Then They Came For The Cross-Burners…

Some time after Trent Lott`s 157th

for what he said to Strom Thurmond

last month
, the U.S. Supreme Court took up the
not-very-burning issue of

cross burning
, and the New York Times

splashed the news
all across its front page the next

A case before the court is
challenging a statute of the state of Virginia that
makes burning crosses a criminal act, and the reaction
to the case from

Justice Clarence Thomas
was the ostensible reason
for the media attention to it.

Justice Thomas doesn`t much care
for cross-burning, a practice associated with the Ku
Klux Klan and its efforts to avoid "all those problems"
to which Sen. Lott

may have been alluding
a few weeks ago. "There`s
no other purpose to the cross, no communication, no
particular message,"
the Court`s only black justice
remarked. "It was intended to cause fear and to
terrorize a population."

In pronouncing this judgment before
the discussion of the case had even been concluded,
Justice Thomas seems to have

closed the book
before anyone (including maybe
Justice Thomas) had a chance to read it. 

Specifically, the case involves a
challenge to Virginia`s 1952 statute outlawing the
burning of a cross for purposes of intimidation. The
Virginia Supreme Court upheld the law, and the
defendants are now bringing their appeal to the U.S.

In one of the cases, a leader of a
local Ku Klux Klan group burned a cross on private
property at a Klan rally in 1998. On that occasion, the
cross-burning was not intended to intimidate or
terrorize anyone. The Klan leader was fined $2,500.

The other case before the Court
involves a pair of white men who burned a cross in the
yard of a black neighbor, in the course of using racial
slurs. In that case intimidation as well as criminal
trespass seem to be pretty clear. Each was convicted and
got a brief jail sentence and a fine. The Virginia court
consolidated their cases into the

one case
now before the U.S. Supreme Court.

Their argument is that in 1992 the
Supreme Court

struck down
a similar law in St. Paul, Minnesota
that outlawed placing on public or private property any
object "which one knows or has reasonable grounds to
know arouses anger, alarm, or resentment in others on
the basis of race, color, creed, religion, or gender."

That case also involved the burning of a cross, and the
Court, following the Minnesota Supreme Court, struck it
down on the grounds that it went well beyond the
legitimate purpose of penalizing words that might incite
to violence or injury — what are generally called
"fighting words."

The lawyers for the Virginia case
claim that the same reasoning applies to that state`s
cross-burning statute.

That`s why Justice Thomas`s remarks
during the argument phase of the hearing seemed to have
prejudged the case.

The whole point of the defense is
that cross-burning can sometimes have purposes other
than "causing fear and terrorizing a population."

The irony of the case is that the
Klansman actually seems to be the one who really didn`t
intend to terrorize anyone when he set the torch to the
cross. It was the two non-Klansmen who had intimidation
or inciting fear in mind when they decided to light up
their neighbor`s back yard in the middle of the night.

Justice Thomas voted against the
St. Paul ordnance in 1992. Either he forgot that last
week or he thinks the Virginia case involves a different

He may be right. The St. Paul law,
to judge from its own language, seems to have intended
to outlaw actual speech other than simply what could
incite violence. The Virginia law is couched in language
that makes intimidation and fear its specific targets.

It`s not clear why the Klansman
should have been convicted under it, but it is clear why
the other two defendants were.

Burning crosses might possibly
communicate some message other than fear and terror, but
what`s not clear is why anyone today thinks
cross-burning is a useful means of expressing the Inner
Me. As a practical means of expressing any coherent
thought or message, a burning cross is not very useful.

But the Court might be

well advised

strike down the law
simply because there is already
too strong a trend toward outlawing the expression of
unpopular thoughts — at least in places like Europe and

, where jails are full of "thought criminals"
who have said or written forbidden things about race,
immigration or other sensitive subjects.

There are

people in this country
who would very much like to
see such laws enacted here.

The sooner the laws that might
serve as

precedents for doing so
are removed, the less
threatened our own freedom will be.


January 02, 2003