The Supreme Court ruled yesterday that states can punish Ku Klux Klansmen and others who set crosses afire, finding that a burning cross is an instrument of racial terror so threatening that it overshadows free speech concerns.
The court voted 6-3 to uphold a 50-year-old Virginia law making it a crime to burn a cross as an act of intimidation. A lower court had ruled the law muzzled free speech.
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.
Justice Clarence Thomas, the court?s only black member and a law-and-order conservative who frequently departs from civil rights orthodoxy, wrote separately that ?those who hate cannot terrorize and intimidate to make their point.?
The ruling seemed at odds with past Supreme Court decisions that protected the constitutional speech rights of unsavory or unpopular groups and causes, including flag burners, pornographers and strippers, and people who use swastikas or crosses in demonstrations.
?This is an emotional topic for everyone,? said New York free speech lawyer Floyd Abrams, noting the cross-burning ties to racist violence. ?The ruling is nonetheless a defeat for First Amendment principles.?
But a USC law professor known as a staunch First Amendment advocate disagreed.
?I think the decision got it right,? Erwin Chemerinsky told the MetNews. ?I don?t think there?s a right to speak in a way that makes people feel threatened.?
Chemerinsky said the decision appears to require that the act be considered in context. Burning a cross in front of an African American family?s home, he said, is much different than doing it at, for example, a Ku Klux Klan rally out in a field, where persons who would be intimidated by the act are unlikely to be present.
Virginia Attorney General Jerry W. Kilgore predicted the decision would prompt more states to outlaw cross burning.
?A burning cross is a symbol like no other. It doesn?t just say we don?t like you. The message is we are going to do you harm,? Kilgore said.
States that have anti-cross burning laws include California, Connecticut, Delaware, Florida, Georgia, Idaho, Montana, North Carolina, South Carolina, South Dakota, Vermont, Virginia, Washington and the District of Columbia.
Connecticut Attorney General Richard Blumenthal, who wrote a brief in support of the Virginia law, said yesterday?s decision was a ?powerful and welcome? endorsement of Connecticut?s law, which has been on the books since 1980.
In his brief, Blumenthal rejected the idea that cross burning was protected speech.
?It?s speech combined with physical threat,? he said Friday. ?Implicit in the speech is a threat of physical harm.?
Cross burning?except on private property with the owner?s consent?is a misdemeanor offense in Connecticut.
The Virginia case evoked a mostly bygone era in the South, when ?nightriders? set crosses ablaze as a symbol of intimidation to blacks and civil rights sympathizers.
Thomas grew up in then-segregated Georgia. During arguments in the case, he spoke of a century of violence and terror at the hands of the Klan and other white supremacy groups.
?The cross was a symbol of that reign of terror,? Thomas said, breaking his customary silence during arguments.
In the ruling, the justices seemed to carve out just a small exception for protected burnings.
?While a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives,? O?Connor wrote. ?And when a cross burning is used to intimidate, few if any messages are more powerful.?
O?Connor was joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Antonin Scalia and Stephen Breyer.
Justices Anthony M. Kennedy, David Souter and Ruth Bader Ginsburg dissented on free-speech grounds.
?The symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten,? Souter wrote. He said the Virginia law does not draw enough of a distinction.
Thomas agreed that cross burning is abhorrent but said the court didn?t even have to consider the First Amendment implications because the state had a right to bar conduct it considered ?particularly vicious.?
?Just as one cannot burn down someone?s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point,? he wrote.
Virginia was defending its prosecutions of three men. In one case, two white men in Virginia Beach, Va., 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.
In the other case, a Pennsylvania man was convicted of burning a 30-foot cross on private land in rural southern Virginia during a KKK rally. The court threw out that conviction because jurors were told that cross-burning alone is evidence of an intent to intimidate, under a provision of the statute which all of the justices except Thomas agreed was unconstitutional.
The case is Virginia v. Black, 01-1107.
"A pen in the hand of this president is far more dangerous than a gun in the hands of 200 million law-abiding citizens."