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Combating Hate Without Hate Crimes: The Hanging Effigies of the 2008 Presidential Campaign

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Abstract

In this Note, effigies hung during the 2008 Presidential campaign are examined in detail to determine the most effective way to prohibit this undesirable conduct. The analysis commences with a detailed description of the various effigies reported to the public media and whether or not the individuals who displayed their respective effigy were prosecuted. Next the Note characterizes the statutes of the states where effigies were hung and analyzes whether individuals could have been prosecuted under federal or the various state hate crime statutes. In the end a review of the reported effigies during the Presidential campaign of 2008 and the various hate crime reporting statutes suggests that the most effective way to deter such conduct is to provide for more expansive hate crime incident reporting statutes rather than more substantive hate crime statutes criminalizing the hanging of effigies.

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Notes

  1. The first incident of a President or President-Elect being hung in effigy may never be ascertained due to the lack of records of such in the early part of America’s history. But persons have been hung in effigy throughout America’s history. One early example is that of Andrew Oliver, the English secretary of the Province of Massachusetts who whose likeness was hung in effigy in 1765 on the streets of Boston in reaction to Parliament’s Passage of the Stamp Act. See Adams and Adams [5, pp. 61–73]. For a discussion of the first recorded hanging in the United States see Teeters and Hedblom [102, pp. 7–10].

  2. The Southern Poverty Law Center, is a non-profit organization in Montgomery, Alabama devoted to combating hate and teaching tolerance. The Intelligence Project is just one of the many ways that the organization is actively fighting hate.

  3. At the time of the incident 17 scholars were enrolled at the university under the “Act Six” scholarship. The university had an enrollment of 3,355 students during the fall semester of 2008. “This fall, 25 percent of the 390 freshmen are students of color, up from 16 percent in 2005.” See Pardington [87, pp. A1].

  4. On Oct. 30, the Iowan, Waterloo-Cedar Falls Courier, reported that a scarecrow hanging from a tree by it’s neck as a Halloween decoration was taken down after the homeowners received a series of complaints. In addition to the hanging scarecrow, the residents had ghosts flying on wires throughout the yard and a skeleton climbing through the grass. It’s unclear when the decorations were initially put up, but they were removed on Tuesday, October, 28, the same day the effigy of V.P. candidate, Sarah Palin, was reported.

  5. Sarah Palin’s effigy consisted of a "mannequin sporting a beehive hairdo, glasses and a red coat.”

  6. The effigy consisted of a Barack Obama Halloween mask, a sports coat and sweat pants.

  7. A noose was hung from a tree at Baylor University in Texas on Election Day. The University President issued a statement denouncing the event, yet, no one was ever charged with any crime [17]. By Nov. 13 it was reported that the alleged noose was actually a failed attempt at a swing. The students involved in the incident attended a unity March and explained themselves to the university. See Ortego [85], Simpson [94] and [16]

    Three incidents involving nooses were also reported as being found on Mount Desert Island, Maine. The Southern Poverty Law Center suggests that such incidents were motivated by hate and lists them as hate incidents in their Intelligence Report. The facts of the cases as seen through local newspapers, however, do not support such a conclusive finding. The incidents involved black figures roughly two feet tall hanging by the neck at the intersection of three public highways. The figures reportedly resembled “gingerbread men” and the persons who displayed the figures were never caught. See also [98], Trotter [104, p. 3], and Trotter [105, p. 5].

  8. Allegedly a sign was hung outside of a general store in Portland, Maine, possibly including a hanging effigy of Obama. But when law enforcement investigated nothing was found. See Richardson [92].

  9. “The activities protected include: (1) attending a public school, (2) receiving a benefit or using a facility administered by the State, (3) applying for employment, (4) serving as a juror, (5) using a common carrier for transportation, and (6) staying at a hotel or eating at a restaurant.” See DiPompeo [23, p. 617, 627 n. 48].

  10. This question is posed by the authors.

  11. Note that sexism, sexuality, and ageism are all not included as types of prejudice in the Civil Rights Act of 1968.

  12. See Barger [14, p. 265 n. 14]. Barger cites 20 states with cross burning prohibitions plus the District of Columbia in 2008. The states were as follows: (1) Alabama [8]; (2) Arizona [13]; (3) California [20]; (4) Connecticut [21]; (5) Delaware [22]; (6) District of Columbia [24]; (7) Florida [31]; (8) Georgia [33]; (9) Idaho [38]; (10) Illinois [40]; (11) Louisiana [59]; (12) Missouri [62]; (13) Montana [63]; (14) New York [78]; (15) North Carolina [80]; (16) Oklahoma [82]; (17) South Carolina [95]; (18) South Dakota [96]; (19) Vermont [107]; (20) Virginia [109]; (21) Washington [112]. See also [7] which provides a comprehensive list of states with anti clan provisions as of July 2005.

  13. See Barger [14, p. 265 n. 49] Barger cites 4 jurisdictions which explicitly imposed criminal punishment for displays of Nazi Swastikas these states included the following: (1) California [20]; (2) District of Columbia [24]; (3) New York [78]; (4) Washington [112].

  14. This is the same statute which criminalizes the burning of a cross and display of a Nazi swastika.

  15. In New York, a class e is the lowest level felony carrying a maximum sentence of four years. See [59]. Fines are discussed in N.Y. Penal Law §80.00 [60]. Examples of other class e felonies in New York include the following: Reckless Assault of a child by a child day care provider [67]; Vehicular assault in the second degree [68]; Promoting a suicide attempt [69]; Criminally negligent homicide [70]; Abortion in the second degree [71]; Rape in the third degree [72]; Criminal sexual act in the third degree [73]; Unlawful imprisonment in the first degree [74]; Arson in the fourth degree [75]; Patronizing a prostitute in the second degree [76]; and Insurance fraud in the fourth degree [77].

  16. See (1, 2) California [20] (Palin effigy and Redondo Beach “soccer-mom”); (3) Idaho [38] (Obama sign and noose); (4) Virginia [109] (Obama effigy close to polling place); (5) Washington [112] (Obama effigy hanging in high school).

    States also recognize two other general substantive crimes motivated by prejudice against a certain group of individuals. First, intentionally tampering or interfering with private property without authorization or public property; and/or intentionally subjecting another to physical contact; and/or intentional intimidation through words or conduct. See (1) California [18]; (2) Idaho [38]; (3) Washington [112]; (4) Oregon [83] (Conduct committed by one individual is a class a misdemeanor, by two or more is a class c felony); (5) Indiana [41] (Indiana makes it an offense to vandalize a school or place of worship). Second, similar to the Civil Rights Act of 1968 intentionally depriving a victim of their state recognized civil or constitutional rights. Iowa specifically criminalizes the deprivation of state recognized civil rights to victims based on prejudice. See Iowa [43].

  17. Such conduct is punishable up to no more than five years in state prison or a fine not exceeding $5,000 or both.

  18. A class 6 felony in Virginia carries with it a punishment of 1–5 years in a county jail and/or a fine of $2,500 or both. See Virginia [109].

  19. Malicious harassment is a class c felony in Washington; carrying a maximum of five years in a state prison and/or a $10,000 fine. See Washington [111].

  20. Indiana has no specific hate crime legislation but does recognize “institutional vandalism”, a substantive crime, presumably covering the acts committed on school grounds. See Indiana [41].

  21. See Kentucky [49]. Under disorderly conduct in the second degree [47] the grand jury could have found the young men created “a hazardous or physically offensive condition by an act that serves no legitimate purpose.” Disorderly conduct is a class b misdemeanor carrying a sentence of less than 90 days [48] and a fine not exceeding $250 [50].

  22. Justice Scalia was joined by four members of the court, (1) Justice Kennedy, (2) Justice Souter, (3) Justice Thomas and Chief Justice Rehnquist. Justice White wrote a concurring opinion joined by Justices Blackmun and O’Connor and in part by Justice Stevens. Justice Blackmun also wrote a separate concurring opinion and Justice Stevens wrote a separate concurring opinion joined by Justice White and in part by Justice Blackmun. See [90, p. 377].

  23. States also have mandatory reporting statutes, but all offenses appear to be sent to the Attorney General for a holistic compilation. Indiana and Ohio are the only states which do not have statutes mandating the reporting of hate crimes. Despite this absence they still appear to report to the federal government the criminal offenses associated with hate within their respective states. See [30]

    All of the states that have substantive hate crimes laws also have mandated hate crime reporting statutes. The following are those states that have statutes criminalizing cross burning: (1) California [19]; (2) Idaho [39]; (3) Virginia [108]; (4) Washington [113]. The following are those states with general substantive hate crime statutes: (1) Oregon [84]; (2) Iowa [42]. Kentucky is the only state which just has a hate crime sentence enhancing statute: (1) Kentucky [46].

  24. The eleven hate crimes reported include: (1) Murder and non-negligent manslaughter; (2) forcible rape; (3) aggravated assault; (4) simple assault; (5) intimidation (crimes against persons); (6) robbery; (7) burglary; (8) larceny-theft; (9) motor vehicle theft; (10) arson; and (11) destruction/damage/vandalism (crimes against property). See [29].

  25. Since 1997 “persons with disabilities” have also been included as a group. See [26].

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    Mark Rouse

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Rouse, M. Combating Hate Without Hate Crimes: The Hanging Effigies of the 2008 Presidential Campaign. Int J Semiot Law 25, 225–247 (2012). https://doi.org/10.1007/s11196-010-9189-2

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