- The Washington Times - Thursday, December 19, 2002

The U.S. Supreme Court recently heard oral arguments about cross-burning, a tactic of intimidation traditionally employed by the Ku Klux Klan to terrorize blacks. But chances are that, if you didn't carefully scan the Dec. 12th newspapers, you may not have heard about what happened at the Supreme Court the day before in particular, the powerful, compelling statement by Justice Clarence Thomas about the history of cross-burning.
On Dec. 11, the court heard arguments presented by the Bush administration and Virginia Attorney General Jerry Kilgore that the Old Dominion's 1952 law prohibiting the use of cross-burning in an effort to intimidate is constitutional. On the opposite side were three cross-burners, represented by the American Civil Liberties Union, who contended that it is a constitutionally protected form of free speech.
The Virginia case before the Supreme Court involved three separate convictions under the Virginia cross-burning law. Two men, who were not members of the KKK, were convicted of burning a cross on the front lawn of a black neighbor after he complained about noise from a firing range in their backyard.
The third person convicted was a Pennsylvania man who led a KKK rally in Carroll County, Va., where a cross was set afire in full view of residents and passing motorists.
Michael Dreeben, an assistant U.S. solicitor general, argued in defense of the Virginia law. After he had finished speaking, Justice Thomas, a Georgia native, said Mr. Dreeben had actually "understated" the insidious nature of cross-burning. "There is no other purpose to the cross no communication, no particular message. It was intended to cause fear and terrorize the population," Justice Thomas declared. "We had almost 100 years of lynching and activity in the South by the Knights of Camelia and the Ku Klux Klan, and this was a reign of terror, and the cross was a symbol of that terror."
During the brief minute or so that Justice Thomas spoke, "the other justices gave him rapt attention. Afterward, the court's mood appeared to have changed. While the justices had earlier appeared somewhat doubtful of the Virginia statute's constitutionality, they appeared somewhat convinced that they could uphold it as consistent with the First Amendment," the New York Times reported.
Afterward, University of Richmond professor Rodney Smolla, an attorney for the cross-burners, told the court that the Virginia law should be stricken down just as the high court had done a decade ago in creating a right to burn the American flag.
But the reality is that neither flag-burning nor cross-burning should be considered constitutionally protected free speech. There is no evidence that the Framers were First Amendment absolutists. And burning the American flag isn't speech in the way that writing an article or calling a radio show or giving a speech happens to be; flag burning is properly understood as nihilism, and an act of contempt and hatred for the symbol of this country. Cross-burning is just a different form of anti-social behavior, an effort to terrorize members of certain racial and ethnic groups. Neither merits protection under the First Amendment.

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