Will high court make cross-burning a new class of unprotected speech?

Thursday, December 12, 2002

WASHINGTON — The Supreme Court over the years has placed several kinds of expression outside the protection of the First Amendment: obscenity, libel and so-called “fighting words.”

Based on the dramatic oral arguments yesterday in a Virginia cross-burning case, the Court may be preparing to create a new class of unprotected expression, though its label is uncertain. It might be called “threatening symbols,” or it may be a category with only one member: cross-burning itself.

And if it does so, the credit or blame will go to Justice Clarence Thomas, whose growing credentials as a First Amendment purist may, oddly enough, give him the ability to persuade his colleagues to single out cross-burning as the newest form of speech the First Amendment should not protect.

Thomas made his views known during arguments in Virginia v. Black, an otherwise typical First Amendment case, in which the Court seemed likely to strike down at least part of a Virginia law that makes it a crime to burn a cross with the intent to intimidate. The Supreme Court rejected a similar statute in the case R.A.V. v. City of St. Paul 10 years ago for impermissibly singling out a particular viewpoint for punishment.

Virginia State Solicitor William Hurd had argued that the Virginia law was different, because it banned all kinds of intimidating cross-burning, without specifying racial or religious motives, as was the case in R.A.V. But it was not clear that the Court was buying his argument. And one provision of the law seemed doomed, based on comments from Justice Sandra Day O'Connor and others. The Virginia law allows jurors to presume, from the simple fact of a cross-burning, that the intent behind it was to intimidate.

“You could have a cross-burning in a play or theater that in theory should not violate the law,” said O'Connor. Justice John Paul Stevens also theorized that someone could burn a cross “in the middle of a desert” without the intent to intimidate that the Virginia law allows jurors to infer.

Hurd downplayed the provision, calling it a “common-sense rule of evidence” that did not excuse the prosecutor from having to prove intent to intimidate. But he suggested that if the Court did not like the provision, it could strike it down without rejecting the entire law.

Deputy Solicitor General Michael Dreeben was in the middle of lending the federal government's support to Virginia's cause when the rarely heard voice of Justice Thomas boomed out, cautioning Dreeben not to underestimate the potency of cross-burning as an intimidating act.

The act of cross-burning, Thomas said, carries with it the history of “100 years of lynching in the South.” He added, “this was a reign of terror,” and burning a cross now is “intended to have a virulent effect. It is unlike any other symbol.” He cautioned against fitting cross-burning into the Court's existing “fighting words” jurisprudence, which requires that threat of harm be imminent for the speech to be punished.

Thomas, who usually asks only two or three questions a year during oral arguments, was not actually asking a question yesterday. But it was the second time that Thomas, the second African-American justice in history, had raised his voice on the subject of the racist symbolism of a cross in the hands of the Ku Klux Klan. He first did so in 1995, during arguments in Capitol Square Review Board v. Pinette, which involved placement by the Klan of a cross on public property.

It was clear that the conservative Thomas, who is often accused of forgetting his roots in Pin Point Georgia, felt that cross-burning occupies a unique place in American racial history — and that it could be singled out as a form of expression undeserving of constitutional protection, even if it does not portend immediate physical violence.

Other justices appeared deeply affected by Thomas's comments. From that point on the tenor of the argument changed, and it seemed possible that the Virginia law might survive — though the inference clause might still be rejected.

Justice David Souter said that arguments against the Virginia law might have been more persuasive “in 1820,” before the history of which Thomas spoke imbued cross-burning with its terrorizing significance. Souter described cross-burning as a “Pavlovian symbol.”

By the time University of Richmond law professor Rodney Smolla rose to attack the law on behalf of several cross-burners, it was clear that Thomas had made his task much harder. But Smolla, a veteran First Amendment advocate and theorist, did not shy away from the job, reminding the court of its repeated rejection of viewpoint and content discrimination.

“There is not a single interest that society seeks to advance that could not be vindicated exactly as well” by other, content-neutral laws on the books, Smolla said. General laws barring threats and intimidation would suffice, he said. Hurd, too, had acknowledged the existence of other laws that would punish cross-burners, but argued that the existence of other laws did not make this one unconstitutional.

O'Connor also asked why a state is not entitled to single out and regulate “a particularly virulent” kind of threat.

“It is also a particularly virulent form of expression,” Smolla replied. Smolla's strategy appeared to be to turn cross-burning's potent symbolism into an advantage, giving the act characteristics of expression that should be protected. At one point, noting that all Klan meetings include a cross-burning, Smolla said the Klan as a political organization represents “a melange of messages … a jumble of political anger” that would be chilled by the Virginia law.

But Smolla's strategy, which ordinarily might prove successful, may have been neutralized by Thomas's powerful words. When Smolla asked rhetorically what the difference was between burning a torch and burning a cross, Justice Anthony Kennedy shot back, “100 years of history,” mirroring what Thomas had said.

Smoothly, Smolla replied that that history had given cross-burning expressive meaning as a message that a torch-burning would not, implying that, therefore, cross-burning deserved First Amendment protection. But because Thomas had cited that same history to argue the opposite, Smolla's argument seemed hollower than it might have sounded if he had delivered it a half-hour before.

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