- The Washington Times - Tuesday, December 17, 2002

Slowly but surely we are discovering what it takes to get a rise out of the usually mute Supreme Court Justice Clarence Thomas.

This time it took a burnt cross.

In his decade or so on the high bench, Justice Thomas has earned a reputation as the One Who Does Not Speak.

When he does speak in public, it is usually to nonpartisan youth groups or adult conservatives. On one such occasion, during a broadcast by CSPAN a few years ago, he told some middle-school students that he grew up avoiding public speeches because he had an embarrassing speech impediment. As someone who grew up with the three impediments of stuttering, dark skin and the first name "Clarence," I sympathized.

But my fellow Clarence rose to full voice in the case of Virginia vs. Black.

The question was whether a state may make it a crime to burn a cross without stomping all over the protection that the First Amendment gives to symbolic expression.

As usual, it was not clear which way the court was going to lean in this case, which concerns a 50-year-old Virginia law.

Then Justice Thomas spoke. A burning cross is indeed highly symbolic, he said, but only of something that does not deserves any constitutional protection, recalling the "reign of terror" that the Ku Klux Klan visited on black communities for almost 100 years before Virginia passed the law.

A burning cross is "unlike any symbol in our society," he said. "There's no other purpose to the cross, no communication, no particular message," he continued. "It was intended to cause fear and to terrorize a population."

On that point, Justice Thomas gets no argument from me. The burning cross is intended to cause fear, rage and terror. The question is how we should best respond to it.

Justice Thomas' statement seemed to have a riveting effect on his fellow justices. By all accounts, those who previously sounded doubtful about the constitutionality of Virginia's statute now sounded more convinced that they could uphold it without dancing a flamenco on the Bill of Rights.

Nevertheless, while I am no fan of burning crosses or of those who burn them, I cannot help but wonder whether there's a better way to put handcuffs on threatening behavior by bigots and others without getting embroiled in the quality of the "speech" they are trying to convey.

Besides, if this court decides to ban cross burning, I shudder to think what it might decide to ban next.

Bans against flag-burning, for example, came within one vote of being upheld by the high court in 1989.

That time around, both the liberal Thurgood Marshall, whose seat Justce Thomas fills, and the conservative Antonin Scalia, with whom Justice Thomas most often votes, voted against the flag-burning ban.

That, to me, was a relief. As a patriot and a Vietnam-era veteran, I find the act of burning Old Glory to be despicable. Yet I am also proud of how the Constitution allows flag burners to make their clearly political statement without worrying about being thrown in jail. That freedom offers ironic evidence of why the flag is worth fighting for.

And what if the draft comes back? Will draft-card burners risk having that form of speech curtailed? Maybe not. In the 1968 decision, U.S. vs. O'Brien, the high court sidestepped that issue by allowing that the draft-card burning protestor had violated the Selective Service requirement that we who happened to be draft bait had to keep the card in our "personal possession at all times."

Similarly, there are ways to outlaw threatening or intimidating behavior without banning speech. A cross burner on my property, for example, is guilty of trespassing and probably vandalism and other offenses and should be prosecuted as such.

In addition, "hate crime" laws have been upheld when they have provided for additional punishment for criminal acts, like cross burning, that obviously were motivated by bigotry.

Any law that tries to judge thought is problematic. Banning the expression of an idea, however despicable, invites future bans on other ideas that might not be as despicable.

The foundation of our Constitution, Justice Oliver Wendell Holmes Jr. once wrote, is "free thought not free thought for those who agree with us but freedom for the thought that we hate."

As a black American, I appreciate the emotional power of the burning cross as a symbol. I also resent the notion that any bonehead with a match, lighter fluid and a couple of sticks can send me into irrational spasms of rage.

When I refuse to lose my mind over the bigotry of others, that bigotry loses some of its power over me. I hope it loses that power over the Supreme Court as well.

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