Opinion: A compromise on cross burning

Justice Sandra Day O'Connor wrote the decision for a highly fractured court. Her decision failed to stand firmly either for the freedom of individuals to speak symbolically through the burning of a cross, or for the right of the state to end this noxious practice. Instead, O'Connor provided ample opportunity for cross-burners to be singled out for prosecution when their intention is to intimidate, but she also carved out a narrow zone of First Amendment protection for cross-burners with no such intent. It was a fair compromise that does some damage to free speech jurisprudence, but not an excessive amount.

Virginia's law makes it a crime to burn a cross on someone else's property "with the intent of intimidating any person or group." The law also builds in a presumption that any cross burned is done so with the purpose of intimidating a person or group. After being convicted under the statute, three men challenged its constitutionality. Two of the men burned a cross in a neighbor's yard, clearly attempting to intimidate him. The other man, Barry Black, burned a cross at an organized Ku Klux Klan rally, an event that took place in an open field with the permission of the owner.

O'Connor said the statute, to the extent it punishes people who intend to threaten others with bodily harm, is valid. But the conviction of Black was set aside by O'Connor because he had been prejudiced by the statute's implication that all cross burning is intended as a threat. O'Connor recognized that cross burning had a "long and pernicious history as a signal of impending violence" but also that it can be core political speech, such as a statement of white supremacy. When cross burning is intended to express the latter, O'Connor said, it is constitutionally protected.

This exception didn't play well with justice Clarence Thomas, who, during the case's oral argument, had emotionally dismissed the notion that cross burning should have the protection of the First Amendment. Not surprisingly, Thomas also said as much in a separate dissenting opinion. Thomas' view that cross burning is an act of terror and not the expression of an idea is a compelling one. Having grown up in rural Georgia, Thomas knows the chilling power of the Klan's notorious calling card. Still, there is no arguing with the fact that a burning cross these days is as often a political statement as a direct threat of violence. Thomas' view may be sympathetic, but it is driven by emotion, not objective analysis.

The decision that would have been most consistent with court precedent on free speech would have invalidated the Virginia law entirely -- a view shared by three justices. All threatening speech is illegal, whether it is done with words or symbols. To say that those who burn a cross should be particularly susceptible to arrest and prosecution places an unconstitutional burden on that form of speech. But O'Connor wasn't willing to go that far, and the compromise she forged strikes a reasonable balance.

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