Last month the Supreme Court of the United States heard oral argument in a case which, if wrongly decided (as it may well be) will constitute a serious setback for free speech.
Three white men in Virginia burned a cross on a black neighbor’s lawn. They were convicted under a 50-year-old Virginia statute that prohibits cross-burning "with the intent of intimidating any person or group of persons." The Virginia Supreme Court reversed the convictions, holding that the law unconstitutionally violated the First Amendment’s guarantee of free speech. (This is not to say that the defendants might not, and should not, be criminally responsible under other laws – e.g., trespass, arson, terroristic threats, malicious mischief, racially motivated assault – and civilly liable as well). The Supreme Court of the United Sates agreed to review the case.
While Virginia v. Black is important because of the free speech question it raises, the case has become more even more noteworthy because of comments made from the bench by normally silent Justice Clarence Thomas, and the reaction to those comments by most of his colleagues.
At the oral argument, Professor Rodney Smolla of the University of Richmond School of Law – one of America’s foremost free speech scholars and champions – frankly characterized cross-burning as "horrible, evil and disgusting." Nonetheless, he attacked the Virginia anti-cross burning statute as unconstitutional and the defendants’ conduct as constitutionality protected free speech – akin to flag burning and swastika displays which, though equally odious, have been held to be protected by the First Amendment.
The federal government’s Solicitor General’s office argued in favor of the law, asserting that cross-burning was not "expression," but rather "akin to a threat to put somebody in fear of bodily harm." In other words, as the statute says, to "intimidate."
Enter Justice Thomas, from the bench:
- "My fear is you are actually understating the symbolism of and effect of the burning cross."
- "I think what you’re attempting to do is fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish."
- "My fear is that there is no other purpose to the cross. There was no communication, no particular message. It was intended to cause fear and terrorize a population"
- "This was a reign of terror, and the cross was a symbol of that reign of terror. Isn’t that significantly greater than intimidation or a threat?"
- "We had almost 100 years of lynching and activity in the South by the Knights of Camelia and the Ku Klux Klan."
This last comment reveals Justice Thomas’ understandable (but inappropriate) emotional reaction to cross-burning. Unfortunately, his reaction sparked similar reactions from some of his fellow justices. The Associated Press reported that the subject of cross-burning "also evoked strong emotions from his colleagues, who joined in expressing concern about violence and racism. . . ." Justice Antonin Scalia, for example, noted that blacks would prefer to see a rifle-toting man in their front yard rather than a burning cross. Justice David Souter remarked that "[t]he cross has acquired a potency that is at least equal to that of a gun." One commentator has written that "[a]ccording to accounts of those who were in the courtroom, it seemed as if Thomas brought the court around to the view that banning such expression is permissible under the First Amendment."
Such a ruling would be a big mistake.
Only a decade ago, the Supreme Court of the United States in the case of R.A.V. v. City of St. Paul, Minnesota – teenagers burned a cross in a black family’s yard – had before it a local ordinance providing that:
Whoever places on public or private property a symbol, object,
appellation, characterization or graffiti, including but not limited
to, a burning cross or Nazi swastika, 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
commits disorderly conduct and shall be guilty of a misdemeanor.
This ordinance was held unconstitutional on its face, Justice Scalia concluding his opinion for the Court by forcefully observing: "Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."
It will not be easy for the Supreme Court is to escape the R.A.V. precedent. While the Virginia statute expressly makes no reference to "race, color, creed, religion or gender," as did the St. Paul ordinance, it is clear (as Justice Thomas, among others on the Court, showed) that Virginia’s law has the same intent. Accordingly, because the St. Paul ordinance was unconstitutional because it censored expression regarding race, so too should be the Virginia law. Any attempt by the Court to distinguish the Virginia law from the St. Paul ordinance – on the ground that the former speaks of "the intent of intimidating" (with which Justice Thomas was concerned) while the latter speaks of arousing "alarm" – should fail. The concepts are virtually synonymous.
Other precedents will be difficult to ignore, as Professor Smolla reminded the Court.
In Tinker v. Des Moines School District, the Supreme Court upheld the right of students to wear black armbands to protest the Vietnam War. Why? Because their conduct was "closely akin" to pure speech. Nor had the school district banned all political symbols: "A particular symbol – black armbands worn to exhibit opposition to this Nation’s involvement in Vietnam – was singled out for prohibition."
So, too, in Virginia, only burning crosses – not swastikas, as Professor Smolla said, or photographs of bin Laden, or an effigy of Hillary Clinton – are prohibited. In Virginia v. Black – just as in Tinker – the unmistakable intent of the law was to censor a particular idea. In Tinker, it was opposition to the Vietnam War. In Black – and we have Justice Thomas’ comments as proof – it was opposition to a certain race. In both cases, the law sought to censor conduct "closely akin" to pure speech.
In Texas v. Johnson the defendant was prosecuted under a state law making it a crime to desecrate or otherwise mistreat the American flag in any way "the actor knows will seriously offend one or more persons likely to observe or discover his actions." Johnson had doused a flag with kerosene and set it ablaze, while other protestors chanted "America, the red, white, and blue, we spit on you." Johnson’s conviction was reversed. He had engaged in expressive, albeit reprehensible, conduct.
Were the three defendants in Black similarly engaged in expressive conduct when they burned the cross? Of course they were. They weren’t trying to rid themselves of unwanted wood, to compensate for a broken street lamp, or to celebrate a holiday. They didn’t burn the cross on a white person’s property. They hadn’t started the fire accidentally. They were sending a message to that black family. No matter how odious, bigoted, uncivilized, and un-American the message (and it was!), like the armband-wearing students in Tinker and the flag-burning defendant in Johnson, the cross-burners’ message in Black was one protected by the First Amendment because it expressed an idea.
If Justice Thomas’ record is any guide, he certainly knows this. Indeed, with the exception of Justice Antonin Scalia, with whom Justice Thomas frequently votes, no one currently sitting on the Supreme Court has been more consistently conservative (even libertarian) and protective of root constitutional principles than Thomas. This time, however, at least at the oral argument, the justice apparently allowed his emotions to interfere with his constitutional judgment.
We can hope that when the Court conferences and the votes are counted, Justice Thomas will remember words once written by a political philosopher I suspect he respects: "[I]n the transition to statism, every infringement of human rights has begun with the suppression of a given right’s least attractive practitioners. In this case [involving pornography], the disgusting nature of the offenders makes it a good test of one’s loyalty to a principle." (Ayn Rand, "Censorship: Local and Express," The Ayn Rand Letter, August 23, 1973).