Some time after Trent Lott's 157th apology for what he said to Strom Thurmond last month, the U.S. Supreme Court took up the not-very-burning issue of cross burning, and the New York Times splashed the news all across its front page the next day.  

A case before the court is challenging a statute of the state of Virginia that makes burning crosses a criminal act, and the reaction to the case from Justice Clarence Thomas was the ostensible reason for the media attention to it.

Justice Thomas doesn't much care for cross-burning, a practice associated with the Ku Klux Klan and its efforts to avoid "all those problems" to which Sen. Lott may have been alluding a few weeks ago. "There's no other purpose to the cross, no communication, no particular message," the Court's only black justice remarked. "It was intended to cause fear and to terrorize a population."

In pronouncing this judgment before the discussion of the case had even been concluded, Justice Thomas seems to have closed the book before anyone (including maybe Justice Thomas) had a chance to read it. 

Specifically, the case involves a challenge to Virginia's 1952 statute outlawing the burning of a cross for purposes of intimidation. The Virginia Supreme Court upheld the law, and the defendants are now bringing their appeal to the U.S. court.

In one of the cases, a leader of a local Ku Klux Klan group burned a cross on private property at a Klan rally in 1998. On that occasion, the cross-burning was not intended to intimidate or terrorize anyone. The Klan leader was fined $2,500.

The other case before the Court involves a pair of white men who burned a cross in the yard of a black neighbor, in the course of using racial slurs. In that case intimidation as well as criminal trespass seem to be pretty clear. Each was convicted and got a brief jail sentence and a fine. The Virginia court consolidated their cases into the one case now before the U.S. Supreme Court.

Their argument is that in 1992 the Supreme Court struck down a similar law in St. Paul, Minnesota that outlawed placing on public or private property any object "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." That case also involved the burning of a cross, and the Court, following the Minnesota Supreme Court, struck it down on the grounds that it went well beyond the legitimate purpose of penalizing words that might incite to violence or injury — what are generally called "fighting words."

The lawyers for the Virginia case claim that the same reasoning applies to that state's cross-burning statute.

That's why Justice Thomas's remarks during the argument phase of the hearing seemed to have prejudged the case.

The whole point of the defense is that cross-burning can sometimes have purposes other than "causing fear and terrorizing a population."

The irony of the case is that the Klansman actually seems to be the one who really didn't intend to terrorize anyone when he set the torch to the cross. It was the two non-Klansmen who had intimidation or inciting fear in mind when they decided to light up their neighbor's back yard in the middle of the night.

Justice Thomas voted against the St. Paul ordnance in 1992. Either he forgot that last week or he thinks the Virginia case involves a different principle.

He may be right. The St. Paul law, to judge from its own language, seems to have intended to outlaw actual speech other than simply what could incite violence. The Virginia law is couched in language that makes intimidation and fear its specific targets.

It's not clear why the Klansman should have been convicted under it, but it is clear why the other two defendants were.

Burning crosses might possibly communicate some message other than fear and terror, but what's not clear is why anyone today thinks cross-burning is a useful means of expressing the Inner Me. As a practical means of expressing any coherent thought or message, a burning cross is not very useful.

But the Court might be well advised to strike down the law simply because there is already too strong a trend toward outlawing the expression of unpopular thoughts — at least in places like Europe and Canada, where jails are full of "thought criminals" who have said or written forbidden things about race, immigration or other sensitive subjects.

There are people in this country who would very much like to see such laws enacted here.

The sooner the laws that might serve as precedents for doing so are removed, the less threatened our own freedom will be.

COPYRIGHT CREATORS SYNDICATE, INC.

January 02, 2003