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The Limits of Free Speech

The First Amendment to the U.S. Constitution says, "Congress shall make no law ... abridging the freedom of speech ...."  The Fourteenth Amendment is understood to extend this limitation to state legislatures.

Note the wording carefully.  It does not say "the freedom of speech" has no limits.  The freedom of speech may not be abridged, meaning reduced from what it was when the First Amendment was adopted.  "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Schenck v. United States, 249 U. S. 47, 52 (1919) (Holmes, J.).

Threatening people is not within "the freedom of speech."  Fourteen years ago, CJLF defended Virginia's cross-burning law as applied to a cross burned in a manner that constituted a threat to specific people, and the U.S. Supreme Court upheld it as so applied in Virginia v. Black.*

A few years later, the Virginia Legislature added a "noose law" along similar lines.   The Virginia Court of Appeals upheld the law as applied on Nov. 22 in Turner v. Commonwealth.
The case does not contain any mens rea discussion or cite Elonis v. United States.  Turner stated to the police that his intent in hanging the dummy from the noose was to "scare people away," so it does not sound like an Elonis argument would have succeeded.

Thanks to Eugene Volokh for the tip.

* The high court did say the statute could not be constitutionally applied in the joined case of Klan leader Barry Black.  Black burned a cross at a Klan rally, not a threat directed at any identifiable person.

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