A thoughtful decision.
Correctly drawing the finest of distinctions between intimidation and free expression, the U.S. Supreme Court ruled this week that a Virginia law banning cross-burnings does not infringe upon free speech fights. But in its carefully constructed ruling, the court also rejected a separate part of the Virginia law that instructed juries to consider cross-burning to be prima facie evidence of intimidation.
The court properly and carefully chose the middle ground. It did not declare that all cross-burnings are, by legal standards, intimidating and, thus, illegal. Nor did the court rule that cross-burnings could, under certain circumstances, be considered nonthreatening and, thus, are fully protected by the First Amendment's guarantee of free speech.
While it's difficult to fathom a cross-burning that isn't meant to intimidate, the court wisely leaves states some wiggle room to wrestle with the distinction on their own.
Technically, the high court overturned a 2001 decision by the Virginia Supreme Court that the state's law banning cross-burning amounted to a blanket infringement on free speech. Such an assumption, Justice Sandra Day O'Connor wrote for the high court's majority, "makes it more likely that a jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute and convict a person based solely on the fact of cross-burning itself."
Predictably in a case as complicated as the Virginia statute presented, the Supreme Court's decision produced a number of individual and group opinions. Three justices - liberals David Souter and Ruth Bader Ginsberg, and conservative Anthony Kennedy - held that the Virginia law was blatantly unconstitutional because of its "tendency to suppress a message." Justice Clarence Thomas, the high court's only African-American member, took the opposite tack, writing that "not making a connection between cross-burning and intimidation would be irrational."
But in the end, the plurality on the court held sway with its mixed message that recognized both the illegal intimidation that can be caused by cross-burning and the legal mandate protecting free expression.
The case made its way to the Supreme Court on the basis of convictions in two separate cases against three Virginia men. Two of the three were convicted of trying to burn a cross in the yard of an African-American neighbor. The third was a man who spearheaded a Ku Klux Klan rally at which a 25- to 30-foot cross was burned - a rally that also featured talk of shooting black people.
Cross-burning is clearly not a neutral act. Its history, dating to the 19th century, is overflowing with racial hatred and intimidation. But the high court correctly - though with great difficulty - drew the line between an uncompromising ban on cross-burning in general and a recognition that, in some few instances, such an act may in fact be a political expression without a clear-cut, primary intent to frighten.
Congress, the states and citizens now must discern the difference between a highly provocative act such as burning an American flag, which the court has said is an exercise of free-speech rights, and burning a cross, which the court has now ruled may be prohibited by law. The distinction hinges on intent - and history has freighted cross-burning with a heavy load of intimidation that is absent from nearly all other acts. Nobody ever said that lawmaking, or the subsequent interpretation of laws by the courts, was easy.
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|Title Annotation:||High court strikes balance on cross-burning; Editorials|
|Publication:||The Register-Guard (Eugene, OR)|
|Date:||Apr 9, 2003|
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