Once in a while, a case comes along that makes a Supreme Court reporter proud to be involved, even tangentially, in the life of the high court. Oral argument in today's cross-burning case, Virginia v. Black, was most definitely one of those days. First, the facts are wonderful: Some of the alleged cross-burners in this case were either too drunk, racist, or stupid to actually set a wooden cross on fire, even with the help of lighter fluid. Love it. Second, the justices are wonderful: Perhaps it's because Chief Justice William Rehnquist is still home recuperating from knee surgery and Justice John Paul Stevens presides with a lighter touch, but everyone seems to be acting out like they would with a substitute teacher. You half expect a paper airplane to come wafting off the bench. They're rowdy and funny and chattering amongst themselves, cutting each other off, cracking each other up, and generally acting half their age (i.e., mere septuagenarians). It's bedlam out there. Love it. Finally, when you have good oral advocates doing a good job on a good issue, the place always arcs up like tinfoil in a microwave.
In some ways, the issue is simple: Does a Virginia statute that bans cross-burning with the intent to intimidate violate the First Amendment? The court has ruled that some kinds of "expressive conduct"—including flag burning—are protected speech because it is so expressive of a particular message or point of view that to criminalize it is to silence an actual message. For those of you wondering, "Hasn't there already been a cross-burning case?" 10 points. In 1992 in R.A.V. v. St. Paul, the Supreme Court struck down a Minnesota ordinance criminalizing the display of certain symbols (burning crosses, swastikas, etc.) for the purpose of arousing anger "on the basis of race, color, creed, religion or gender." The Virginia statute differs from Minnesota's in that it did away with the laundry list of taboo subjects (which smacked of viewpoint or subject-matter discrimination) and also because of the "intent to intimidate" component, which makes this law look more like it's targeting threats instead of mere speech.
The Supreme Court has also held that some "expressive conduct" (like burning your draft card), while symbolic, is still unprotected speech. And what today's argument comes down to is this: Does the act of burning a cross so clearly communicate both a message and a clear threat of violence that it can be constitutionally suppressed, even if it carries an explicit political meaning?
The facts read like outtakes from A Charlie Brown Redneck Christmas. In one of the two cases, 18-year-old Virginia Beach resident Richard Elliott decided to "get back" at the interracial couple next door for (sigh) complaining about gunshots coming from his backyard. With the help of Elliott's friend (that would be the one with the Confederate flag sticker on his truck) (sigh), he tried to burn a cross on the neighbors' lawn. Somehow the guys were too dumb to ignite wood with lighter fluid. (Leaving on the property an intact cross that would still scare the hell out of a neighboring vampire.) The second case involves a Pennsylvania KKK leader, Barry Elton Black (who doubtless tried at some point to change his name to Barry White). Black led a KKK rally in Carroll County, Va., burning a 25-foot cross that was visible from the nearby highway. Everyone in both cases was convicted at trial and lost again in the court of appeals. But the Virginia Supreme Court consolidated the two appeals and overturned the convictions, ruling 4-3 that the cross-burning statute violates the First Amendment. Relying heavily on the opinion in R.A.V., the Virginia court held that singling out cross-burning for suppression was merely silencing a disfavored political message.
William H. Hurd, the Virginia state solicitor defending the statute, disagrees. This statute is not about speech but about affording citizens "freedom from fear." Justice Sandra Day O'Connor climbs on his back immediately, worrying about the most "troubling" aspect of the statute—a provision stating that the "intent of intimidating" required for conviction can be established, prima facie, by the choice to burn a cross in the first place. Both O'Connor and Justice Anthony Kennedy are obviously bothered by this circularity.
Hurd tries to point out that in the Klansman's case, his intention to intimidate was clear: He went to Virginia specifically because he'd heard rumors of a town where "whites and blacks were holding hands on the sidewalk." Evidently Black has yet to hear of another little town called New York, where blacks and whites have been known to French-kiss on the sidewalk—while dressed in small strips of Cling Wrap. Kennedy and Hurd circle around, trying to sort out whether this is a "fighting words" case or a "true threats" case, both of which represent unprotected classes of speech but neither of which quite fits the facts today.
Kennedy doesn't buy Hurd's argument that the mere act of burning a cross causes intimidation: "So, if you burn a cross on a hill outside the city, everyone in the city is intimidated?" he snorts. Justice Antonin Scalia jumps in to add that the key to this case is, "It's not just speech. It's action that conveys a message. Surely your state can make it a crime to brandish a weapon?"
Stevens is equally bothered by the "tree-falls-in-a-forest" element of this law. "So, even if a cross is burned in a desert somewhere, it's enough to sustain a conviction?" He asks. "Suppose he burned an O?" Well, Siegfried and Roy would have a field day, for one thing.
Hurd explains that crosses threaten harm in a unique way. He painstakingly depicts decades of cross-burnings, terror, and threats. Burning crosses, he argues, conveys the "message that bodily harm is coming." Stevens interrupts to point out the central irony in this case: "It sounds like you're defending the statute because the message it contains is particularly obnoxious."
Deputy Solicitor General Michael Dreeben gets 10 minutes to defend the statute for the Justice Department. He argues that a burning cross is not just speech; it contains a threat of "bodily violence." Dreeben concedes that the United States is not so happy with the "prima facie" evidence clause of the Virginia law, which is odd if he believes his own theory, i.e., that the very sight of a burning cross communicates a credible threat of bodily harm.
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.
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.