Today in Supreme Court History

Today in Supreme Court History: August 22, 1998

|The Volokh Conspiracy |

8/22/1998: On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. The Supreme Court considered the constitutionality of his prosecution for cross burning in Virginia v. Black (2003).

The Rehnquist Court

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  1. At oral argument Thomas surprised everyone by speaking. He said, “Cross-burning has no purpose other than to provoke fear and terror.” Of course at argument you have to boot-lick the judges and not contradict them, particularly if it’s a black man talking about cross-burning, particularly if he has been heretofore noticeably lacking in caring about the effects of racial animus.

    But Thomas was wrong. I’ve seen cross-burning done without the purpose of provoking fear and terror. It used to happen at my undergraduate college, where a fraternity would burn a cross in front of the only all-female dorm. It was a joke, meant to poke fun at the girls’ religious virginity. All the people involved were white. The objections were made by the (many) born-again Christians on campus. The black students’ association, normally not bashful about expressing themselves, did not weigh in. This was 1976.

  2. So is it about the law, or is it about the consequences of following the law too faithfully?

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