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Remind Justice Thomas that cross-burning is protected speech

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© St. Petersburg Times
published December 15, 2002

The silent justice spoke. Clarence Thomas, the only African-American on the U.S. Supreme Court, found his voice last week during oral arguments in a case challenging the constitutionality of a Virginia law banning cross-burning. In a passionate exchange, Thomas made clear that he would grant cross-burners no harbor in the First Amendment. "(Burning a cross is) unlike any symbol in our society," Thomas said. "There's no other purpose to the cross, no communication, no particular message. It was intended to cause fear and to terrorize a population."

According to news reports, Thomas' words were intently followed by his fellow justices, who seemed to sympathize with his views. But emotion can be a dangerous thing in constitutional jurisprudence. Thomas' position is flatly wrong. Cross-burning is highly expressive symbolic speech and should be permissible as long as the property owner has consented. The act can convey a variety of messages short of a call to racial violence, including support for segregation and the notion of racial superiority. These ideas may be reprehensible, but holding and expressing them are constitutionally protected. To do otherwise would cede to government the power to prohibit highly offensive ideas -- a position that would do serious harm to the First Amendment.

What was fascinating about Thomas' oration is it came from a man known to ask only two or three questions a year from the bench, a reticence that has been sneered at by his detractors. And Thomas has many detractors. Since his appointment to the high court in 1991, he repeatedly has been accused of abandoning his race when his opinions don't jibe with liberal black orthodoxy -- most notably, as a leading proponent for banning state-sponsored affirmative action. Thomas believes, not unwisely, that the Equal Protection Clause was written to make government colorblind.

By emotionally venting against cross-burning, though, Thomas reminds us, he is a man who understands the historical suffering of blacks. In fact, he was a part of that history. Thomas was a victim of the racist South in a way that a big part of today's black activist movement hasn't come close to experiencing.

He was born in 1948 in the small coastal town of Pin Point, Ga. His mother was only 18 when she gave birth to Thomas; and he was raised essentially without a father in a wood shack that lacked electricity and plumbing. When his home was destroyed by fire while he was still a youngster, Thomas was sent to live with his grandparents. His grandfather, Myers Anderson, owned a little fuel business in Savannah and believed in hard work as a way to move through poverty and the humiliations of segregation. He was a vocal member of the NAACP.

For $30-a-year, Anderson sent Thomas and his younger brother to a private Catholic school, St. Benedict the Moor, an all-black grammar school run by white nuns who were derisively called "nigger sisters" by local whites. The KKK was a looming menace, often targeting the nuns and church officials for seeking to educate black children. Once, the Klan drove a hearse to the rectory as an intimidation tactic.

In a 1990 interview with the Washington Times, Thomas said Savannah in the 1950s was "two different worlds: the white and the black. A world where there was no place for blacks to play tennis or go swimming. A world where a sign at the North Carolina border read, 'The United Klan of America Welcomes You.' "

It is no wonder Thomas can't see past his own wounds when the crosses are burning in Virginia vs. Black. But the case, constitutionally, is really no different than any other form of hate speech. Carving out a special category of unprotected speech for symbols deemed inherently intimidating would be a grave mistake -- inching us further toward the proposition that listeners can silence offensive speakers.

Recounting Klan history is relevant here, but so is the fact that a sturdy First Amendment provided the undergirding for social change during the civil rights movement. Speeches, marches, pickets and boycotts -- all manifestations of expressive freedom -- were the tactics employed to pressure the Southern establishment to yield on segregation. Had those formerly Confederate governments been given a loophole to shut down intimidating speech, they would have exploited it to their own ends.

If Thomas is able to convince his fellow justices to accept a cross-burning ban, he will have diminished freedom in an area he feels strongly about -- having forcefully stood in prior decisions for free speech in the commercial speech and campaign finance context. He will have also created an exception to the First Amendment to treat a pain uniquely felt by black Americans, from the South, of about his age. This special dispensation is just the kind of race consciousness lawmaking he has built a career fighting against.

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