The Tiki-Torch Charges Are Prosecutorial Abuse

J ust yesterday, I explored why it was bad for Chuck Schumer and other Democrats to laud political mobs on their own side while bringing felony charges carrying significant jail time against political mobs on the other side — even when that meant throwing the book against people who committed no acts of violence. Well, here we are a day later, and we have news that criminal charges have been brought against three far-right protesters at the infamous 2017 Charlottesville tiki-torch rally. These men were extradited from Texas, Ohio, and South Carolina to Virginia and charged with . . . marching with tiki torches:

Prosecutors allege the torch carriers violated a rarely enforced criminal statute, which makes it a crime to burn objects with intent to intimidate, when they marched around the University of Virginia campus on Aug. 11, 2017, while chanting “You will not replace us” and the Nazi slogan “Blood and soil.” . . . Burning objects with intent to intimidate is punishable in Virginia by one to five years in prison.

“You have to show that the conduct created a reasonable apprehension of death or bodily harm,” said Anne M. Coughlin, a U-Va. School of Law professor who for years has called on prosecutors to file charges against the torch carriers. “There is very strong evidence that these folks were here for the purpose of terrifying our Jewish friends and neighbors — people of color.” The law was enacted in 2002 partly in response to the Ku Klux Klan, which was known for burning crosses in public to scare the Black population. It is “tailor-made” for a criminal case against the torch carriers at the rally, Coughlin said.

This is an insane and abusive prosecution, and quite likely unconstitutional. There are a couple of immediate warning signs. First, even the Washington Post account describes this as “a rarely enforced criminal statute.” In fact, searching for either the statute cited or its text, I could not find a single published court opinion arising from a prosecution under Va. Code § 18.2-423.01 in the two decades since its enactment. Second, the elected prosecutor specifically pledged, when he was running for office, to prosecute these defendants. James Hingeley, the commonwealth attorney for Albemarle County, was elected after pledging in 2019 to bring charges his predecessor wouldn’t: “There are so many people in our community . . . who were there on August 11 who were terrorized by torch-wielding terrorists. . . . There’s a law, a burning objects law, that says they can be prosecuted but our prosecutor’s not doing that.” Funny how the people who claim to be so scandalized by the “lock her up” chants keep running for office publicly promising to lock up particular people.

Terrorists? Look, these are not good people, but there was no violence at the Friday-night rally with the tiki torches. People involved in the following day’s violence have long since been charged, and appropriately so. Like the Nazis who marched at Skokie, Ill., in the 1970s, these were nasty racists peaceably demonstrating their racist ideas. That deserves public condemnation, but in a free country, it’s not a crime. In fact, our famous willingness to allow this sort of thing is a visible symbol of how free our country is even for people with deeply unpopular and antisocial ideas.

Sections 18.2-420 through 18.2-423.2 of the Virginia criminal code aim at a particular group of “Activities Tending to Cause Violence,” including wearing masks to conceal one’s identity, displaying swastikas and nooses, and burning crosses. There are important historical reasons for Virginia to want tools to prevent the Ku Klux Klan or similar organizations from terrorizing its citizens, and to treat cross-burning in particular as sending an intimidating message. But each of these bans also skates very close to the line of restricting the freedom of speech, and each can cross that line if it is allowed to sweep too broadly.

The courts have already recognized that danger. The cross-burning statute, Section 18.2-423, was challenged in Virginia v. Black (2003), which arose from two prosecutions. One was from a Klan rally at which a cross was burned. The rally was on private property (with the owner’s permission), but the cross-burning was visible from the road. The other involved two men who attempted to burn a cross in the yard of a black man, which obviously involved a much more direct and targeted form of intimidation. The Supreme Court concluded that a cross-burning ban was constitutional but placed decisive importance on the requirement of proving that the defendant had an “intent to intimidate”:

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. [Emphasis added.]

A plurality of the Court, however, struck down a portion of the statute that treated cross-burning by itself as prima facie evidence of an intent to intimidate:

The prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. [It] permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. . . . The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.

The Court thus threw out all charges against the defendant who burned the cross at the Klan rally, but remanded to allow the Supreme Court of Virginia to adopt a narrower reading of the statute that would permit the prosecution of the other two defendants. Justice O’Connor’s opinion for the plurality worried about prosecuting people simply for making a political statement, and she cited the Skokie case as one example:

As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, burning a cross at a political rally would almost certainly be protected expression. . . . Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott’s The Lady of the Lake. [Quotations and citations omitted.]

Three justices (Souter, Kennedy, and Ginsburg) would have gone further in this direction and struck down the entire Virginia law. The lack of a majority opinion was due mainly to Justices Scalia and Thomas disagreeing in different ways with the plurality on the extent to which the statute’s constitutionality could be saved by requiring separate proof at trial of intent to intimidate. Scalia argued that the problem with all three prosecutions was the jury instructions, and he would have given the Virginia courts another try at construing the statute in a way that might pass constitutional muster; Thomas argued for upholding the entire statute, contending that it already had adequate safeguards to ensure proof of intent to intimidate and that the history of cross-burnings, nationally and in Virginia, meant that burning a cross was “only conduct, not expression. . . . [J]ust as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.”

On remand, in Elliott v. Commonwealth (2004), the Virginia Supreme Court reinstated the convictions of the two men who tried to burn the cross on the black man’s lawn, concluding that the rest of the statute was constitutional if severed from the provision on treating all cross-burnings as proof of intent to intimidate.

The situation of the tiki-torch burners is clearly much more similar to that of the Klansman who burned a cross at a rally. Moreover, the crucial historical symbolism of a cross-burning — which carried so much weight for Justice Thomas — is absent here; there is no similar history with tiki torches. Outside of this one rally, it is hard to recall any instance of tiki torches being associated with anything but a pleasant evening outdoors. And the defendants can quite reasonably argue that they burned the torches because they would otherwise have been marching around in the dark.

The statute being used in this case, Section 18.2-423.01, defines two felonies: one against “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,” and one against “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.” The first prong of the statute deals with a targeted form of intimidating trespass on someone else’s property, but it would not apply here. The UVA campus, where the tiki-torch march took place, is public property. That means that prosecutors would need to show that the tiki torches were burned in “a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”

That’s ridiculous. This was a demonstration at night in the middle of an empty college campus in the summertime, and even with national media attention, it attracted as much mockery as anything else. The demonstrators chanted slogans that might be associated with violence — the sort of violence that erupted the next day when there were a huge number of counter-protesters — but a lot of bad ideas might be associated with violence. That is not the same as an imminent threat of violence.

Nobody who has watched the American justice system at work over the past few years could believe that peaceful left-wing protesters, even chanting the most virulent slogans, would be criminally charged for carrying torches at a rally. Section 18.2-419 of the Virginia criminal code, just a few sections away from this one, criminalizes “picketing before or about the residence or dwelling place of any individual,” and “assembl[ing] with another person or persons in a manner which disrupts or threatens to disrupt any individual’s right to tranquility in his home.” Where are the Virginia prosecutions under this statute of people who protested for weeks at the homes of Supreme Court justices for the precise purpose of disrupting the tranquility of their homes? Fairfax County officials rebuffed Glenn Youngkin’s requests to do something about the protests, and the marshal of the Court later had to beg state officials to act. Even protesters who interrupted arguments inside the Court got mere probation.

This is not equal justice under law, and Americans are right to notice.