Are cross-burnings speech or violence?
Out of nowhere booms the great, surprising "Luke-I-am-your-father" voice of He Who Never Speaks. Justice Clarence Thomas suddenly asks a question and everyone's head pops up and starts looking madly around, like the Muppets on Veterinarian Hospital."Aren't you understating the effects ... of 100 years of lynching?" he booms. "This was a reign of terror, and the cross was a sign of that. ... It is unlike any symbol in our society. It was intended to cause fear, terrorize."
Dreeben, who fears he has somehow been insensitive, tries to recover. "It was used to intimidate minorities ..." he begins. "More than minorities," booms back The Voice. "Certain groups." It's not clear what, precisely, has set Thomas off about Dreeben's presentation or why he's attacking the deputy SG rather than the guy defending the Klansman. But as quickly as he wound up, he winds down, and resumes his standard posture of staring fixedly at the ceiling.
Dreeben tries to argue that the mere expression of racial hate is not punishable. But cross-burning is different, he adds. Which prompts Scalia to win Line of the Day with the rejoinder: "One can always burn a cross in the sanctity of one's bedroom."
Rodney A. Smolla, from the University of Richmond, defends the cross-burners and proves that great oral advocacy is a thing of beauty, even when it's being used to defend dolts. Scalia demands to know why brandishing a burning cross is protected speech while "brandishing a weapon and saying 'you're next,' " isn't. Smolla contends that "properties of a gun make it different."
Justice David Souter replies that burning crosses have become as potent a symbol as guns, engendering a "Pavlovian" response. Smolla replies that lots of symbols are potent—the flag, the Star of David. Replies Souter: "But they don't make you scared." (Unless you're a Klansman, I suppose.)
"I daresay," cuts in Scalia, "if you were a black man you'd rather see a man with a rifle on your lawn than a man with a burning cross." Smolla replies that even so there are content-neutral ways (trespassing laws, etc.) to protect against such harassment. Then Justice Stephen Breyer begins to wax ontological with the claim that "the First Amendment doesn't protect words. It protects the use of words for symbolic purposes …" (Brief terrifying flashback to college lit classes—Foucault, Lacan, incoherent assistant professors in tortoiseshell glasses, Derrida, fake French accents. Please. Help me.)
Smolla argues that every KKK rally ends with a cross-burning; that it's inconceivable that this actually scares people. Ginsburg points out the "huge" difference between burning a flag, which symbolizes political protest, and burning a cross, which signifies "a threat to life and limb." Again Scalia wonders why brandishing a gun differs from burning a cross. When Smolla notes that guns kill, Scalia says, "An unloaded gun then. It's nothing but a symbol!" Smolla insists that guns are actual threats and adds, "What's the difference between brandishing a cross and a torch?"
"A hundred years of history," replies Stevens.
And there's the rub. No one can deny that cross-burning is criminalized solely because of the message it conveys. And it's clear from the justices today that the more they think about this message, the madder they get. Well, doesn't that prove Smolla's point? That this statute exists only to censor one particularly virulent, hateful message? Not quite, if the justices can massage this "message" into a "threat," as they appear inclined to do. There is a reason we keep talking today about things that happened 100 years ago; it's because cross-burnings still symbolize and celebrate that terror and violence, even when they no longer actually threaten it. Oddly, at least for the court, the reminder of a past threat seems to be enough.
Dahlia Lithwick writes about the courts and the law for Slate.