THINGS I'VE LEARNED ABOUT CROSS-BURNING

. . .This may not be new to you, but it's still interesting to me. The Court's recent cross-burning case, its complexity, and the public reaction to it, led me to wonder about a few things. What practical effect will the Court's decision have? What did the Court actually do? What other laws are already used to prosecute cross-burning? Will these laws be affected by the Court's ruling?

As far as I can tell, and I may be wrong on this, the Court's ruling won't have any practical effect on the legal dangers that you face if you engage in cross-burning. What the Court really did here was to continue the disciplining of states that have cross-burning statutes. After R.A.V. v. St. Paul (1992), the Supreme Court's earlier cross-burning ruling, state judges attacked cross-burning statutes that they considered vague; the VA Supreme Court did this in the ruling that the U.S. Supreme Court acted on last week; Maryland and South Carolina courts acted in a similar fashion in the early 1990s (see footnote 10 in the Harvard Law Review note cited at the bottom of this post).

What the Supreme Court said to VA, then, is that it can have a cross-burning statute, but it has to tie the cross-burning to intimidation. As far as I understand it, what the Supreme Court did was, in effect, to apply what are essentially the working principles of federal cross-burning prosecutions to an analysis of state cross-burning laws.

Federal prosecutors go after cross-burners under several statutes, as the recent case of U.S. v. Dartez from the U.S. District Court, Western District of Louisiana, shows. Read the Lafayette Advertiser article on the defendants' sentencing last week here, the DOJ press release on the sentences here, and the transcript of Judge Melancon's remarks here (PDF file). Melancon's remarks are really worth a look. He quotes Justice Thomas's remarks from his dissent in VA v. Black, to the effect that the KKK is the "world's oldest, most persistent terrorist organization."

Dartez and four others were prosecuted under three federal statutes: 18 U.S.C. § 241, which punishes interference with civil rights; 42 U.S.C. § 3631, which prohibits interference with housing rights; and 18 U.S.C. § 844(h)(1), which enhances the sentence of anyone who uses fire or explosives in the commission of a felony. Robert A. Viktoria was convicted under these statutes as well, after the Supreme Court threw out his conviction under the St. Paul hate speech ordinance at issue in R.A.V..

A few more things strike me as interesting about this whole question as it emerged last week. First, of course, is Thomas's and Melancon's attempt to hook into the legitimacy of anti-terrorist arguments. This is an old story, of course: in the late 1960s, the FBI went after the Klan as well as civil rights groups and American communists. I don't know too much about this whole story, but the similarities are interesting: responses to perceived threats to the state have also brought attacks on the KKK, attacks that use the same kind of techniques and same kinds of language. The FBI has been talking about the KKK and other white supremacist groups as terrorists for some time now. See, for example, the FBI's 1999 report on domestic terrorism (PDF file).

In addition, I can't help but have the sense that there is a real dishonesty in the way that the First Amendment claims of cross-burners have gotten discussed. Robert Viktoria was eventually sent to prison for the same acts that the Supreme Court said that St. Paul couldn't prosecute him for under its hate-speech law. He wouldn't be crazy to view his eventual incarceration as partially a response to his beliefs about blacks, regardless of what the official justifications are. Plus, we know why the KKK engages in the kinds of acts it engages in: they have a developed racial ideology that entails both a set of "political beliefs" (the desirability of political structures that express racial hierarchy) and a prescription of certain violent means. This prescription becomes concrete in a cross-burning. The reason the feds go after the KKK with harsh punishments for cross-burning is, I would gather, not just because of the actual harms that are outlined in the relevant statutes. The feds know that the KKK is likely to engage in violence, as an empirical matter, and they know that official tolerance of cross-burning would in essence be a signal of tacit support for that violence. They go after cross-burning to send a message about the state's relationship to the KKK. Note the words from the U.S. attorney who prosecuted Dartez, from the press release:

"This cross burning by the KKK is an act of domestic terrorism. Prosecuting terrorism, international or domestic, is the Department of Justice’s highest priority. The KKK's only real purpose is to cause terror and strike fear into the hearts and minds of people who only want to enjoy the blessings of liberty guaranteed by the American Constitution. The KKK has a long and sorry history of criminal behavior. These acts will be vigorously investigated and prosecuted by this office," stated U.S. Attorney Washington. "The message from the Court today is clear. If you threaten or intimidate an American by burning crosses or other acts of terror, you will serve time in jail."

Perhaps it's good to make the states jump through certain hoops if they want to go after cross-burning and the groups that use that symbol as both a means of solidarity-building and intimidation. But I find it hard to see much substance in the doctrinal somersaults that the Court has gotten into here. It's not that I'm anti-intellectual (by no means!). It's just that it's pretty clear what both the states and the feds want to do here -- go after the Klan and similar groups -- and, looked at as a whole, the federal court system hasn't really impeded the federal efforts. So why all the elaborate, self-congratulatory rhetoric about content-neutral categories and upholding free-speech values? I'm being a little cynical, but I really am having a bit of a hard time figuring out the Court's actual role here.

For further discussion of these statutes, see "Federal Prosecution of Cross-Burners," 107 Harv. L. Rev. 1729.