Opinion: The cost of free speech

Though it is understandable why Supreme Court justices are sympathetic to a statute banning cross-burning, they should strike it down and let free speech prevail.

In a 1992 decision, striking down a city of St. Paul ordinance that banned cross-burning, the U.S. Supreme Court said, "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."

The court had no choice but to set the ordinance aside. It was so broadly written, it punished all sorts of disturbing messages, including the burning of a cross on one's own property. What St. Paul lawmakers hadn't understood was that freedom of speech comes with a cost. In order to protect valuable speech and ideas, we must allow all voices to be heard, even hateful voices.

Now, 10 years later, the cross-burning issue is back before the high court in Virginia vs. Black. Once again the facts of the case are entirely sympathetic to those who would like to see an end to the ugly message sent by cross-burning -- the calling card of the Ku Klux Klan. But the court is duty-bound to ignore its personal sympathies and uphold the rights of racists to free expression. To do otherwise, would be to give the government the ability to censor messages it found odious, a power that would significantly undermine the First Amendment.

The court recently heard oral arguments in two cases that have been combined into a challenge to a Virginia statute banning cross-burning "with the intent of intimidating any person or a group of persons." In one instance a group of three young white men attempted to set fire to a cross in a black family's yard as a way to "get back" at them for complaining about a makeshift backyard firing range one of the three maintained. The other case involves a Klan rally in 1998 where a large cross was burned on private property with the permission of the owner. The cross could be seen by neighbors and passing motorists along a state highway. In both cases participants were convicted of violating the anti-cross-burning law, and the question before the court is whether the statute is constitutional.

As much as cross-burning is an emotional issue, conjuring up the specter of KKK racial violence and a time in our nation's history when terror was used to keep African-Americans down, the legal question here is relatively straightforward. Virginia's law clearly violates the First Amendment by punishing speech, symbolically expressed, that exhorts support for racial segregation, the notion of racial superiority, and hate -- all repugnant ideas, but constitutional to hold and share.

Had the Virginia legislature stuck with it's original anti-cross-burning law, the one passed in 1952, there would not have been a legal challenge. That law was narrowly drawn and banned only the burning of a cross on another's property without permission. In 1968, however, the ban was expanded to cover all public places. The amendment moved the prohibition from one that prohibited trespass, vandalism, arson and a direct threat against a property owner, to one that targeted pure expression.

During oral arguments, Justice Clarence Thomas, the court's only African-American, who rarely joins other justices in verbal give-and-take, spoke passionately about the singular symbolism of a burning cross and how it is uniquely undeserving of constitutional protection. "There's no other purpose to the cross, no communication, no particular message," Thomas said. "It was intended to cause fear and to terrorize a population."

Thomas can be forgiven for reacting emotionally. He grew up in segregationist Georgia where the Klan was a constant menance. The white nuns who educated him through grammar school once found a hearse parked outside their door, sent by local Klansmen who objected to the nuns' commitment to educating blacks. While Thomas' fellow justices seemed sympathetic to his viewpoint during the argument, we hope that for the sake of free speech, when high emotions subside, the court will do the right thing and strike down the statute. Burning an American flag, carrying a Nazi swastika, desecrating a pile of Korans -- there are many extremely disturbing images that inflict pain on or fear in the intended target of the speech. But they all must be tolerated. It is the price we have to pay for our freedom of speech.

Back to Opinion

Contact the Times | Privacy Policy
Standard of Accuracy | Terms, Conditions & Copyright

From the Times
Opinion page