Justices Limit Cross Burners’ Claim to Free Speech

Cross burners who try to frighten or intimidate others can be prosecuted as criminals and are not protected by the Constitution’s shield for free expression, the Supreme Court ruled Monday.

However, a Ku Klux Klan rally that features a cross-burning in an open field cannot be punished simply because of its hateful message, the justices said.

The ruling invalidates laws like those in Virginia, which criminalize all cross-burnings. But by a 6-3 margin the court upheld hate-crime laws in California and other states that target those who burn a cross or display a Nazi swastika on private property to “terrorize” residents.

Under these measures, skinheads and thugs who burn a cross in the yard of a black family can be prosecuted for a hate crime. But the same people cannot be prosecuted if they burn a cross in their own yard.

In issuing Monday’s ruling, the justices split three ways. Five of them, led by Justice Sandra Day O’Connor, would uphold cross-burning as a crime only when it was done “with the intent to intimidate.” Justice Clarence Thomas, though he voted with the majority, said in his concurring opinion that he would have upheld laws against cross-burning in all cases.

Three others, taking the free-speech view, would strike down cross-burning laws because they single out a symbol due to its message. The three were Justices David H. Souter, Anthony M. Kennedy and Ruth Bader Ginsburg.

The court’s opinion limits the scope of the 1st Amendment in cases of “symbolic expression.”

Between 1989 and 1992, the court struck down a series of laws against flag-burning or cross-burning. It said the government could not punish people who use a symbol to convey a loathsome or hateful message.

In Monday’s opinion, the court backtracked somewhat. The move was foreshadowed by an oral argument in December, when Thomas denounced cross-burning as a “symbol of a reign of terror,” not an act of free speech.

Writing for the court on Monday, O’Connor said the violent history of the Ku Klux Klan and its use of a flaming cross justify special punishment as a hate crime and that those who commit such crimes are not protected under the Constitution.

“Threats of violence are outside the 1st Amendment,” O’Connor stressed. “The burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm.... In light of cross-burning’s long and pernicious history as a signal of impending violence ... Virginia may choose to regulate [these] intimidating messages.”

But the court’s opinion had two ironic notes.

First, the Klansman in this case, Barry Elton Black, had his conviction overturned. In August 1998, he led a small Klan rally in a farm field in southwestern Virginia.

One speaker denounced “the blacks and the Mexicans,” and a second had unkind comments about President Clinton and his wife, Hillary. The evening was capped off by the singing of “Amazing Grace” and the burning of a 30-foot cross.

A county sheriff who observed the event from a nearby highway arrested Black for violating Virginia’s strict law against cross-burning. He was convicted and fined $2,500.

The high court said Black’s conviction “cannot stand” because he was not charged with seeking to intimidate anyone. However, two young white men from Virginia Beach could be prosecuted for putting a 4-foot burning cross in the yard of a black neighbor, the court said.

The other irony concerns the Klan’s tradition of cross-burning. The original Ku Klux Klan, formed after the Civil War, did not burn crosses.

It had used whippings, beatings and murder to threaten and intimidate blacks and Northern whites, the so-called carpetbaggers. But the Klan’s tradition of cross-burnings began with a 1905 historical romance, as well as the 1915 film “Birth of a Nation” by D.W. Griffith.

Both featured hooded Klansmen and burning crosses. “Although the first Klan never actually practiced cross-burning,” O’Connor wrote, “the association between cross-burning and the Klan became indelible” after the 1915 movie appeared.

In November 1915, soon after the movie posters went up, the Klan in its new incarnation burned a 40-foot cross at Stone Mountain, Ga., that was visible from Atlanta. Another reign of terror began, and this time the targets were Jews as well as blacks.

Thomas, who grew up in the segregated South of the 1950s, described the Klan as a “terrorist organization,” and he mocked the court’s concern with “the fate of an innocent cross burner.” Those, like the Klansman Barry Black, know what they were doing, he said. “It is reasonable to presume intent from the act itself,” Thomas said. “Cross-burning subjects its targets, and sometimes an unintended audience, to extreme emotional distress [and] a physical threat.”

The majority of the court was not willing to go that far. O’Connor’s middle-ground opinion was joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Antonin Scalia and Stephen G. Breyer.

The three dissenters -- Souter, Kennedy and Ginsburg -- said the Virginia law should be simply struck down on free-speech grounds. State courts have been split on the constitutionality of cross-burning laws. Monday’s decision in Virginia vs. Black will uphold most state measures.

Beyond cross-burning, the court’s opinion may doom a pending appeal filed by anti-abortion activists who posted the names and faces of doctors who perform abortions on “wanted posters” on the Internet. In the listings, which some call the “Nuremberg files,” lines were drawn through the images of doctors killed or wounded.

When some doctors sued, a jury in Portland, Ore., handed down a $120-million verdict. Last year, the U.S. 9th Circuit Court of Appeals upheld the verdict on a 6-5 vote, saying the posters were a “threat of force ... made with an intent to intimidate.”

The American Coalition of Life Activists, representing the antiabortion activists, appealed the case to the Supreme Court, contending that the verdict should be thrown out on free-speech grounds.