The Hangman's noose and the lynch mob: Hate speech and the jena six

Harvard Civil Rights-Civil Liberties Law Review

Volumn 44, Issue 2, 2009, Pages 329-359

  Bell, Jeannine ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 70049106101     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (269)

1. Susan Roesgen & Eliott C. McLaughlin, Residents: Nooses Spark School Violence, Divide Town, CNN.com, Sept. 5, 2007, http://www.cnn.com/2007AJS/law/ 09/04/bell.jena.six/index.html.
2. Craig Franklin, Media Myths About the Jena 6: A Local Journalist Tells the Story You Haven't Heard, CHRISTIAN SCI. MONITOR, Oct. 24, 2007, at 2, available at http://www.csmonitor.com/2007/1024/p09s01-coop.html.
3. Roesgen & McLaughlin, supra note 1; Pierre Tristam, Lynching for Want of Seat in the Shade, Daytona Beach News-J., Aug. 28, 2007, at 5A.
4. Some dispute exists regarding whether this was, as widely reported, a "white tree." Compare Tristam, supra note 3 (claiming the shade provided by the tree on the Jena High School campus belonged only to White students), with Franklin, supra note 2 (insisting that students of all races sat beneath the tree).
5. All Things Considered: Beating Charges Split La. Town Along Racial Lines (NPR radio broadcast July 30, 2007), available at http://www.npr.org/templates/ story/story.php?storyid=12353776 [hereinafter All Things Considered].
6. This was the punishment reported by a Jena reporter and husband of a Jena High teacher in Franklin, supra note 2.
7. Id.
8. Id.
9. Brief for Petitioner, Appendix C, R.A.V. v. St. Paul, 505 U.S. 377 (1992) (No.90-7675), 1991 WL 11003958.
10. Craig Franklin, DA/School Officials Grant Exclusive Interviews, JENA TIMES, Oct. 3, 2007, http://www.amren.com/mtnews/archives/2007/10/daschool- offici.php (LPSB Child Welfare Supervisor Melinda Edwards, describing conversation with students who hung the nooses at their high school in Jena, Louisiana on August 31, 2006).
11. See JESSIE DANIEL AMES, THE CHANGING CHARACTER OF LYNCHING 22 (1942);
12. Robert L. Zangrando, The NAACP Crusade Against Lynching, 1909-1950, at 3 (1980). Congressional anti-lynching legislation proposed in the 1930s defined lynching as: Any assemblage of three or more persons which shall exercise or attempt to exercise by physical violence and without authority of law any power of correction or punishment over any citizen or citizens or other person or persons in the custody of any peace officer or suspected of, charged with, or convicted of the commission of any offense, with the purpose or consequence of preventing the apprehension or trial or punishment by law of such citizen or citizens, person or persons, shall constitute a "mob" within the meaning of this act. Any such violence by a mob which results in the death or maiming of the victim or victims thereof shall constitute "lynching" within the meaning of this Act. Ames, supra, at 22 (citation omitted).
13. Zangrando, supra note 11, at 3.
14. Id. at 9.
15. Id. at 4.
16. Id. As Zangrando notes, these numbers do not capture all the individuals who were lynched, as they only represent recorded lynchings.
17. AMES, supra note 11, at 17.
18. Historians indicate that what we call the Ku Klux Klan has had three separate incarna. The Reconstruction-era Klan began in 1865, the second began in the 1920s after World War I, and the third began after World War II. See Michael Lewis & Jacqueline Serbu, Kommemorating the Ku Klux Klan, 40 Soc. Q. 139, 139 (1999).
19. Id. at 141-142.
20. Id. at 148 (citation omitted).
21. MORRIS DEES WITH STEVE FIFFER, A SEASON FOR JUSTICE: THE LIFE AND TIMES OF CIVIL RIGHTS LAWYER MORRIS DEES 212 (1991) (emphasis added).
22. SEE WALTER WHITE, ROPE AND FAGGOT 152-170 (1969).
23. LEON F. LITWACK, TROUBLE IN MIND: BLACK SOUTHERNERS IN THE AGE OF JIM CROW 290 (1998).
24. Id.
25. Lu-in Wang, The Complexities of "Hate," 60 Ohio St. L.J. 799, 836 (1999).
26. The last lynching attributed to the Ku Klux Klan was the March 1981 abduction and murder of Michael Donald in Mobile, Alabama. See Dees, supra note 20, at 211-213 (description of events surrounding Donald's death).
27. Sana Siwolop, Noose, Symbols of Race Hatred, at Center of Workplace Suits, N.Y. Times, July 10, 2000, at A1. EEOC cases represent only a small fraction of the employment cases filed privately each year.
28. Id.
29. Id.
30. Id. (quoting Ida L. Castro, chairwoman of the EEOC).
31. Id.
32. See, e.g., Williams v. N.Y. City Hous. Auth., 154 F. Supp. 2d. 820, 821 (S.D.N.Y. 2001) (noose hanging on wall of supervisor's office when Black plaintiff entered).
33. See, e.g., Vance v. S. Bell & Tel. Co., 863 F.2d 1503,1506 (11th Cir. 1989) (two nooses hung by employee's workstation)
34. Henderson V. Int'l Union, 263 F. Supp. 2d 1245, 1250 (D. Kan. 2003) (tubing in the shape of a noose found near an African American's workstation).
35. See, e.g., Allen v. Mich. Dep't of Corr., 165 F.3d 405, 408 (6th Cir. 1999) (picture of a stick figure hung at the end of a noose);
36. Little v. Nat'l Broad. Corp., 210 F. Supp. 2d 330, 355, 359 (S.D.N.Y. 2002) (noose hanging on the wall in studio with African American coworker's name taped to it);
37. Carson v. Giant Food, Inc., 187 F. Supp. 2d 462, 474 (D. Md. 2002) (multiple nooses displayed in warehouse where plaintiff worked).
38. See, e.g., Henderson v. OS Rest. Serv., No.l:06-cv-0896, 2008 U.S. Dist. LEXIS 5435, at *5 (S.D. Ind. Jan. 24, 2008) (restaurant);
39. Rosemond v. Stop & Shop Supermarket, 456 F. Supp. 2d 204, 206 (D. Mass. 2008) (grocery store);
40. Williams v. Asplundh Tree Expert Co., No.3:05-cv-479-J-33MCR, 2006 U.S. Dist. LEXIS 52197, at *7 (M.D. Fla. July 27, 2006) (landscaping company).
41. See, e.g., Carson, 187 F. Supp. 2d at 474 (multiple nooses displayed in warehouse).
42. See, e.g., EEOC v. Crowder Constr., No.3:00-CV-186, 2001 WL 1750843, at *5 (W.D.N.C. Oct. 26, 2001) (noose display and racial slurs in construction company).
43. See, e.g., Burns v. Winroc Corp., 565 F. Supp. 2d. 1056, 1061 (D. Minn. 2008) (trucking company).
44. See, e.g., Allen, 165 F.3d at 408 (noose drawing and racially derogatory language);
45. West v. Phila. Elec. Co., 45 F.3d 744, 750-752 (3d Cir. 1995) (noose, racially offensive black dolls, and racially derogatory bulletin board posting);
46. Burns, 565 F. Supp. 2d at 1064 (noose display and racially hostile comments, including (1) a "fetch, boy" comment; (2) racist jokes; and (3) multiple uses of the word "nigger");
47. Carson, 187 F. Supp. 2d at 474 (multiple nooses displayed as well as racist graffiti and statements);
48. Crowder Constr., 2001 WL 1750843, at *5 (noose display and racial slurs);
49. Jackson v. Del. River & Bay Auth., No.99-3185, 2001 WL 1689880, at *5 (D.N.J. Nov. 26, 2001) (noose coupled with racially offensive photographs).
50. Crowder Constr., 2001 WL 1750843, at *5 (quotation omitted).
51. Jackson v. T & N Van Serv., 117 F. Supp. 2d 457, 460 (E.D. Pa. 2000).
52. Id.
53. Mark Potok, Luke Visconti, Barbara Frankel & Nigel Holmes, The Geography of Hate, N.Y. Times, Nov. 25, 2007, at WK11.
54. Marisol Bello, 'Jena 6' Case in La. Spurs Copycats, USA Today, Oct. 10, 2007, at 3A.
55. See Diversitylnc Noose Watch, http://www.diversityinc.com/public/ noosesightings/noose.cfm (last visited Mar. 24, 2009).
56. 44 See Jeannine Bell, Catalog of Copycat Incidents, Oct. 31, 2008 (unpublished document on file with author).
57. Four incidents fall into the miscellaneous category: perpetrated as a generalized threat (two incidents) and hung as a punishment (two incidents).
58. October 24, 2007: Terre Haute, Indiana (nooses found on the Indiana State University campus); September 28, 2007: Hempstead, New York (nooses found hanging in the men's bathroom of the Village Police Department).
59. See Catalog, supra note 44, at 12, 5.
60. August 24, 2007: Germantown, Tennessee (employees at the Germantown Performing Arts Center hang nooses backstage as practical jokes).
61. See id. at 1.
62. September 25, 2007: Watchung, New Jersey (holidays store with the Halloween display that features stuffed doll hanging from a noose); October 26, 2007: Muncie, Indiana (sanitation worker hangs a noose from his truck as Halloween decoration).
63. See id. at 4, 13.
64. Katharine Kersten, Op-Ed., Noose Outcry in the Campus Hall of Shame, Minneapolis Star Trib., Nov. 19, 2007, at 1B.
65. Local Verizon Worker Says She's Target of Racial Threat, WPXI.com, Oct. 4, 2007, http://www.wpxi.com/news/14267276/detail.html.
66. This map is based on the image at http://www.diversityinc.com/public/ noosesightings/noose.cfm.
67. See, e.g., Crawley v. Ohio, No.02-1069, 2006 U.S. Dist. LEXIS 80919, at *14-15 (S.D. Ohio Nov. 6, 2006) (discussing perpetrator's admission that he does not like Black people and placed noose on anniversary of the Emancipation Proclamation);
68. Lake v. AK Steel Corp., No.2:03cv517, 2006 U.S. Dist. LEXIS 25118, at *92 (W.D. Pa. Apr. 27, 2006) (noting that supervisor admits to bigotry);
69. Hardman v. AutoZone, Inc., No.02-2291, 2004 U.S. Dist. LEXIS 2171, at *3-6 (D. Kan. Feb. 11, 2004) (noting that supervisor admits to being racist).
70. 2006 U.S. Dist. LEXIS 25118.
71. 54 Id. at *44.
72. There is a third explanation that involves perpetrators who may have been aware of the connotations of the noose, but nevertheless felt compelled to place one for a non-racial reason. The perpetrator admits having some comprehension of the noose's history but claims that in this particular instance the hangman's noose is used in a non-racial manner. An example of such a case involved Gabriel Keith, a journalist who served as news editor for the campus paper of the Minneapolis Community and Technical College. He made a mock noose from his sweatshirt drawstring and hung it from the ceiling of the college newsroom for a few minutes. He added a note about the hazards of missed deadlines. When asked about why he had hung the noose, Keith indicated that it was a message to the student reporters about missing deadlines. See Kersten, supra note 49.
73. Franklin, supra note 2, at 9.
74. Id.
75. Id.
76. 263 F. Supp. 2d 1245, 1250 (D. Kan. 2003).
77. Id.
78. Id.
79. Id.
80. Id.
81. Id.
82. Id.
83. Maureen Sieh, Fire Trainee Creates Uproar with Noose, Syracuse Post-Standard, Feb. 24, 2008, at Bl.
84. Id.
85. Id.
86. Id.
87. Id.
88. The publicity surrounding the display of nooses at Columbia Teachers College and on a Coast Guard cutter may have led President Bush to denounce them. In a ceremony in the East Room of the White House commemorating Black History Month, Bush noted: "Displaying [a noose] is not a harmless prank. And 'lynching' is not a word to be mentioned in jest." Steven Lee Meyers, Bush, at Commemoration, Says Nooses Are Symbol of 'Gross Injustice,' N.Y. Times, Feb. 13, 2008, at A18.
89. See, e.g., EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1257 (11th Cir. 2003) ("jokes" played by workers include fashioning a noose);
90. Ford v. West, 222 F.3d 767, 771 (10th Cir. 2000) (noose hung as practical joke);
91. Burns v. Winroc Corp., 565 F. Supp. 2d 1056, 1061 (D. Minn. 2008) (perpetrator claimed noose was a joke);
92. Lewis v. Penske Logistics, L.L.P., No.2:04-cv-1011-WKW, 2007 U.S. Dist. LEXIS 54548, at *21 (M.D. Ala. July 26, 2007) (noose as Halloween prank);
93. Rosemond v. Stop & Shop Supermarket Co., 456 F. Supp. 2d 204, 209 (D. Mass. 2006) (noose hung as a joke);
94. Faulkner v. Niagara Mohawk Power Corp., No.1:05-cv-0974, 2006 U.S. Dist. LEXIS 80670, at *3 (N.D.N.Y. Nov. 3, 2006) (noose as a joke directed at a White male);
95. Hardman v. Autozone, Inc., No. 02-2291-KHV, 2004 U.S. Dist. LEXIS 2171, at *4 (D. Kan. Feb. 11, 2004) (noose placed by worker's mailbox as a prank).
96. See, e.g., Newton v. Dep't of the Air Force, 85 F.3d 595, 597 (Fed. Cir. 1996) (appellant claimed burning cross displayed in African American coworker's work area was a joke);
97. Police Officers for Equal Rights v. Columbus, 644 F. Supp. 393, 402 (S.D. Ohio 1985) (wearing of white sheets and burning of cross as a joke);
98. Allstate Ins. Co. v. Browning, 598 F. Supp. 421, 423 (D. Or. 1983) (cross burner alleged action was prank);
99. United States v. Hooper, 4 M.J. 830, 831 (A.F.C.M.R. 1978) (cross burned on military base as joke);
100. In re Steven S., 25 Cal. App. 4th 598, 605 (Cal. Ct. App. 1994) (cross burned as a Friday the 13th joke);
101. Garrison v. Conklin, No. 234243, 2003 Mich. App. LEXIS 337, at *5 (Mich. Ct. App. Feb. 14, 2003) (cross burning alleged as part of a Halloween prank).
102. For a discussion of crosses burned as jokes, see Jeannine Bell, O Say, Can You See: Free Expression by the Light of Fiery Crosses, 39 Harv. C.R.-C.L. Rev. 335 (2004).
103. Jake Wagman, Noose's Revival Is Raising the Issue of Intent, St. Louis Post-Dispatch, Jan. 18, 2008, at Al.
104. Kitty Caparella, Feds Not Amused by Noose 'Joke', Phila. Daily News, Sept. 4, 2008, at 8.
105. Id.
106. See Potok et al., supra note 41, at WK11 (describing two incidents, one involving a sanitation worker who hung a noose from his truck as a Halloween decoration, and the second involving a holiday store with a Halloween display featuring a stuffed doll resembling a Black man hanging from a noose);
107. see also Paul Vitello, This halloween, Man in Noose Wins a Reprieve, N.Y. TIMES, Oct. 27, 2007, at B1 (describing conflict over Halloween decorations).
108. Caparella, supra note 75.
109. Id.
110. Id.
111. 538 U.S. 343 (2003).
112. See id. at 351-352 (discussing Black v. Commonwealth, 553 S.E.2d 738 (Va. 2001)).
113. Va. Code Ann. § 18.2-423 (2004).
114. Black, 538 U.S. at 363.
115. Id. at 352-357.
116. Id. at 357.
117. Id. at 360, 365-366.
118. Justice O'Connor gave the following examples as cross burning not used to intimidate: cross burning used (1) as a statement of ideology; (2) to show group solidarity, such as a Klan rally; or (3) as theatre, expressing neither ideology nor intimidation (i.e., in movies or plays). Id. at 365-366.
119. Id.
120. Id. at 366-367
121. Id. at 367.
122. 92 See, e.g., Dean Bohn, "Alarming" Vestige of Racism Turning up on Campuses, Saginaw News (Mich.), Nov. 17, 2007, at 8A (quoting Director of Department of Civil Rights, who maintained nooses were "an undeniably clear symbol of racial intolerance to the absolute extreme");
123. John Ehinger & David Person, Editorial, Smoking Under Siege, Huntsville Times (Ala.), Nov. 17, 2007, at 11A (describing the noose as a symbol of lynching and racial hatred that does not have another meaning);
124. Lolis Eric Elie, Symbol of Hate Still in the News, New Orleans Times Picayune, Nov. 26, 2007, at 11A (describing nooses as a symbol of hate that conjures up images of extrajudicial justice)
125. Op-Ed., A Noose is Found at a South Florida High School, S. Fla. Sun-Sentinel, Mar. 3, 2008, at 30A (describing the history of the noose as involving mutilated bodies).
126. Sieh, supra note 66.
127. See, e.g., Darryl Fears, Editorial, In Jena and Beyond, Nooses Return as a Symbol of Hate, Wash. Post, Oct. 20, 2007, at Al (describing the thousands of Black people killed during years of widespread lynching);
128. Vitello, supra note 77 (offering estimates of the number of people lynched in the United States between the end of the Civil War and the end of World War II).
129. See, e.g., Fears, supra note 94 (quoting a magazine published by the Southern Poverty Law Center, and Hilary O. Shelton, Director of the NAACP's Washington Bureau).
130. Press Release, Commission on Security & Cooperation in Europe, Cardin Leads Briefing on the Rise of Hate Crimes in Cyberspace (May 15, 2008), 2008 WLNR 9286273.
131. Sid Cassese, 'Ultimate Symbol of Disgust'; Hempstead Deputy Chief Says Noose Found in Department Locker Room is Deeply Hurtful, but Vows Not to be Intimidated by Incident, Newsday, Oct. 1, 2007, at A7
132. For similar associations made by public officials, see Press Release, U.S. Dep't of Justice, Remarks as Delivered by Attorney General Michael B. Mukasey at the Martin Luther King, Jr. Day Prayer Breakfast (Jan. 19, 2008), available at http://www.usdoj.gov/archive/ag/speeches/2008/ag-speech-080119. html.
133. See, e.g., Kevin Deutsch, Anti-Semitic Incidents Drop for Second Year, Palm Beach Post, Mar. 6, 2008, at 3B;
134. Editorial, Racism's Ugly Grip Still Haunts Us, InsideBayArea.com (Cal.), Sept. 23, 2007, available at http://findarticles.eom/p/articles/mi-qn4176/is- 20070923/ai-n20520432;
135. Editorial, Vandalism at Parkland Synagogue Repulsive to Entire Community, S. Fla. Sun-Sentinel, May 3, 2008, at Commentary;
136. Foxman and Sharpton Issue Joint Statement on Symbols of Hate, U.S. Newswire, Nov. 1, 2007, at Business Editors;
137. David Ovalle, Miami Police Investigate Noose Finding, MIAMI HERALD, Jan. 17, 2008, at B5;
138. Andrew Stephen, The Deep South, the White Tree, the Noose, New Statesman, Oct. 25, 2007, at 26;
139. Michael Weiss, Free the Jena 6?, Slate, Sept. 21, 2007, http://www.slate.com/id/2174569;
140. The Montel Williams Show: Race on Trial: The Jena 6 (CBS television broadcast Oct. 2, 2007);
141. The O'Reilly Factor: Interview with Jesse Jackson (Fox News Network television broadcast Sept. 27, 2007)
142. See, e.g., All Things Considered, supra note 5 (describing racial split in feelings about the Jena Six incident);
143. Tristam, supra note 3 (contrasting school administrators who saw the noose as a harmless prank with Blacks who saw nooses as a provocation "brass knuckled in not-so-distant history");
144. Vitello, supra note 77 (describing White confusion at Black fear of Halloween decorations depicting a hanging).
145. See, e.g., Carter v. New Venture Gear, Inc., No.5:00-cv-1744, 2007 U.S. Dist. LEXIS 71695, at *20-21 (N.D.N.Y. Sept. 26, 2007) (noose directed at White employee).
146. See, e.g., Hollins v. Delta Airlines, 238 F.3d 1255, 1257 (10th Cir. 2001) (adjudicating complaint by Black workers regarding White workers' noose jokes and mock hangings);
147. Ford v. West, 222 F.3d 767, 772 (10th Cir. 2000) (reviewing allegation by Black worker that White worker's noose joke is racial harassment);
148. Fears, supra note 94 (describing Errol Madyun, a Black ironworker who characterized finding a noose intimidating while supervisor said noose was just a joke).
149. Tony Norman, Nooses Are All the Rage, Pittsburgh Post-Gazette, Oct. 23, 2007, at A2.
150. Id.
151. See, e.g., Bums v. Winroc Corp., 565 F. Supp. 2d 1056 (D. Minn. 2008);
152. Williams v. Asplundh Tree Expert Co., No.3:05-cv-479-J-33MCR, 2006 U.S. Dist. LEXIS 52197, at *6-7 (M.D. Fla. July 27, 2006);
153. Golston v. Am. Airlines, Inc., No.Civ.A. 402CV713Y, 2004 WL 1969842 (N.D. Tex. Sept. 7, 2004).
154. 565 F. Supp. 2d 1056.
155. Id. at 1059-61, 1064. One incident that the decision reports involved a White employee throwing a telephone and telling the Black worker to "fetch, boy."
156. Id. at 1059.
157. Id. at 1060.
158. Id. at 1061.
159. Id.
160. In 2007, law enforcement agencies around the country reported 3121 hate crimes directed at racial and ethnic minorities.
161. See. U.S. Federal Bureau of Investigation, Hate Crime Statistics tbl.l (2007) http://www.fbi.gov/ucr/hc2007/table-01.htm. Because of the way the data is reported, this statistic does not include hate crimes that were classified as anti-Hispanic; if included, these incidents would amount to an additional 595 hate crimes in 2007.
162. See id.
163. Williams v. N.Y. City Hous. Auth., 154 F. Supp. 2d 820, 825 (S.D.N.Y. 2001) (citation omitted).
164. Jack McDevitt, Jennifer Balboni, Luis Garcia & Joann Gu, Consequences for Victims: A Comparison of Bias- and Non-Bias-Motivated Assaults, 45 Am. Behav. Sci. 697, 699 (2001).
165. See, e.g., Mari Matsuda, The Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2336 (1989).
166. McDevitt et. al., supra note 112, at 711.
167. 115 See, e.g., Howard J. Ehrlich, Barbara E.K. Larcom & Robert D. Purvis, The Traumatic Impact of Ethnoviolence, in The Price We Pay: The Case Against Racist Speech, Hate Propagand́a, and Pornography 63, 66 (Laura Lederer & Richard Delgado eds., 1995) (describing the behavioral alterations made by victims of ethnoviolence);
168. Lu-in Wang, The Transforming Power of "Hate": Social Cognition Theory and the Harms of Bias-Related Crime, 71 S. Cal. L. Rev. 47, 120-124 (1997) (describing schedule alterations made by racial and ethnic minority group members).
169. L. Camille Hebert, Analogizing Race and Sex in Workplace Harassment Claims, 58 Ohio St. L.J. 819, 880 (1997) (expressing the hope that insights from racially hostile workplaces "may help decisionmakers to realize that a single incident of sexually offensive and degrading behavior, such as the touching of a woman on her breast or genitals against her will even a single time, can irreversibly alter her work environment").
170. Frederick M. Lawrence, The Punishment of Hate: Toward a Normative Theory of Bias- Motivated Crime, 93 Mich. L. Rev. 320, 345-346 (1994).
171. Vitello, supra note 77.
172. Id.
173. Id.
174. Id.
175. Brian Tucker, Noose Flap Displays Loose Tlinking, Crain's Cleveland Bus., Jan. 28, 2008, at 8. After uproar over her comments, the Golf Channel suspended Tilghman for ten days.
176. Id.
177. Jill Painter, Tilghman off Course on Woods, Daily News of L.A., Jan. 9, 2008, at C2.
178. Id.
179. Larry Dorman, Woods Calls Anchor's Racial Remarks 'Unfortunate,' N.Y. Times, Jan. 22, 2008, at D7.
180. Elliot McGlaughlin, Tiger OK with 'Lynch' Remark but Sharpton Ready for Battle, CNN.com, Jan. 10, 2008, http://www.cnn.com/2008/US/01/10/tilghman.woods.
181. Associated Press, Sports Briefing: Golf; TV Anchor Suspended, N.Y. Times, Jan. 10, 2008, at D4.
182. Bill Higgins, Golfweek Magazine Appoints New Editor, Cape Cod Times (Hyannis, Mass.), Jan. 19, 2008, at Bus. & Fin. News.
183. Id.
184. Id.
185. The O'Reilly Factor: Interview with Jesse Jackson (Fox News Network television broadcast Sept. 27, 2007).
186. Id.
187. Id.
188. Id.
189. Id.
190. See Matsuda, supra note 113, at 2327.
191. Id.
192. Editorial, Racism's Ugly Grip Still Haunts Us, supra note 98.
193. See Matsuda, supra note 113, at 2327;
194. Matthew Solis et al., Jena Six Events Reveal Racial Inequality in U.S. Criminal Justice System, 15.1 Hum. Rts. Brief 30 (2007).
195. Fears, supra note 94.
196. Id.
197. see also Burns v. Winroc Corp., 565 F. Supp. 2d 1056 (D. Minn. 2008). In Burns, a Black employee was told: "I took it down. It's no big deal no more. It's over, you know."
198. Id. at 1061.
199. Matsuda, supra note 113, at 2327.
200. Id.
201. Id.
202. 42 U.S.C. § 2000e (2006). Under Title VII, employers may not: (1) fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify... employees or applicants... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
203. 42 U.S.C. § 2000e-2(a).
204. See Allen v. Mich. Dep't of Corr., 165 F.3d 405,411 6th Cir. 1999)(noting that noose drawing was perhaps plaintiff s most disturbing evidence of racial harassment);
205. Little v. Nat'l Broad. Co., 210 F. Supp. 2d 330, 391 (S.D.N.Y. 2002) (stating that "the hangman's noose ra potent and threatening symbol" for Blacks (quoting Williams v. New York City Hous. Auth., 154 F. Supp. 2d 820, 826 (S.D.N.Y. 2001)));
206. Williams, 154 F. Supp. 2d at 824.
207. This same issue was present in the Jena incident. There, school officials maintained that the nooses were found hanging in the early morning and were removed soon afterward.
208. See Franklin, supra note 10. Thus, the nooses were only hanging from the tree for a short period of time and may have been removed before few, if any, Black students saw them. In such a circumstance, the question becomes whether the nooses still caused harm if their intended victims did not observe them firsthand.
209. See, e.g., Henderson v. Int'l Union, 263 F. Supp. 2d 1245, 1277 (D. Kan. 2003).
210. No.91-2719, 1993 WL 17607, at *3 (E.D. La. Jan. 19, 1993).
211. See id. at *4.
212. See Jerome R. Watson & Richard W. Warren, "I Heard It Through the Grapevine": Evidentiary Challenges in Racially Hostile Work Environment Litigation, 19 Lab. Law. 381, 389 (2004).
213. See, e.g., Henderson, 263 F. Supp. 2d at 1277.
214. See Jackson v. T & N Van Serv., 86 F. Supp. 2d 497, 503 (E.D. Pa. 2000) (holding that company could only be vicariously liable for incidents it knew or should have known about, and failed to promptly correct, when none of the coworkers involved were employee's supervisors).
215. See Russell v. Am. Eagle Airlines, Inc., 46 F. Supp. 2d 1330 (S.D. Fla. 1999).
216. See Motley v. Tractor Supply Co., 32 F. Supp. 2d 1026 (S.D. Ind. 1998).
217. Act Effective July 1, 2008, 2008 La. Acts 643 (codified at La. Rev. Stat. Ann. § 14:40.5 (2008));
218. Act of May 7, 2008, 2008 N.Y. Laws 74 (codified at N.Y. Penal Law § 240.31 (Consol. 2009));
219. Act of Aug. 8, 2008, 2008 N.C. Sess. Laws 197, § 1-3 (codified at N.C. Gen. Stat. § 14-12.12-14-12.14 (2009)).
220. See John Gramlich, Noose Displays Provoke New State Penalties, Weekly Stories, Stateline.org, June 6, 2008, at 10, available at http://archive. stateline.org/weekly/Stateline.org-Weekly-Original-Content-2008-06-02.pdf.
221. La. Rev. Stat. Ann. § 14:40.5;
222. N.Y. Penal Law § 240.31;
223. N.C. Gen. Stat. § 14-12.12-14-12.14.
224. See, e.g., Ala. Code § 13A-6-25(a) (2008);
225. Alaska Stat. § 11.41.530 (2008);
226. Ark. Code Ann. § 5-13-208 (2008);
227. Conn. Gen. Stat. Ann. § 53a-192 (West 2008);
228. Del. Code Ann. tit. 11, § 791 (2008)
229. Ky. Rev. Stat. Ann. § 509.080 (West 2008);
230. Nev. Rev. Stat. § 207.190 (West 2008);
231. N.Y. Penal Law § 135.60, 135.65 (McKinney 2008).
232. There have been several lawsuits dealing with nooses filed under the following provisions of federal law: 18 U.S.C. § 241 (2006);
233. 42 U.S.C. § 1981, 1983, 1985, 2000 (2006).
234. See, e.g., United States v. Hobbs, Nos. 05-4744, 05-4745, 2006 U.S. App. LEXIS 18113, at *2 (4th Cir. 2006).
235. 161 See Del. Code Ann. tit. 11, § 1304 (2008).
236. See, e.g., Ala. Code § 13A-5-13 (2008).
237. See, e.g., Cal. Penal Code § 422.6 (West 2008);
238. Me. Rev. Stat. Ann. tit. 17, § 2931 (2008);
239. Mass. Gen. Laws Ann. ch. 265, § 37 (2008);
240. W. Va. Code Ann. § 61-6-21(B) (West 2008).
241. See Jeannine Bell, Policing Hatred: Law-Enforcement, Civil Rights, and Hate Crime 14-17 (2002).
242. See Karen Franklin, Good Intentions: The Enforcement of Hate Crime Penalty Enhancement Statutes, 46 Am. Behav. Sci. 154, 157-159 (2002).
243. See Jeannine Bell, Deciding When Hate Is a Crime: The First Amendment, Police Detectives and the Identification of Hate Crime, 4 Rutgers Race & L. Rev. 33, 51-53 (2002) (describing police units with different capacities to investigate hate crime).
244. 538 U.S. 343, 357, 363 (2003).
245. See generally Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado & Kimberlé Williams Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993).
246. Id.
247. Matsuda, supra note 113.
248. Id. at 2346-2347 (citing laws punishing hate speech in the United Kingdom, Canada, Australia, and New Zealand).
249. Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination states that state parties: Shall declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin...
250. Matsuda, supra note 113, at 2341 (quoting International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1996, 660 U.N.T.S. 195).
251. Id. at 2351-2353.
252. Id. at 2356-2358.
253. Id. at 2357.
254. 812 F.2d 1250 (9th Cir. 1987).
255. Id.
256. Id. at 1256.
257. 394 U.S. 705, 708 (1969).
258. 812 F.2d at 1253.
259. Id.
260. Virginia v. Black, 538 U.S. 343, 360 (2003) ("[T]he history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence.").
261. Id. at 357.
262. Id. at 365.
263. Id. at 347.
264. Id. at 366.
265. 154 F. Supp. 2d 820 (2001).
266. See, e.g., Primm v. U.S. Fid. & Guar. Ins. Corp., 922 S.W.2d 319, 321 (Ark. 1996).
267. Robert A. Mikos, "Eggshell" Victims, Private Precautions, and the Societal Benefits of Shifting Crime, 105 Mich. L. Rev. 307, 338 (2006).
268. 154 F. Supp. 2d 820, 824 (S.D.N.Y. 2001).
269. Id. at 821.