January 23, 2004
By Julie Hilden
FindLaw Columnist
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Special to CNN.com(FindLaw) --Early next month, the Supreme Court will hold
oral arguments inVirginia v. Black. The case raises the question whether Virginia's
anti-cross-burning statute violates the First Amendment.
Only 10 years ago, in 1992, the Court decided a very similar case, R.A.V. v.
St. Paul -- deciding whether St. Paul, Minnesota's anti-cross-burning ordinance
violated the First Amendment. So why is the Court taking on what is, in essence,
the same issue a second time?
To put it bluntly, the Court screwed up the first time. In R.A.V., it failed
to answer the knotty question of whether any anti-cross-burning law can ever
be constitutional.
Worse, in R.A.V., the Court gave the false impression that the question of
how cross-burning can constitutionally be punished was much easier than, in
fact, it is. In truth, anti-cross-burning statutes present one of the most difficult
questions in all of First Amendment law -- for cross-burning is a mix not only
between speech and action, but also between message and threat.
The Court's earlier First Amendment/cross burning case
In order to understand the current cross-burning case, it's necessary first
to understand the previous one, R.A.V. v. St. Paul. The decision was unanimous,
with every Justice concurring in the result, and five justices (all of whom
are still on the Court) also agreeing with the precise reasoning ofJustice Scalia's
majority opinion.
R.A.V. -- his initials alone were used because of the confidentiality of juvenile
criminal records -- was a teenager charged with burning a cross inside the fenced
yard of an African-American family. A St. Paul ordinance made it a misdemeanor
to:
place[] on public or private property a symbol, object, appellation, characterization
or graffiti, including, but not limited to, a burning cross or Nazi swastika,
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 . . . .
The Court struck the ordinance down on the ground that it violated the First
Amendment.
The Court's reasoning basically went like this: Cross-burning is symbolic speech
protected by the Amendment -- an action designed to convey a message, albeit
a hateful one. And the ordinance violated the First Amendment by criminalizing
that speech "solely on the basis of the subjects [it] addresses" --
that is, race, color, creed, religion or gender.
Under the First Amendment, Justice Scalia explained, the government cannot
generally forbid speech "because of disapproval of the ideas expressed."
The statute impermissibly targeted only hostile symbolic speech about "race,
color, creed, religion or gender" -- not, for instance, all hostile symbolic
speech.
The effect, Scalia explained, was that some topics were favored over others:
you could be punished for speaking symbolically and hostilely about race, but
not, for instance, about sexual orientation. But the First Amendment forbids
the government from, in effect, setting the agenda for what citizens will speak
about by preferring some topics (or viewpoints) over others.
Pretending states could easily prosecute cross burners
Although it struck down the St. Paul ordinance in R.A.V., the Court seemed
to believe that the decision would pose little problem for states that wanted
to prosecute cross-burners.
Indeed, Justice Scalia pronounced that the teenager in question could have
been prosecuted under "any number of laws." And at the end of the
opinion, he even reiterated the point: "Let there be no mistake about our
belief that burning a cross in someone's front yard is reprehensible. But St.
Paul has sufficient means at its disposal to prevent such behavior without adding
the First Amendment to the fire."
But what are those "sufficient means," exactly? That question brings
us to this Term's cross-burning case -- in which another anti-cross-burning
statute will probably be struck down.
This term's First Amendment/cross burning case
Virginia's anti-cross-burning statute made it a felony "for any person
or persons, with the intent of intimidating any person or group of persons,
to burn, or cause to be burned, a cross on the property of another, a highway
or other public place." It also noted that "Any such burning of a
cross shall be prima facie evidence of an intent to intimidate a person or a
group of persons." (This last sentence raises another constitutional problem,
for it presumes the intent necessary to prove a crime.)
Note the differences between the Virginia statute and the St. Paul ordinance
the Court struck down in R.A.V. Unlike the ordinance, the Virginia statute does
not pick out specially disfavored subject areas such as "race." And,
unlike the ordinance, the Virginia statute focuses on cross-burning specifically
as an implicit threat, and a means of intimidation.
Nevertheless, the Virginia Supreme Court -- over the dissent of some of its
Justices -- struck the statute down. Carefully applying R.A.V., the court found
that the statute, like the St. Paul ordinance, discriminated between types of
speech based on their content -- with one particular type of symbolic speech,
cross-burning, specially disfavored. (After all, the statute does not reach
flag-burning, draft-card-burning, bra-burning, or book-burning, even if there
are done with the intent to intimidate or threaten).
Why the Supreme Court will probably strike down the Virginia statute, too
From a First Amendment perspective, the Virginia Supreme Court is probably
right. The truth is that cross-burning conveys a message -- a horrific message
of racial hatred -- and that message, and only that message, is targeted by
the statute.
But what about the fact that message conveyed is also an implicit threat to
African-Americans -- as the Virginia statute recognizes? Cross-burning inspires
fear and is meant to do so.
The problem, however, is that it is probably not enough, under U.S. Supreme
Court First Amendment precedent, for a threat to be implicit. Speech needs to
be more than threatening, frightening, or intimidating to be criminalized --
it needs to present a direct, imminent threat of violence.
In a line of cases discussing incitement to violence -- referred to, somewhat
misleadingly, as the "clear and present danger" cases -- the Court
has required speech to directly advocate imminent violence before police can
intervene. That line of precedent may be mistaken, especially in the age of
terrorism. But for now the Court is stuck with it.
The threat cross-burning presents, by its nature, is not put into words --
and thus is not specific. Standing on someone's porch banging on the door and
screaming "I'm going to come in and kill you" is patently a crime.
But mutely burning a cross on someone's lawn, or across the street from it,
or in the road, is probably too vague and indirect to be a direct threat.
Does cross-burning mean "I'm going to come in and kill you," or just
"I hate people like you."? Remember, everyone has a right to scream
the latter sentence with impunity -- unless it is so provocative it is liable
to inspire imminent violence.
Is there any way a state can constitutionally prosecute cross burning?
So what is a state to do? The answer is far from as easy as Justice Scalia
suggested in R.A.V. Enforcing the anti-trespassing or anti-arson laws probably
will not be enough.
After all, trespassers do not tend to face stiff penalties. Arson laws tend
to apply to structures like houses, not objects like crosses. And a law that
prohibits burning anything on someone's property, or on the street next to it,
will end up reaching kids with firecrackers, or rude neighbors whose leaf piles
are ill-placed, or even careless smokers who throw their butts out the window.
But what if a state passes a law simply making it a felony "for any person
or persons, with the intent of directly threatening any person or group of persons,
to burn, or cause to be burned, an object on the property of another, a highway
or other public place?"
That is, what if Virginia re-enacted its cross-burning law without the mention
of a "cross," and with language suggesting that what is necessary
is an intent to directly threaten, not to intimidate?
The statute would reach conduct other than cross-burning, but that is exactly
the point: It would not pick out a particular disfavored kind of symbolic speech.
So, for instance, if an abusive husband burned his children's clothes on their
lawn while his wife looked on -- in circumstances suggesting he meant the act
to be a threat to the children -- then he might be able to be prosecuted under
this statute, too.
Such a statute would, at least, have a better chance of surviving Supreme Court
scrutiny than Virginia's. But we still cannot know for certain what its fate
would be -- and for that, we have the Supreme Court's incomplete and misleading
decision in R.A.V. to thank.
Let us hope the Court does a better job the second time. It should strike down
the Virginia statute, for targeting a particular kind of speech. But it should
also make clear what kind of anti-cross-burning (or anti-threatening-burning-of-objects)
statute would be constitutional.
Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C.
law firm of Williams & Connolly from 1996-99. She currently is a freelance
writer.
Find this article at:
http://www.cnn.com/2002/LAW/11/15/findlaw.analysis.hilden.cross.burning/index.html