
The dummy’s neck was wrapped in duct tape and the rope had been tied around the
neck and one of the dummy’s arms. The dummy’s feet were hanging several feet off the ground.
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At trial, John testified that after seeing the noose display he was especially upset because
nine African-Americans had been killed in South Carolina earlier the same day at the
“Charleston Church Shooting.”5 He specified that the noose display caused him to fear for his
family’s safety. John’s wife, Keena, testified that upon seeing the noose display she feared for
herself and her children. In the days after seeing the noose display, John stated that before he
would leave for work in the morning he would check to make sure no one was standing in his
yard. Also, each day he questioned whether he was going to return home from work with
something thrown at his house or a message spray painted on his home. John attributed his
feelings to seeing the noose display on Turner’s property.
After the incident, the Mitchells no longer allow their sons to walk past Turner’s house
because the Mitchells are uncertain of what Turner is capable of doing. John explained that “if
[Turner] can hang a noose I don’t know what he is going to do.” Although the Mitchells did not
directly interact with Turner again after the noose display, Turner continuously hung a
confederate flag in a window of his home facing the Mitchells’ house.6
On August 3, 2015, a Franklin County grand jury issued an indictment against Turner
that on or about June 17, 2015, Turner “unlawfully and feloniously did display a noose on a
public place in a manner having a direct tendency to place another person in reasonable fear or
apprehension of death of [sic] bodily injury and with the intent of intimidating a person or group
of persons.” Turner was arrested for violating Code § 18.2-423.2.
5
The “Charleston Church Shooting” is a reference coined by the media and is commonly
used to refer to a mass shooting resulting in nine deaths that took place at the Emanuel African
Methodist Episcopal Church in downtown Charleston, South Carolina, on June 17, 2015.
6
Although not part of our analysis, the record reflects that while Turner was out on bond
awaiting his sentencing hearing, he placed a handmade cardboard sign against his house that
read, “Black nigger lives don’t matter, got rope.”
-4-
Prior to trial, Turner filed a motion to dismiss arguing that the conduct for which he was
charged was protected free speech granted by the First Amendment of the Constitution and that
he did not violate Code § 18.2-423.2 because the noose display was exhibited on private
property, which is not property of another, a highway, or public place. On August 20, 2015, the
circuit court took Turner’s motion to dismiss under advisement and continued the case for a
bench trial on September 22, 2015.7
At trial, Turner pleaded not guilty to the charge against him. The circuit court overruled
Turner’s motion to dismiss and found that he hanged the noose in a public place because it was
up in a tree where it was visible from the road. The circuit court further found the noose display
was hanged to specifically intimidate others. Thus, the circuit court found Turner guilty of
violating Code § 18.2-423.2. On December 8, 2015, Turner appeared in the trial court for
sentencing. Prior to the sentencing hearing, the circuit court heard argument on Turner’s motion
to reconsider the finding of guilt. This motion was denied. Afterward, the circuit court
sentenced Turner to five years’ incarceration with four years and six months suspended.
II. Analysis
A. Standard of Review
“Under well-settled principles of appellate review, [this Court] consider[s] the evidence
presented at trial in the light most favorable to the Commonwealth, the prevailing party below.”
Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v.
Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). “This principle requires this
Court to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and
regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to
7
At the hearing regarding Turner’s motion to dismiss, Turner announced that he was not
arguing the constitutionality of the statute; rather, his argument is that he was unconstitutionally
seized.
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be drawn therefrom.’” Beck v. Commonwealth, 66 Va. App. 259, 262, 784 S.E.2d 310, 311
(2016) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)).
“It is the prerogative of the trier of fact to ‘resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Sierra v.
Commonwealth, 59 Va. App. 770, 776, 722 S.E.2d 656, 658 (2012) (quoting Brown v.
Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271, 274 (2010)).
“A factfinder’s resolution of conflicting facts, as well as competing inferences, receives
‘the highest degree of appellate deference.’” Coleman v. Commonwealth, 52 Va. App. 19, 23
n.2, 660 S.E.2d 687, 689 n.2 (2008) (quoting Thomas v. Commonwealth, 48 Va. App. 605, 608,
633 S.E.2d 229, 231 (2006)). This Court does “not ask whether we, as appellate judges, believe
‘the evidence at the trial established guilt beyond a reasonable doubt.’” Thomas, 48 Va. App. at
608, 633 S.E.2d at 231 (quoting Stevens v. Commonwealth, 46 Va. App. 234, 249, 616 S.E.2d
754, 761 (2005) (en banc)). Rather, we ask only whether “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Stevens, 46 Va. App. at
249, 616 S.E.2d at 761. Furthermore, “[t]he judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict, and will not be disturbed on appeal unless plainly
wrong or without evidence to support it.” Crislip v. Commonwealth, 37 Va. App. 66, 69, 554
S.E.2d 96, 97 (2001) (quoting Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642,
643 (1986)). Finally, questions of both constitutional interpretation and statutory construction
are reviewed de novo. Lawlor v. Commonwealth, 285 Va. 187, 240, 738 S.E.2d 847, 877
(2013).
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B. Whether Turner’s actions constitute “True Threats” which are not protected by the
First Amendment
“The hallmark of the protection of free speech is to allow ‘free trade in
ideas’—even ideas that the overwhelming majority of people might find
distasteful or discomforting.”
—Justice Sandra Day O’Connor, Virginia v. Black, 538 U.S. 343, 358 (2003).
In 2009, the General Assembly enacted Code § 18.2-423.2, which provides as follows:
A. Any person who, with the intent of intimidating any person
or group of persons, displays a noose 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, displays a noose 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.
(Emphasis added). In his first two assignments of error, Turner argues that his conviction under
Code § 18.2-423.2(B) should be reversed because, notwithstanding the provisions of that statute,
he had “an absolute right under the First Amendment of the United States Constitution, however
reprehensible or offensive, to burn a cross, fly any flag or to hang a noose in/on [his] own private
property.”
It is a foundational right that “[t]he First Amendment, applicable to the States through the
Fourteenth Amendment, provides that ‘Congress shall make no law . . . abridging the freedom of
speech.’” Black, 538 U.S. at 358 (quoting U.S. Const. amend. I). “If there is a bedrock principle
underlying the First Amendment, it is that the government may not prohibit the expression of an
idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson,
491 U.S. 397, 414 (1989). “The First Amendment affords protection to symbolic or expressive
conduct as well as to actual speech.” Black, 538 U.S. at 358. However, protections afforded by
the First Amendment are not absolute.
-7-
The Supreme Court of the United States has “long recognized that the government may
regulate certain categories of expression consistent with the Constitution.” Id. True threats are
among the certain categories of speech that a state may prohibit without violating the First
Amendment. Id. at 359. “‘True threats’ encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.” Id. Even where the speaker does not “actually
intend to carry out the threat,” a “prohibition on true threats protects individuals from fear of
violence and from the disruption that fear engenders, in addition to protecting people from the
possibility that the threatened violence will occur.” Id. at 360. 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.” Id.
Code § 18.2-423.2, Virginia’s noose statute, is substantially similar to Virginia’s
cross-burning statute, Code § 18.2-423, that was upheld by the Supreme Court of the United
States in Virginia v. Black. 538 U.S. at 347-48. Pursuant to Virginia’s cross-burning statute, it
is a felony “for any person or persons, with the intent of intimidating any person or group of
persons, to burn, or cause to be burned, a cross on the property of another, a highway or other
public place.” Id. at 348; Code § 18.2-423. The statute further provides that “[a]ny such burning
of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons,” a
provision that has no equivalent in Virginia’s noose statute. Black, 538 U.S. at 348; Code
§§ 18.2-423, 18.2-423.2.
Black consolidated three cases involving convictions based on Code § 18.2-423.
Appellant Black burnt a cross on the private property of another with permission during a Ku
Klux Klan (the “Klan”) rally in Carroll County, Virginia. Black, 538 U.S. at 348, 350. The
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other two appellants, Richard Elliott and Jonathan O’Mara, were not affiliated with the Klan and
had burnt a cross on the private property of an African-American man in the City of Virginia
Beach, Virginia. Id. at 350. The Supreme Court of Virginia held Code § 18.2-423
unconstitutional on its face. Black v. Commonwealth, 262 Va. 764, 779, 553 S.E.2d 738, 746
(2001). However, the Supreme Court of the United States considered and rejected the Supreme
Court of Virginia’s judgment that Virginia’s “cross-burning statute is unconstitutional because it
discriminates on the basis of content and viewpoint.” Black, 538 U.S. at 360. Disagreeing, the
Supreme Court of the United States held that the First Amendment permits a state to “choose to
prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Id.
at 363. Thus, Virginia can “outlaw cross burnings done with the intent to intimidate because
burning a cross is a particularly virulent form of intimidation.” Id. “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.” Id.
Ultimately, the Supreme Court concluded that a state may “choose to prohibit only those forms
of intimidation that are most likely to inspire fear of bodily harm.” Id. at 363 (emphasis added).
Turner quotes Black v. Commonwealth—which the Supreme Court of the United States
reversed in Virginia v. Black—for the general proposition that people have the right to “use
symbols to communicate,” and thus they may “reverently worship the cross or burn it as an
expression of bigotry.” 262 Va. at 778-79, 553 S.E.2d at 746. However, in Virginia v. Black,
the Supreme Court held that the “fact that cross burning is symbolic expression . . . does not
resolve the constitutional question.” 538 U.S. at 361. Here, the fact Turner hanged a dummy in
a noose in his front yard as a form of “symbolic expression . . . does not resolve the
constitutional question” either. Id. Rather, we look to whether the public display of a noose
evokes a “long and pernicious history as a signal of impending violence.” Id. at 363.
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“During this country’s ‘lynching era’—the five decades between the end of
Reconstruction and the beginning of the Great Depression, between 1880 and 1930—at least
2,462 African American men, women, and children died at the hands of southern mobs.” Lu-in
Wang, The Complexities of “Hate”, 60 Ohio St. L.J. 799, 833 (1999). “The mob inflicted death,
death that was the result of extraordinary, sadistic cruelty.” Id. at 834. “Almost all of their
killers were white.” Id. at 833. We know from historical accounts that victims were often
tortured before being executed, sometimes “by being slowly roasted over a fire,” other times “by
having limbs or sexual organs amputated.” Id. at 834. After an execution, members of the mob
might distribute “pieces of the charred remains . . . as souvenirs to the mob whose members
desired a keepsake as a remembrance of the notable happening.” Id. “In short, the phenomenon
of lynching exhibited American society in its most ferocious and inhuman manifestation.” Id.
“[L]ynching had a powerful terroristic effect on the target population.” Id. at 835. “The
use of violence was aimed not just at the individual victim but at the black community generally,
and the gruesome details of each event were publicized widely through the press and word of
mouth.” Id. at 835-36. “As a result, southern blacks lived with the knowledge that any one of
them could be a victim at any time.” Id. at 836. Therefore, we conclude that the public display
of a noose evokes a “long and pernicious history as a signal of impending violence.” Black, 538
U.S. at 363. As a result of lynching’s history as a clear signal of impending violence, we hold
that the Commonwealth may choose to regulate this subset of intimidating messages through the
display of a noose in the same manner and for the same reason it may regulate the message
conveyed by the burning of a cross. Id. at 360.
Virginia’s statute prohibiting the display of a noose, Code § 18.2-423.2, contains the
same “intent of intimidating any person or group of persons” element contained in the
cross-burning statute, Code § 18.2-423. Moreover, Virginia’s noose statute does not contain the
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prima facie evidence provision contained in the cross-burning statute that the plurality in Black
found to be unconstitutional. 538 U.S. at 347-48, 367. Furthermore, the General Assembly
inserted an additional element in the noose statute not found in the cross-burning statute—in
order to convict a defendant for hanging a noose under Code § 18.2-423.2(B), the
Commonwealth is required to prove that the noose was displayed “in a manner having a direct
tendency to place another person in reasonable fear or apprehension of death or bodily injury.”
Because of this added element, we hold that the scope of Code § 18.2-423.2 only encompasses
the exhibition of a noose that represents a “true threat.” See Black, 538 U.S. at 360.
“Intimidation” rises to the level of a “true threat” in cases where, as here, the person
communicating the threat “directs [the] threat to a person or group of persons with the intent of
placing the victim in fear of bodily harm or death.” Id. Thus, pursuant to Black, we hold that
displaying a noose in the manner Code § 18.2-423.2 proscribes constitutes a “true threat,” and,
like cross burning, it is undeserving of First Amendment protection. Considering the evidence
presented at trial in the light most favorable to the Commonwealth, Turner intended to intimidate
others via his noose display. In short, while the First Amendment protects Turner’s right to be a
racist and even to convey his racist beliefs to others, the protections of our Constitution do not
permit him to threaten or intimidate others who do not share his views. Therefore, when his
“speech” took the form of actions intended to threaten, intimidate or place others in reasonable
fear of bodily harm, his symbolic “speech” was not entitled to constitutional protection.
With regard to Turner’s second assignment of error in which he argues that he had an
absolute right under the First Amendment to use symbolic or offensive conduct however
reprehensible or offensive and with the intent to intimidate if he did so upon his own property,
we conclude that he has procedurally defaulted that issue. Pursuant to Rule 5A:20(e), an
appellant’s opening brief must contain “[t]he principles of law, the argument, and the authorities
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relating to each question presented.” “Statements unsupported by argument, authority, or
citations to the record do not merit appellate consideration. We will not . . . correct deficiencies
in a brief.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Turner
failed to cite any authority whatsoever in support of his argument that the First Amendment
offers blanket protection for threats made on his private property, thus he failed to comply with
the provisions of Rule 5A:20(e), and we will not consider his arguments on appeal. Moreover, in
concluding that the First Amendment does not offer the sort of blanket protection that Turner
seeks, Justice Holmes famously observed in Schenk v. United States, 249 U.S. 47 (1919), that
falsely shouting “fire” in a crowded theater is not protected speech under the First Amendment
and we can think of no principled constitutional reason why that should change if you happen to
own the theater and Turner has offered none.
C. Public Place: Code § 18.2-423.2
The meaning of the words “public place,” in the context of Code § 18.2-423.2, is a
question of first impression in the Commonwealth.8 Code § 18.2-423.2(B) prohibits displaying a
noose “on a highway or other public place.” (Emphasis added). Turner alternatively argues that
his conviction should be overturned because Code § 18.2-423.2 “does not ban the conduct
complained of . . . as it occurred solely on Turner’s property” and therefore not in a “public
place.” Further, Turner argues that the circuit court’s “finding that [his] property was a public
place is erroneous and not supported by even the most expansive definition of public property.”
8
Code § 4.1-100 defines “public place,” as “any place, building, or conveyance to which
the public has, or is permitted to have, access, including restaurants, soda fountains, hotel dining
areas, lobbies, and corridors of hotels, and any highway, street, lane, park, or place of public
resort or amusement.” However, “Code § 4.1-100 limits its definitions of terms, including
‘public place,’ to Title 4.1, applying the provisions of the Alcoholic Beverage Control Act.
There is no nexus in statute or case law between the provisions of Titles 4.1 and 18.2 to
substantiate the argument to transmorph the definition of non-identical terms in one to the other.”
Crislip, 37 Va. App. at 70, 554 S.E.2d at 98.
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When interpreting and applying a statute, this Court assumes “that the General Assembly
chose, with care, the words it used in enacting the statute, and we are bound by those words.”
PKO Ventures, LLC v. Norfolk Redevelopment & Hous. Auth., 286 Va. 174, 183, 747 S.E.2d
826, 831 (2013). “Moreover, when the General Assembly has used specific language in one
instance, but omits that language or uses different language when addressing a similar subject
elsewhere in the Code,” a reviewing court “must presume that the difference in the choice of
language was intentional.” Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va. 330, 337, 714
S.E.2d 922, 925 (2011). Here, the General Assembly used the word “property” in subsection
(A), and “place” in subsection (B). Code § 18.2-423.2. Accordingly, we “must presume” that
the General Assembly meant something other than public property when it proscribed the
displaying of a noose in a “public place” in subsection (B). Zinone, 282 Va. at 337, 714 S.E.2d
at 925; Code § 18.2-423.2(B) (emphasis added).
“The primary objective of statutory construction is to ascertain and give effect to
legislative intent. The plain, obvious, and rational meaning of a statute is to be preferred over
any curious, narrow, or strained construction.” Commonwealth v. Zamani, 256 Va. 391, 395,
507 S.E.2d 608, 609 (1998). A common dictionary definition of the word “public” is “a place
accessible or visible to all members of the community.” Webster’s Third New International
Dictionary 1836 (3d ed. 1993) (emphasis added). The same dictionary defines the word “place”
as “physical environment” or “physical surroundings.” Id. at 1727. Black’s Law Dictionary
defines “public place” as “[a]ny location that the local, state, or national government maintains
for the use of the public, such as a highway, park, or public building.” Public Place, Black’s
Law Dictionary (10th ed. 2014). These definitions alone do not provide much guidance.
Yet, while the definition of “public place” may be a case of first impression under the
current Code, the Supreme Court of Virginia previously defined the term in Hackney v.
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Commonwealth, 186 Va. 888, 45 S.E.2d 241 (1947), in the context of the Code of Virginia then
in effect. In Hackney, the Supreme Court decided “whether loud, boisterous, vile and abusive
language uttered by a man standing on his porch to a person passing along the highway within
thirty feet of the speaker constitutes disorderly conduct within the meaning of chapter 296 of the
Acts of 1946.” Id. at 889-90, 45 S.E.2d at 241-42. The Court held that it did. In doing so, the
Supreme Court provided us a framework of how to define “on a highway or other public place”
because it had to determine the meaning of the phrase within the Code section at the time, “[i]f
any person behaves in a riotous or disorderly manner in any street, highway, public building, or
any other public place . . . , he shall be guilty of a misdemeanor.” Id. at 890, 45 S.E.2d at 242
(emphasis added).
As we have done here, the Hackney Court began its analysis with the commonly
understood definition:
Webster’s International Dictionary, 2d Ed., defines “place” as “a
portion of space occupied by a body;” “any particular spot or
locality.” The same authority defines “public” as “open to the
knowledge or view of all; generally seen, known, or heard; without
privacy, concealment, etc.” “A place so near and so open that
persons traveling the highway can see card or dice playing thereat
is abstractly and per se a public place.” 6 Words and Phrases, p.
5807. Bouvier’s Law Dictionary defines “public place” as “Any
place so situated that what passes there can be seen by any
considerable number of persons, if they happen to look.”
Id. at 891-92, 45 S.E.2d at 242-43. Then, the Court reasoned that
[t]he use of offensive language on one’s own premises does not
constitute a violation of . . . Penal Law unless that person
communicates it to the public; for example, shouts offensive
language from a window on a public street and thus annoys and
disturbs some person or persons who are within hearing of the
voice.
Id. at 893, 45 S.E.2d at 243 (emphasis added). Extrapolating from the language in Hackney, we
hold that the use of offensive language by use of a symbol on one’s own premises constitutes a
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violation of the law when that symbol is used as a means to communicate it to the public, and
thus disturbs persons who are within the viewpoint of the communication, display, or message.
In the case at bar, we conclude that the General Assembly’s purpose in enacting the
noose statute is to prohibit people from displaying nooses to communicate “true threats” as
defined in Black. A “prohibition on true threats protects individuals from fear of violence and
from the disruption that fear engenders, in addition to protecting people from the possibility that
the threatened violence will occur.” Black, 538 U.S. at 360. We conclude that using the
definition for “public place” endorsed in Hackney to define the phrase in Virginia’s noose statute
furthers the General Assembly’s purpose in prohibiting the display of nooses where such display
is accompanied by the intent to intimidate and conducted in a manner having a direct tendency to
place people in reasonable fear of death or bodily injury. Thus, we adopt the definition for the
term “public place” that gives effect to this legislative intent as announced in Hackney.
It is without doubt that the location of the noose and dummy in Turner’s front yard—
where it was “clearly visible” from the street—qualifies as a “public place” under the definition
in Hackney. The facts, taken in the light most favorable to the Commonwealth, demonstrate that
Turner admitted to Captain Caldwell that the noose and dummy were utilized as a “scarecrow”
meant to “scare people away.” Witcher and the Mitchells testified that the noose and dummy
were “very visible” and “clearly visible” to them from the street, and were hanging in “plain
sight” where you “couldn’t miss it if you tried.” Moreover, when Witcher and the Mitchells saw
the noose display, they feared for their safety and for the safety of their families.
III. Conclusion
As Justice Robert Jackson reminded us, “the very essence of constitutional freedom of
press and of speech is to allow more liberty than the good citizen will take. The test of its
vitality is whether we will suffer and protect much that we think false, mischievous and bad, both
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in taste and intent.” Williamson v. United States, 184 F.2d 280, 283 (2d Cir. 1950). A
constitutional limit to that allowance has been reached when an idea becomes a threat that causes
reasonable people to fear leaving their homes.
For all of these reasons, we conclude that Code §18.2-423.2 is constitutional as applied in
this case and further that the evidence was sufficient to support the circuit court’s conclusion that
the offense occurred in a public place. Under circumstances in this case the use of an
intimidating and threatening display on one’s own premises constituted a violation of the law
because Turner displayed a noose and dummy in a place and manner to communicate threats to
others with the intent to place members of the public in fear of violence and bodily harm. We
therefore affirm the judgment of the circuit court convicting Turner of displaying a noose
with the intent to intimidate, in violation of Code § 18.2-423.2.
Affirmed.
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