- The Washington Times - Tuesday, August 6, 2002

Cross burnings in the United States have historically terrified and convulsed. The flames amidst a crescendo of racial epithets characteristically presaged lynchings and other villainies against the black race. The intended intimidation was accentuated by the notoriety of monochromatic white police forces to ignore crimes against blacks. Cross burnings were never exercises of free speech to stimulate colloquy over what author Gunnar Myrdal styled "An American Dilemma."

The State of Virginia answered the cross burning evil with a criminal prohibition. Generally speaking, it makes that socially incendiary act a felony if the defendant "intended" to intimidate any person or group. In 1998, Barry Elton Black organized and led a Ku Klux Klan rally in Carroll County. Speeches dripped with racial, ethnic and religious bigotry.

Culminating the terrorist-like event was the torching of a cross 25 to 30 feet tall.

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Black was convicted under the state's cross burning statute, but the Virginia Supreme Court reversed. Writing for a thin 4-3 majority in Black vs. Virginia (2001), Justice Donald W. Lemons held the entire prohibition a First Amendment violation. According to the Justice Lemons, cross burnings may not be singled out for punishment because a legislature exceptionally despises racial hate speech and its substantiated potential for convulsing the community. That singling out, Justice Lemons preached, constitutes impermissible viewpoint or content discrimination: "While a statute of neutral application proscribing intimidation or threats may be permissible, a statute punishing intimidation or threats based only upon racial, religious or some other selective content-focused category of otherwise protected speech violates the First Amendment."

But isn't that nonsense on stilts? Virginia selected cross burnings for special punishment because the social harms occasioned by such racial intimidations were especially great, including the possibility of race riots and the discouragement of blacks from exercising their civil rights.

Sensible politicians do not craft laws to achieve intellectual tidiness, but to respond to concrete and pressing problems. Thus, the cross burning statute excluded the burning of a circle or square to avoid cluttering the criminal code. Instead of praise, however, the Virginia legislature received condemnation from Justice Lemons because of its fixation on race-based hate messages. All hate speech must be equally punished, he insisted, even if the motivation is detestation of classical music or purple socks. Alas, another chapter has been written for Franz Kafka's "The Trial."

The laws regularly single out racial hatred for sanctions. Federal civil rights laws, for instance, prohibit employment or housing discrimination on the basis of race even when the denial of a job or accommodations constitutes a form of symbolic hate speech against blacks.

The laws do not run afoul of the Constitution because they do not equally punish discrimination based on sexual orientation or chastity when the culprits intend their conduct to symbolize expressions of opinion.

In Wisconsin vs. Mitchell (1993), the U.S. Supreme Court unanimously sustained Wisconsin's penalty-enhancement statute triggered by racially motivated crimes. Writing for the court, Chief Justice William Rehnquist denied that singling out racial bigotry for special sanction violated the First Amendment's protection of free speech. He explained:

"[T]he Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the state and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. The state's desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases."

The high court further declared in Dawson vs. Delaware (1992) that "the Constitution does not erect a per se barrier to the admission of evidence of concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." And in Barclay vs. Florida (1983), a judge relied in part on a defendant's membership in the Black Liberation Army and hope to provoke a race war in imposing a death sentence.

These Supreme Court precedents uphold Virginia's cross burning statute against First Amendment attack many times over. Moreover, Justice Lemons in Black vs. Virginia was unable to articulate a single First Amendment value that is seriously compromised by punishing cross burnings if, and only if, an intent to intimidate is proven beyond a reasonable doubt. Cross burnings with innocent First Amendment objectives of exchanging or expressing viewpoints, no matter how vile, remain undisturbed.

The law in pursuit of arid logic at the expense of experience is a laughingstock. Isn't that why the U.S. Supreme Court should overturn the Black decision when it reviews the case in the term beginning next October?

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