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Too early to know full effect of cross-burning ruling

By Tony Mauro
Special to the First Amendment Center Online

WASHINGTON — One hallmark of the Supreme Court's First Amendment jurisprudence is the protection of the right of individuals to express themselves in controversial — even vile and objectionable — ways.

Yesterday, the Supreme Court found that one form of vile expression, cross-burning, falls outside the First Amendment's umbrella of protection, if the state can prove that it was done with the intent to intimidate.

"When a cross burning is used to intimidate, few if any messages are more powerful," wrote Justice Sandra Day O'Connor for a majority in Virginia v. Black.

As a result, how much of a dent did the Court's 5-4 decision in Virginia v. Black make in its First Amendment edifice?

"Too early to tell" seems to be the best answer from an early reading of the multi-faceted, highly fractured opinion.

The three justices who dissented on mainly First Amendment grounds said the Virginia cross-burning law upheld by the Court's majority amounted to impermissible content discrimination, because it "selects a symbol with particular content from the field of all proscribable expression meant to intimidate." By doing so, it threatens to suppress speech, not just intimidation, wrote Justice David Souter. "Even when the symbolic act is meant to terrify, a burning cross may carry a further, ideological message of white, Protestant supremacy."

And the fatal flaw in the statute is not cured, Souter went on to say, by the majority's agreement that one provision of the Virginia statute should be struck down. That provision says that the very act of cross-burning amounts to "prima facie evidence of an intent to intimidate." In other words, under that part of the law, even cross-burning that is the equivalent of political speech — at an entirely legal Ku Klux Klan rally, for example — is presumed to be intimidating and therefore illegal.

Justices Anthony Kennedy and Ruth Bader Ginsburg joined Souter in his dissent, which invoked the Court's 1992 decision striking down another cross-burning statute, in R.A.V. v. City of St. Paul.

But to others, the Court's decision to strike down the presumption part of the Virginia statute, plus its recitation of the long, unique history of cross-burning, may have limited its impact, creating a "category of one" that converts cross-burning into a special form of speech that, like obscenity, can be banned. To use yesterday's precedent as a justification for banning other kinds of vile speech, the hope is, a similar history would have to be shown, and there would have to be some ability for the accused person to prove he or she did not intend to intimidate.

Another hopeful sign for First Amendment advocates, found deep in O'Connor's majority opinion, is that she may have narrowed the category of "true threats" that can be prohibited without violating the First Amendment. "True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," O'Connor wrote. In past rulings, the Court has required a more objective test for true threats, one that looks at how a reasonable person might perceive the threat. Focusing instead on what the speaker "means to communicate" may make prosecutions more difficult.

Seven justices — all but Antonin Scalia and Clarence Thomas — agreed that the presumption provision violates the First Amendment.

"The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate," wrote Justice Sandra Day O'Connor for the majority. "The First Amendment does not permit such a shortcut."

Justice Clarence Thomas, the Court's only African-American member, dissented, arguing that the First Amendment was not even a factor in evaluating the statute, which he found to be entirely constitutional.

"This statute prohibits only conduct, not expression," wrote Thomas. "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."

Thomas, in his 11 years on the bench, has become viewed as one of the strongest First Amendment defenders on the Court. Because of the special significance of cross-burning in his own upbringing in segregated Georgia, Thomas apparently felt he had to remove the First Amendment from the analysis in order to uphold the law.

First Amendment advocates expressed concern that yesterday's ruling could lead overzealous legislators to use the intimidation rationale to outlaw other forms of controversial speech, from swastikas to flag-burning.

A current case pending before the Court, American Coalition of Life Activists v. Planned Parenthood of the Columbia/Willamette, No. 02-563, involves the so-called Nuremberg Files anti-abortion Web site that lists names and addresses of abortion providers. That site has been challenged as an impermissible threat that should not be protected by the First Amendment.

"Our concern is how much the language in the decision would lend itself to being used in other contexts," said Joshua Wheeler, lawyer at the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va., which filed a brief against the Virginia cross-burning law. "Even if the Court intended its ruling to be limited to cross burning, the potential always exists for legislators to go beyond that."

Virginia Attorney General Jerry Kilgore commented, "A burning cross is a symbol like no other. It doesn¹t just say. 'We don't like you.' The message is, 'We are going to do you harm.'"

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, called the ruling "a victory for race relations in America. ... In our history, burning a cross on someone's front yard is a threat which is not protected by the First Amendment."

The Court fashioned its ruling by treating the case of Barry Black differently from the case of Richard Elliott and Jonathan O'Mara, all of whom had been arrested and charged in different cross-burning incidents.

Black was arrested under the Virginia law in 1998 after burning a cross in an open field in connection with a Ku Klux Klan rally. Elliott and O'Mara, by contrast, were arrested in a separate incident in which they burned a cross on the lawn of Elliott's African-American neighbor.

The Virginia Supreme Court struck down the law as it applied to all three defendants, finding that it was "analytically indistinguishable" from the statute invalidated in R.A.V.

But Justice O'Connor found the law objectionable mainly in the case of Black, a Klan leader. Applying the law's presumption to him, O'Connor suggested, deprived him of the ability to make a defense that he was "engaged in core political speech."

As for Elliott and O'Mara, O'Connor said the presumption was never invoked. O'Mara pleaded guilty, and a jury found Elliott guilty without being instructed by the judge on the presumption aspect of the law.

Jurisdictions with anti-cross-burning laws similar to Virginia's include California, Connecticut, Delaware, Florida, Georgia, Idaho, Montana, North Carolina, South Carolina, South Dakota, Vermont, Washington, and the District of Columbia.


Supreme Court upholds cross-burning ban

Justice O'Connor describes burning cross as instrument of terror deserving no free-speech protection. 04.07.03

Will high court make cross-burning a new class of unprotected speech?
By Tony Mauro Justice Thomas's surprise statement underscoring 'virulent effect' of cross-burning changes tenor of arguments. 12.12.02

When symbols threaten: the line between speech, intimidation
By Ken Paulson Supreme Court's ruling that states can punish cross-burning intended to intimidate may have long-term implications for symbolic speech and efforts to restrict it — it's highly unusual for the Court to uphold a law to curb a specific type of speech. 04.20.03

Justice Clarence Thomas: oral arguments in First Amendment cases

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