Washington Justice Clarence Thomas, usually silent during oral arguments before the Supreme Court, spoke sharply during last December's arguments about whether Virginia's 1952 law banning cross burning, which the law stipulates is "prima facie evidence of an intent to intimidate," violates the right of free speech. Thomas, an African-American who grew up in Pin Point, Ga., said: "There is no other purpose to the (burning) cross -- no communication, no particular message. It was intended to cause fear and to terrorize a population."
Virginia enacted the law in response to a wave of cross burnings. Thomas spent his formative years in a South in turmoil. He voted with the majority Monday when the court ruled 6-3 that a law banning cross burnings that are intended to intimidate is compatible with the First Amendment.
Thomas' intensity is understandable, and the majority's conclusion is defensible. However, the conclusion is not clearly compatible with some of the court's previous rulings. And such laws should today be read warily in light of increasing government regulation of expression in the name of this or that social good.
The court has long ruled that First Amendment protection of speech and expressive conduct is not absolute. It does not protect "fighting words" calculated to inflict injury and cause disturbance, or "true threats" -- expression intended to communicate a serious intent to commit unlawful violence. Cross burnings intended to intimidate are comparable to true threats.
But in 1989 the court ruled 5-4 that a Texas law banning desecration of the flag in a way that gives offense to onlookers was unconstitutional because such desecration -- usually, burning -- often is "sufficiently imbued with elements of communication" to qualify as protected "symbolic speech." And in 1992 the court struck down a St. Paul, Minn., "hate crimes" law that criminalized public use of "a symbol, object, appellation, characterization or graffiti, including but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."
Minnesota's Supreme Court supported St. Paul, arguing that its law was consistent with the U.S. Supreme Court's ruling about "fighting words." But the U.S. Supreme Court overturned St. Paul's law because it was not "content neutral." The court said the law selectively punished certain kinds of expression, but not others such as any pertaining to "political affiliation, union membership or homosexuality." Furthermore, 10 years on, consider this: Should it be a hate crime to use an "appellation" or "characterization" of Osama bin Laden's version of Islamic faith that might provoke the "resentment" of his sympathizers?
Virginia says its law did not discriminate on the basis of the content of symbolic speech because the law "applies to anyone who burns a cross with the intent to intimidate anyone for any reason." Oh, please. And the St. Paul law prevented both Jews and anti-Semites from painting swastikas on synagogues. Virginia's law was obviously aimed at cross-burners who express particular views. That is why Virginia's Supreme Court said it violated the First Amendment.
The decade since the St. Paul case has produced abundant reasons for acute worry about the multiplying measures to extend government supervision of expression. Campus speech codes protect the supposedly fundamental right not to have one's feelings ruffled or one's political sensibilities rubbed the wrong way. Hate crime laws criminalize certain government-disapproved attitudes. The banning of Joe Camel was part of government's campaign to extinguish what it considers socially undesirable desires. Political campaign "reforms" protect the public from "too much" political advocacy. A federal judge says the use of gender-based terms ("foreman," "draftsman") can constitute a "hostile work environment," hence sexual harassment.
The court has construed First Amendment protections to extend beyond what the Amendment's text mentions -- "speech" -- to encompass "expressive conduct" that is colored with political attitude. Cross burnings always are such conduct. And are not always intended to intimidate. Sometimes they are just permissible parts of moronic ceremonies intended to amuse morons.
Virginia's law was clearly a constitutional anti-intimidation measure in 1952's climate of pervasive domestic terrorism. As Thomas wrote Monday, in 1952 Virginia was banning only conduct -- intimidation -- not communication: "It strains credulity to suggest that a state Legislature that adopted a litany of segregationist laws self-contradictorily intended to squelch the segregationist message."
But today, all laws designed to protect people from expressive activity should be presumed constitutionally dubious, given government's increasing itch to regulate expression.