Monday's Supreme Court ruling on cross
burning is being interpreted as stating that the threat implied by
burning crosses overshadows free speech concerns. But that isn't
exactly what the majority said.
The court voted 6-3 to uphold states' power to punish Ku Klux
Klansmen and others who burn crosses as an act of intimidation.
Justice Sandra Day O'Connor, writing for the majority, said the
protections afforded by the First Amendment "are not absolute" and
do not necessarily shield cross burners.
Indeed, the Constitution offers no protection to those who
deliberately intimidate or terrify their neighbors. As Justice
Clarence Thomas wrote: "Just as one cannot burn down someone's house
to make a political point and take refuge in the First Amendment,
those who hate cannot terrorize and intimidate to make their
point."
But the ruling nonetheless seemed to leave room for some cross
burnings that might be protected under the Constitution. "While a
burning cross does not inevitably convey a message of intimidation,"
O'Connor wrote, "often the cross burner intends that the recipients
of the message fear for their lives."
The ruling involved a Virginia law that outlaws cross burning.
Virginia was defending its prosecutions of two white men in Virginia
Beach, Va., who ended a night of partying by trying to burn a 4-foot
cross in the yard of a black neighbor. The neighbor later moved his
family because of concern for their safety.
Significantly, however, while the high court ruled that states
have a right to make cross burning illegal, it also threw out the
Virginia law because the law assumed that any cross burning is prima
facie evidence of intent to intimidate. Justices said that
prosecutors in such cases have a responsibility to prove that the
cross burning was intended to terrify and not simply an attempt to
make an ideological statement.
That is a small but important distinction in regard to the right
of free speech. A jury cannot automatically assume that cross
burning alone is an act of intimidation.
Cross burning, of course, has a long, well documented history as
a tool of terror, particularly in the South from Reconstruction on.
No one could question the KKK's intent when it set crosses ablaze,
an act often followed by a lynching. Thus, we can't argue with the
court's decision that states have a right to outlaw overt
intimidation of one's neighbors.
But we also are concerned about the right of free expression.
Cross burning, after all, is a symbolic gesture, and the court has a
tradition of protecting free expression, even when it is unsavory or
unpopular, such as the wearing of swastikas or flag burning.
Justice O'Connor noted that Virginia's law, as written, would
subject makers of a movie such as "Mississippi Burning" to
prosecution if they burned flags during the course of filming. The
Virginia law would have required them to prove they were not guilty
of intimidation.
Clearly, the matter of intent is important. We hope that those
reading about this decision make that subtle distinction.
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In summary
First Amendment does not protect people if they intimidate
their neighbors.
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