Supreme Court Justice Clarence Thomas has helped frame a difficult argument for advocates of the First Amendment with his recent comments on the subject of cross-burning.
Thomas, the only black member of the Supreme Court, strongly condemned cross-burning as a symbol of oppression during "100 years of lynching" in the South by the Ku Klux Klan.
The issue is before the Supreme Court because the convictions of three individuals found guilty in separate cases under a Virginia state law were overturned by the Virginia Supreme Court on grounds the cross-burnings are constitutionally protected free speech. In one case, two white neighbors tried to burn a four-foot cross in the yard of a black man. The other case involves a Pennsylvania man convicted of burning a 30-foot cross on private land during a 1988 rally.
The Supreme Court has been proactive in defending the First Amendment. One high profile free speech case was in 1989 when it upheld the right of a Texas man to burn the American flag as form of political speech. Another high profile case was last spring when the high court struck down key elements of the Child Pornography Prevention Act. As a matter of fact, this is not the first time the Supreme Court has dealt with cross-burning. Ten years ago it struck down a hate crimes ordinance in St. Paul, Minn., that criminalized cross-burning.
Nevertheless, the comments made by Justice Thomas and others during oral arguments in the Virginia cross-burning case may signal a change of philosophy on the part of the Supreme Court. Justice Antonin Scalia, one of the most conservative members of the court, said blacks would prefer to see "a rifle-toting man in their front yard rather than a burning cross." Similarly, Justice Anthony Kennedy, one of the most liberal members of the court, rejected the notion that cross-burning deserves the same constitutional protection afforded flag-burning.
We are among those who do not want to be placed in the position of defending cross-burning, which is symbolic of 100 years of racial hatred and intimidation in the South. It is an evil and disgusting gesture contrary to many of the ideals upon which this country was founded.
While cross-burning is totally unacceptable it is not nearly as ominous as a government that believes it has the right to tell people what they can and cannot think or say. When people are afraid to speak up because what they say and how they say it is against the law they may become reluctant to point out government misconduct.
The absence of free speech is repression. Repression breeds hate and hate breeds unrest. It didn't work in the old Soviet Union and it won't work in the United States. Fear of punishment alone will not ensure law and order. People must be free to air their grievances and propose remedies. The best way to overcome evil ideas is with good ones.
There are other ways to deal with cross-burning than declaring it illegal. In the case of the two white neighbors in Virginia, it appears the suspects could have been charged with criminal trespass or harassment since the act was performed on the black man's property. In addition to criminal charges, the white neighbors likely could have been sued successfully in civil court. As for the rally in which the 30-foot cross was burned, the participants likely did themselves more harm than good by exposing themselves as narrow-minded bigots. They endeared no one to their cause.
That is the way it is supposed to work in this country - the greater good is achieved through a wide open and robust exchange of ideas, even, somtimes, the exchange of bad ideas. R.S.