The rhetoric from both sides at the Supreme Court yesterday portrayed Ku Klux Klan threats as hateful but left the justices to decide whether setting fire to a cross automatically proved intimidation.
At one point, Justice Clarence Thomas, the only black on the high court, broke his usual courtroom silence to condemn all Klan use of crosses and to ask why a KKK cross was a legal threat only when ablaze.
“In a hundred years of lynchings, this was a reign of terror, and the cross was a symbol of that reign of terror. My fear is that we understate the impact of what the cross is intended to accomplish,” Justice Thomas said, renewing an issue he raised more than seven years ago in an Ohio KKK case involving Christmas displays.
“My theory is that there was no other purpose but to cause fear and terrorize the population,” Justice Thomas said.
Yesterday, four years after one of two cross-burning incidents in Virginia, the Supreme Court heard arguments on whether burning a cross was a constitutionally protected expression or an overt threat that states could ban. The ruling is expected next year.
Richmond lawyer Rodney A. Smolla, representing three men convicted of burning crosses in two separate incidents, called the cross a Klan trademark that “carries horrible connotations of terrorism,” but argued that did not justify outlawing cross-burning as Virginia did in a 1952 law singling out the KKK.
Mr. Smolla appearing for his two clients and another represented by American Civil Liberties Union lawyer David P. Baugh, who is black said Virginia succumbed to “a Pavlovian connection where we feel this loathing and feel this generalized fear when we see the burning cross.”
Mr. Smolla said KKK members routinely burn crosses at the emotional peaks of virtually every rally to hymns such as “Amazing Grace” or “Old Rugged Cross.”
“It is inconceivable that every time the Klan does it that it is a threat,” he said.
“If there is no intention to intimidate, there is no violation here,” Virginia Solicitor General William H. Hurd retorted in a defense supported by briefs from 15 other states, including Maryland.
Mr. Hurd described a burning cross as “this extremely virulent weapon of fear” in an argument that focused on a flaming 30-foot-tall cross on a farm hillside near a Carroll County highway.
“Surely [passing motorists] were not in fear of actual imminent violence,” said Justice Anthony M. Kennedy.
“A burning cross on a hill outside the city intimidates everybody,” Mr. Hurd said, discounting the issue of how imminent the threat might be. “If you constitutionalize this, it’s like saying [its OK to say], ‘I am going to kill you, but it won’t be for a little while.’”
Asked how a defendant could prove he did not intend to intimidate, Mr. Hurd replied, “One thing they could do is not talk about shooting blacks with a .30-.30.”
Justice Antonin Scalia likened cross-burning to “brandishing a gun,” not to speech protected by the First Amendment.
“Our core argument is that there is a fundamental First Amendment difference between brandishing a cross and brandishing a gun,” Mr. Smolla replied. “My stomach may shrink. I would have a sense of loathing,” but cross-burning is punishable by other laws that he said do not offend the Constitution.
“If you were a black man in a dark alley, you’d rather see a man with a rifle than a man with a burning cross?” Justice Scalia asked Mr. Smolla.
Justice John Paul Stevens asked whether burning a cross in the middle of a desert with no witnesses would justify a conviction under Virginia law.
“He could be convicted,” Mr. Hurd said, quickly assuring the court that no police officer or prosecutor would bring such a case.
Several justices sought to differentiate cross-burning from burning a U.S. flag, a Star of David, random geometric patterns or a draft card. Justice Ruth Bader Ginsburg said the law treats a burning cross as a symbol like no other and asked why KKK robes and masks weren’t included in the intimidation law.
“There are several things about the burning cross that make it unique,” Mr. Hurd said. “It’s not just a message of bigotry but a message that bodily harm is coming.”
Although the case involved two unrelated incidents, the justices focused on the Carroll County farm incident rather than on the burning of a 4-foot-tall cross in the yard of a Virginia Beach interracial couple.
Barry E. Black was convicted by a jury and fined $2,500 for the Carroll County rally even though his offense burning a cross at night on a hillside visible from a highway was committed on private property with permission.