Cross Words

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The U.S. Supreme Court apparently is leaning toward upholding Virginia's ban on cross burning. To judge by the account in today's New York Times, the justices forgot their First Amendment concerns after Clarence Thomas made an impassioned statement about the meaning of a burning cross during yesterday's oral arguments. He said "it is unlike any symbol in our society," in that "there is no other purpose to the cross, no communication, no particular message" aside from a threat of violence. "It was intended to cause fear and to terrorize a population."

Given the brutal, oppressive history associated with cross burning, Thomas' strong feelings on the subject are certainly understandable. Yet the very statute he wants to uphold contradicts his argument that a burning cross can never be anything more or less than a threat. Ostensibly, the law bans cross burning only when it is done "with the intent of intimidating any person or group of persons"–which suggests that it can be done without such an intent. (Of course, if this clause made the ban as narrow as its defenders say it is, the law would be superfluous, since threatening or harassing people is already illegal.)

I'm also not sure that a burning cross is uniquely threatening. It seems to me that a swastika has a similar impact for a Jew, inspiring fear by dredging up murderous associations. At the same time, displaying one (as opposed to painting one on a synagogue, say) is not necessarily tantamount to a threat of violence. What sort of precedent will be set if the Supreme Court starts declaring that certain symbols are so emotionally powerful that they are not protected by the First Amendment?

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  1. The press is making too much of what Clarence Thomas said, which is often the case with oral arguments. Maybe he was just trying to put the defendant’s lawyers on the spot playing devil’s advocate.

  2. In fact, Justice Thomas directed his remarks at the Assistant Solicitor General, who was defending the law as constitutional.

  3. This is another NON-issue. This is another “war on drugs”-like argument. If it’s illegal and people want to do it, they are just going to break the law to do it. If i wanted to steal a car, the fact that it’s against the law isn’t gonig to stop me. If i wanted to burn a cross in someone’s yard, the law isn’t going to stop me.

    This is a very stupid issue. It’s against the law to spray paint swastikaz (sp?) in Jewish cemetaries, but that doesn’t stop the skin-heads, does it?

  4. The press made so much of Justice Thomas’s remarks because Justice Thomas almost never speaks in oral argument. This reticence to interrupt oral argument is often interpreted as inattention on his part by his detractors. But it makes it newsworthy when he does speak. You can’t draw too much from his comments that will tell you how the Court will decide this case, but you can conclude an awful lot about how Justice Thomas will vote on it.

  5. It may important to note Justice Scalia’s remark during the same oral argument: “There is a right to burn a cross in the sanctity of one’s bedroom.”
    (actually its not important, I just really liked the line)

  6. The swastika would be a less active threat, as Nazi sympathizers are seemingly less likely to act upon the implied threat that the Klan-type cross burners.

    Is there a benign use for the symbol in modern-day America? I remember reading where the burning cross was once a sign of peril in Scotland akin to flying a flag upside down. That aside, there doesn’t appear to be a non-threatening use of cross burning, so you might want to back off the First Amendment absolutistism on this one.

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