For the fourth straight year, Texas congresswoman Sheila Jackson Lee has introduced an anti-noose bill.  The Noose Hate Crime Act of 201 stipulates that “Whoever, with intent to harass or intimidate any person because of that person’s race, color, religion, or national origin, displays a noose in public shall be fined under this title or imprisoned not more than 2 years, or both.”

Hate crimes legislation, though admirable at first glance, raises serious First Amendment issues.  In practice, it will be difficult to prove that a specific noose hanger was motivated by a desire to “harass or intimidate”. 

Jackson Lee’s bill was first introduced as a response to the noose hanging in Jena Louisiana, but I’m not sure it would (or should) apply to that kind of situation.  What would have been gained by locking up the Jena noose hangers for two years?  Would this teach them a lesson they would never forget, or would it simply harden the racial resentment that motivated their act in the first place?

In Jena, public officials were easily persuaded that the nooses were inspired by a scene from Lonesome Dove or, alternatively, a dig at the school’s rodeo team.  The nooses appeared in a tree on the high school campus the morning after a black student asked the principal in a school assembly if black kids could sit under a certain tree.  No one disputes this.  But the majority of white folks across the nation were willing to accept any non-racial explanation the students offered.  Had the case gone to trial (in Jena or anywhere else across the South), a simple denial of racial intent would have protected the defendants from legal fall out.

Nonetheless, several states (California and New York among them) have passed anti-noose legislation, largely as a symbolic moral statement.

That’s all right, I suppose.  We should be morally outraged by hate speech, and hanging a noose undoubtedly sends a hateful and hurtful message.  But the very intensity of the outrage inspired by vestiges of Jim Crow bigotry can blind us to the altered visage of contemporary racism.   

In Jena, people tended to focus on either the noose hanging or the beat down at Jena High School three months later.  Noose people often minimized the seriousness of the assault; folks pushing a thug-narrative generally dismissed the seriousness, or relevance, of the nooses. 

Both sides in this fight missed the point.  Faced with two bad acts (one perpetrated by white kids in late August, the other by black kids in early December) people bickered over which was the worst.  White people typically argued that the noose hangers were simply dumb while the assailants who attacked Justin Barker were motivated by racial hatred.

This unproductive “who’s the real racist” game tells us a great deal about the current state of racial dialogue, but did anyone learn anything?

While we were all squabbling about the kids of Jena, attention was diverted from the folks driving the action–the adults. 

DA Reed Walters and school Superintendent Roy Breithaupt over-reacted to the beat down by filing excessive charges, and they clearly under-reacted to the noose hanging.  But their real crime was that, by refusing to take the noose hanging seriously, these men created an intensely adversarial, and overtly racial, relationship between two groups of students.

The proper response to the noose hanging was dialogue and teaching.  First, the racial intent of the act needed to be acknowledged.  Secondly, the student body needed to be told why, given the racial history of the South, the appearance of a noose in a tree at the school was bound to inspire pain, fear and anger.  Finally, the noose hangers should have been given an opportunity to publicly apologize and a simple ritual of unity and mutual respect should have been performed.

Unfortunately, when you consider the world in which Walters and Breithaupt were raised, you understand why they couldn’t take the high road.  If they are like most white folks in the rural South, the DA and the Superintendent have unresolved feelings about the demise of Jim Crow and the triumph of school integration.  They have no desire to re-introduce Jim Crow segregation, and probably consider themselves officially colorblind.  But when the nooses went up the two men were paralyzed by their deep-seated racial ambivalence.  The demise of Jim Crow created a sense of deep humiliation and unresolved racial resentment across the South.  White southerners who came of age just as the times were a-changin’ never had a chance to unpack their emotional baggage. 

When public officials like Reed Walters in Jena, La., Sheriff Larry Stewart in Tulia, Texas, and Doug Evans in Granada, Mississippi get work with the criminal justice system they bring their emotional baggage with them.  They don’t see themselves as racists, yet, inwardly, they boil with indignation whenever the subject of race is broached.  When black parents protested the noose hanging, the school board refused to let them speak.  Embarrassed by an article in the newspaper, they decided to give the black parents five minutes, then, with hardly a word of acknowledgment, moved on to more important matters.

You see the same racial insensitivity in the schools and down at the courthouse.  Black kids pick up on the unspoken hostility and don’t always respond in creative and positive ways.  Some lash out, others turn inward.  A silent rage builds on both sides of the color line.  There is no forum in which the really big issues can be squarely faced. 

That’s why Jena became a kind of Rorschach for the nation.  Two versions of the story quickly emerged.  In one, black kids, enraged by a noose hanging, beat up a gloating white kid.  In the other, a gang of black thugs assaulted a defenseless white student for no reason whatsoever.

Neither story comports with the truth, but both are revealing. 

The Jena 6 were vulnerable to over-prosecution because, in the eyes of an all-white jury, they were a gang of heartless thugs.  Had Friends of Justice not intervened, at least two of the Jena defendants would have done serious prison time.  The mandatory sentence for attempted murder in the state of Mississippi is twenty-five years without parole if a deadly weapon is involved.  That’s why Walters argued that the shoes the boys were wearing constituted deadly weapons. 

In reality, the Jena 6 (and the white kids who hung the nooses) are best understood as normal adolescent males forced into an adversarial relationship by adults who abdicated responsibility.  Neither group behaved honorably.  But here’s the point: if the noose incident had been handled properly, the violence that engulfed Jena for three months would have been avoided.

The Jena story is a distinctly American tale.  We choose to ignore the rank injustice and inequality in our midst and then react in horror when violence erupts.  We refuse to accept any responsibility for bad acts perpetrated by poor and desperate people.  We absolve society (and ourselves) of even the slightest shard of responsibility. 

Social dynamics in the small town South aren’t that much different from big city reality, but they much easier to wrap your head around.  The events in Jena were simple, public, and indirectly involved every person in the community.  Breithaupt and Walters reacted the way their constituents expected them to react.  Jena wasn’t a story about a couple of Jim Crow racists in a little southern backwater; it was America writ small.

How do you write a bill that addresses racial resentment?  You can’t.  The noose carries a perverse power because it evokes a Jim Crow world that hardly exists.  You can’t outlaw the new Jim Crow.  The new Jim Crow is the law.  No systemic tweaks can solve the new Jim Crow; the new Jim Crow is the system. 

We need a new racial consensus, a new social consensus, and a new economic consensus.  Only then will we see real change in the justice system.