Thomas Assails Cross Burning as Terror Tactic

Supreme Court Justice Clarence Thomas, who sits silently during most arguments, spoke up Wednesday to condemn cross burning as the “symbol of a reign of terror” that does not deserve the 1st Amendment’s protection for free expression.

For nearly 100 years, the Ku Klux Klan used cross burning and lynchings to terrorize blacks and Jews throughout the South, he said.

A burning cross is “unlike any symbol in our society.... There was no communication of a particular message. It was intended to cause fear and to terrorize the population,” said Thomas, the only black justice.

His comments came midway through the oral argument in a Virginia cross-burning case and seemed to turn the tide against the free-speech claim.

Ten years ago, the high court unanimously struck down a St. Paul, Minn., ordinance banning cross burning, ruling that this form of symbolic expression, like flag burning, is protected by the 1st Amendment.

But prosecutors in Virginia, California and half a dozen other states continue to enforce laws against burning crosses, saying they are punishing threats and intimidation, not speech. Similar laws also forbid the display of a Nazi swastika; those measures also depend on the outcome in the Virginia case.

“Cross burning is a tool of intimidation. The message is a threat of bodily harm,” Virginia Solicitor Gen. William H. Hurd told the justices.

He was defending two prosecutions in 1998, one involving a Klan rally and the other involving a small cross burned outside the home of a black family in Virginia Beach.

Klansman Barry Black led a cross-burning rally in a farm field. The 30-foot cross, blazing near a state highway, could be seen by passing motorists.

Black was arrested and fined $2,500. In the Virginia Beach case, two men were also fined $2,500 and given 90 days in jail.

But when they appealed, the state Supreme Court overturned the convictions and struck down the cross-burning law last year. “Under our system of government, people have a right to use symbols to communicate,” even if their message is one of contempt for America or an “expression of bigotry,” the judges said.

Professor Rodney Smolla, a 1st Amendment expert at the University of Richmond law school, defended the state court ruling and urged the justices to uphold the principle that even obnoxious and loathsome expressions are protected by the 1st Amendment.

It is “at the core of our 1st Amendment tradition” that the government cannot “single out a symbol” for criminal punishment just because of the message it conveys,” Smolla said.

Why isn’t “brandishing a cross like brandishing a gun”? asked Justice Antonin Scalia. It is illegal to brandish a gun.

Because the gun itself is dangerous, Smolla replied. The cross is not a danger in itself. It’s the message that is seen as dangerous, he said.

“If we were here in 1820, I might agree with you,” commented Justice David H. Souter. But the history of cross burning in America has given this act a particular power, he said, referring to Thomas’ comments.

“Why can’t the state regulate this as a particularly virulent form of intimidation?” added Justice Sandra Day O’Connor.

Cross burning originated in the Scottish Highlands as a means of sending signals from one clan to another. Though the Ku Klux Klan formed after the Civil War, the first reported cross burning in America took place at Stone Mountain, Ga., in 1915. It could be seen as far away as Atlanta, and the act was attributed to the mob that had recently taken Jewish merchant Leo Frank from his jail cell and lynched him.

Cross burning soon became a central feature of Klan rallies.

Bush administration lawyers, siding with Virginia, urged the court to rule that cross burning is conduct “intended to threaten or intimidate, not a regulation of speech.”

Deputy Solicitor General Michael Dreeben said cross burning “is akin to a threat ... a signal to violence.”

Justice Anthony M. Kennedy questioned this notion, because the court has usually said threats can be made illegal only if they are direct and immediate.

“So any time a cross is burned near a highway, it’s a crime?” he asked.

But Thomas then intervened to say that cross burning is unique because of its history. “Aren’t you understating the effects of the burning cross?” he asked Dreeben.

Though Thomas often writes forceful opinions or dissents, he rarely speaks up during oral arguments. Months go by before he asks a question or takes issue with a lawyer’s argument.

Thomas has told friends that the oral arguments are mostly a public show. He says the justices decide the cases based on the written briefs and by analyzing the lower court opinions.

However, visitors to the high court routinely comment on the odd spectacle of eight justices peppering a lawyer with questions while Thomas silently sits. Sometimes, he looks bored. Other times, he and Justice Stephen G. Breyer spend part of the argument trading joking comments.

But Thomas, who grew up in the segregated South, has clearly taken a strong interest in cases involving race, whether it is affirmative action, busing for desegregation or the historically black colleges. Those cases have prompted many of his strongest written opinions.

In 1995, when the court took up a case involving the Klan and cross burning, Thomas spoke up and upbraided his colleagues for discussing it as a purely free-speech issue.

“The Klan has appropriated one of the most sacred of religious symbols as a symbol of hate,” he wrote.

In other areas, Thomas is one of the court’s most consistent advocates of a broad 1st Amendment, but spreading terror goes beyond free speech, he suggested Wednesday.

A ruling in the case of Virginia vs. Black, 01-1107, is expected in several months.