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?