[ OUR OPINION ]
DEFENDERS of the First Amendment are not cheering the U.S. Supreme Court's affirmation yesterday of Virginia's law making cross burning illegal. However, the high court struck down the essence of the law, rendering it next to useless. Freedom of expression remains intact, and is illegal only when deliberately used to intimidate someone. The intimidation, not the symbolism, is the illegality. Free speech survived
cross burning decision
THE ISSUE The Supreme Court has upheld a Virginia law against cross burning, but prosecutors must prove intent to intimidate.
Virginia's law makes it a felony for any person to burn a cross on another person's property or any public place "with the intent of intimidating any person or group." However, it goes further in asserting that any cross-burning should be regarded as "prima facie evidence of an intent to intimidate a person or group." In other words, the prosecutor need not prove the cross burner's intent in order to obtain a conviction.
"It is important that Virginia have the ability to protect her citizens from this type of intimidation," Virginia Attorney General Jerry W. Kilgore said last year. "Burning a cross to intimidate someone is nothing short of domestic terrorism."
Of course, the same can be said about burning the Star of David or, more topically, the Islamic moon and star, to intimidate someone. The problem with the Virginia law is that it specifies the cross and no other symbol, religious or otherwise. The high court unfortunately has affirmed that selective nature of the Virginia law.
Because of the Ku Klux Klan's history of cross burning and lynchings, Justice Sandra Day O'Connor wrote for the majority that "few if any messages are more powerful" than cross burning. The court had ruled previously that "fighting words," those that "inflict injury or tend to incite an immediate breach of the peace," as well as "true threats," are not protected by the First Amendment.
However, the Virginia law does not distinguish between a cross burning's symbol of terrorism and its ideological message of white Protestant supremacy, hateful but protected as free speech. "As the history of cross burning indicates," O'Connor wrote, "a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity." She also noted that cross burning has appeared in movies, such as "Mississippi Burning," and on stage.
"It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross," O'Connor added. "But this sense of anger or hatred is not sufficient to ban all cross burnings."
O'Connor quoted Gerald Gunther, the late constitutional law scholar who emigrated with his family from Germany to the United States in 1938: "The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot's hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law."
