NONFICTION - Aug. 28, 1994

BEYOND THE BURNING CROSS: The First Amendment and the Landmark R.A.V. Case by Edward J. Cleary (Random House: $25; 301 pp.) In June 1990, an African American family found a small cross burning on the lawn of the house they had recently bought in a working-class neighborhood of St. Paul, Minn. Countless local residents were shocked, and after 17-year-old Robert Anthony Viktora (identified only as R.A.V. because of his age) was arrested for the crime, they were pleased to learn he would be prosecuted under a recent city ordinance making it a misdemeanor to display a symbol “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.” Edward J. Cleary, a St. Paul attorney specializing in criminal defense, was himself angered at the cross-burning . . . but soon angry in a different way, when he discovered, as Viktora’s court-appointed lawyer, that he would be almost alone in his battle to have the ordinance declared unconstitutional on the grounds that it grossly infringed the First Amendment. “Beyond the Burning Cross” is Cleary’s account of his unpopular and controversial case, one he would win resoundingly with a unanimous decision from the U.S. Supreme Court, and if the writing in the book is only workmanlike, it illuminates well the legal complexities and political conflicts of much constitutional litigation. Cleary settles some old scores--against illustrious law professors who wanted to replace him, against civil-liberties organizations that proved unsupportive--but the book’s over-riding point is well taken: that liberals often shoot their own cause in the foot by promulgating “politically correct” ideas and legislation. Patriarchy or not, racist regime or not, by this time you’d think everyone would agree that dissent must be allowed regardless of its political or social origins--that the cure for damaging speech, to paraphrase Louis Brandeis, is not more laws but even more speech.