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The Supreme Court: Cross Burning
by Brian S. Wise
20 December 2002 

The Supreme Court has heard Virginia v. Black, in which two Good Old Boys, Richard J. Elliott and Jonathan O’Mara, engaged in a night of drinking and partying, after which they were arrested for attempting to set fire to a four foot high cross in the yard of neighbor James Jubilee, a black man with whom, according to the Associated Press, “one of the participants had a beef.” (You’d safely assume this last detail.) The men were arrested, sentenced to 90 days each and fined $2,500 dollars. At issue, the constitutionality of a 50-year-old Virginia law banning cross burning “as a means of intimidation,” which had been struck down by a State court. Said that court, “[U]nder our system of government, people have the right to use symbols to communicate.” (Sure; quite often I communicate with people by setting fire to things in their front yards.)

And now, the Criminal Justice Legal Foundation, who said the Virginia law “is justified without reference to the fact that it may inhibit the expression of bigots more than it does the expression of believers in racial equality. … The burning cross is singled out because its history of usage by a large, powerful terrorist organization causes it to strike a deeper fear into the hearts of the targets.”

So there are the arguments. My confession is that when I first heard of this case, my immediate reaction was, “So how lucky are these two redneck, scumbag, jackasses to be alive today?” One hopes that, had Mr. Jubilee owned a firearm, he would have stepped out onto the lawn and commenced with the firing; but alas, no, and so now not only has the gene pool been left to suffer the damage of Messrs. Elliott and O’Mara’s continued breathing (and possible procreating), but their drunken racial blast is now a federal case.

The question is, When is free speech considered intimidation, intent, or a warning? For whatever my intellectual acumen, I am no Constitutional scholar, so the best guess can only be as follows: whenever flaming implements and someone else’s private property are involved, we have crossed the line into intimidation. Call me old fashioned, but it’s hard to see the circumstance where holding a mini-Klan rally in a black man’s yard is a cause for hot dogs and punch, as opposed to a historically documented expression of racial hatred.

Particular attention in the media was paid to Justice Clarence Thomas and his reactions, not just because he’s a black man raised in a segregated Georgia, but partially because, well, he is a conservative, and we all know how they feel about things like this, right? Thomas came down on the right side of this one, not only suggesting that cross burning in general is “intended to cause fear and terrorize a population,” but that “[w]e had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan,” which seems to suggest we have, as a 226-year-old country, had more than enough cross burning, thank you very much, and that is may be time to grow up a little.

Now, had this not been an attempt at a cross burning, it may have been something more latent, like a rock through a window, or graffiti scrawled on his home; in any event, the intent would have been exactly the same, it just wouldn’t have ultimately afforded the Supreme Court a chance to make what should seem like an obvious point. And that is perhaps the most unfortunate aspect of all this, that in an age we seriously consider to be enlightened, the Supreme Court is actually forced to say that intruding onto another man’s property and attempting to burn a cross there can only be seen one way, and that the States have the right to say that is illegal.

As forcefully as we’ve spoken of one man’s property rights, wouldn’t conservatives be remiss in saying something about the difference between States rights and individual property rights? Well okay, but the point is moot; one cannot sell heroin on his own land no matter what, and he cannot burn crosses if there are State and / or local ordinances saying so. By necessity we come back to the original question, whether or not cross burning is speech. Constitutionally speaking it’s hard to say; certainly one trusts the Court will, for once, refuse the temptation to turn the Constitution into a full service document for social nonsense … again, without being a scholar of the great document, the sincere hope is that a distinction will be made between obtaining a permit to give a few public speeches downtown, speech, and setting fire to religious symbols in homage to, frankly, intellectually invalid and backward thought.

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