CROSS-BURNING AGAIN

Partly because we're talking about this case in my Civil Liberties class, I've had the Court's recent cross burning case on my mind this past week. I've come to the (somewhat reluctant) conclusion that I think that Thomas's dissent is right in at least one respect: the Court should have rejected First Amendment challenges to VA's cross-burning statute, partly because the message of cross-burning, as it has actually evolved over the course of American history, is a threat of violence.

Justice O'Connor's opinion argues that cross-burnings can have a dual message: political and ideological solidarity among white supremacists and the threat of violence against blacks, communists, Jews, labor unions, and others. If I understand her right, O'Connor says that the First Amendment kicks in because the expression of political and ideological solidarity is "core political speech" that requires First Amendment protection from government interference. When the threat is very clear and directed at a person, the government can punish the act of cross burning despite the fact that a message of political and ideological solidarity is also present in the act. Absent a direct threat, however, the government is merely punishing "political speech" when it punishes cross-burning.

At one level, Thomas and O'Connor simply disagree about what cross-burning means. Thomas is willing to say that a threat is always implied, and that, at any rate, the VA legislature thought that a threat was always implied given the Klan's nature as a terrorist organization and its history of activity in the south and in VA. He wants to say that individuals who read the burning cross as a threat are engaging in a valid interpretive act. O'Connor argues that a threat is not always implied or sufficiently clear as to justify a restriction of political speech. In other words, O'Connor must contemplate situations in which people who see a burning cross are simply mistaken when they feel threatened with violence, rape, and murder.

So there is a basic dispute over what cross-burning is and what it means. One option is to look to historical writing for guidance as to the meaning of a burning cross; both Thomas and O'Connor do this, however, and they reach different results. I tend to believe that Thomas got it right as a matter of historical interpretation; it is at least reasonable to read a burning cross in your neighborhood as a threat of future violence. Few who did so could be deemed crazy, at least.

Another option is to defer to the judgment of the VA legislature with respect to the meaning of a burning cross, but this is problematic. Souter's "other" opinion turns this potential argument on its head by questioning the motives of the VA legislature:

The cross may have been selected because of its special power to threaten, but it may also have been singled out because of disapproval of its message of white supremacy, either because a legislature thought white supremacy was a pernicious doctrine or because it found that dramatic, public espousal of it was a civic embarrassment.

Given its otherwise full willingness to espouse white supremacy in the form of segregation laws, the 1950s VA legislature (Souter seems to imply) was more concerned with the "civic embarrassment" of the KKK. In 1952, public attention to white supremacist violence threatened the legitimacy of white supremacist rule itself. Souter is putting a twist on Douglas's dissent in Dennis v. U.S, the famous Smith Act prosecution case decided at the height of the second red scare, where Douglas argues that the teaching of communism should be allowed in plain sight, because "if [it is] understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent, and the chances of its success less likely." In the cross-burning case, Souter is arguing, subtly, that an anti-cross-burning law can be intended to have the effect of muting public criticism of a virulent form of prevalent local racial tyranny; better, perhaps, to have it out in the open where the ugliness of segregation as a whole can be understood.

Now, however, rather than signaling the desire of the legislature to preserve the (racist) status quo, an effective cross-burning statute would signal the seriousness of the legislature with respect to protecting particular groups who know that they may be the target of violence. I don't see why the legislature shouldn't be able to engage in that expressive act, and I don't see why the legislature can't read cross-burning as its (reasonably likely) victims would read it.

NOTE: Nathan Newman is tempted by Thomas's dissent, but ultimately opts for a "middle ground," although it is not clear from his post exactly why (at least to me). He seems to be analogizing to the Cohen ("Fuck the draft") case by folding the determination to use violence into an expressive content category that includes what he calls "political determination." I'd still side with the potential victims of violence here; it's not political determination if you're expressing your intent to engage in violence; that's criminal determination. The immediacy question is likely to be cold comfort for the targets of the message. I like Nathan's blog, so this is really intended to be friendly criticism. . .