- The Washington Times - Tuesday, December 24, 2002

Cross burnings aim to terrorize and cow blacks into mute acceptance of legal and social inferiority. The pending claims in the United States Supreme Court that cross burnings with an intent to intimidate are constitutionally protected free speech are fatuous (Virginia vs. Elton Black, Richard J. Elliott and Jonathon O'Mara). That the arguments were made in 2002 without embarrassment testifies to the woeful ignorance of most Americans about the horrors of Jim Crow.
Thomas Jefferson's execration of slavery and its debasement of both whites and blacks applies to its post-Reconstruction successor in the South: white supremacy in law coupled with social and extralegal degradation. Jefferson scolded: "The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. The man must be a prodigy who can retain his manners and morals in such circumstances."
The Ku Klux Klan and its disciples have brandished cross burnings since 1866 as a warning to blacks either to submit silently to white tyranny or to expect swift and gruesome violence in the form of lynchings, mutilations or otherwise. The vile threats were executed with sufficient frequency to create pulsating hearts in every black man, woman or child who witnessed or heard of a cross burning.
The objective has been to stifle black dissent over vicious and despicable forms of subjugation, indignation and killings that were the signature of the post-Reconstruction South.
Blacks were not to protest their unconstitutional disfranchisement. They were not to denounce or demonstrate against segregation in every walk of life under separate and atrociously unequal conditions.
No criticism was to be allowed of black lynchings or first cousin savageries that escaped condign punishment or miscarriages of justice in an exclusively white system of law enforcement. The scandalous acquittals of two confessed murderers of young Emmett Till and the outrageous Scottsboro rape convictions are illustrative of what white supremacist cross burners hoped to shield from rebuke.
There was to be:
No upbraiding of the South's unconstitutional exclusion of blacks from grand or trial juries.
No assailing of segregated cemeteries, even for blacks who risked that last full measure of devotion so that the nation's constitutional dispensation would remain secure and unmenaced.
No objections to segregated schools that stunted black education and economic uplift and to segregated hospitals that relegated black patients to third-class health care.
No maligning of discrimination in employment, in the professions and in housing that kept the black community in abject poverty.
No chastisement of segregated trains, trolleys, restaurants, hotels, cinemas, department stores, drinking fountains, restroom facilities and public parks and swimming pools, all intended as humiliating badges of racial inferiority.
By context and usage, cross burnings aim to silence blacks over an endless array of loathsome constitutional and social wrongs. A steep price will be paid, warns the tongue-like flames, for emulating the likes of Harriet Tubman, Frederick Douglass, Paul Robeson, Rosa Parks, W.E.B. DuBois, Sojourner Truth, Medgar Evars, Reverend Martin Luther King, Jr., Supreme Court Justice Thurgood Marshall or other unflinching voices questing for equal justice.
Cross burnings are thus the antithesis of free speech because they intend to suppress expression and political debate by instilling fear and terror in would-be speakers. That objective turns the First Amendment on its head. As Chief Justice Charles Evans Hughes sermonized in De Jonge vs. Oregon (1937), the constitutional rights of free speech, free press and free assembly facilitate "the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government."
If cross burnings had completely succeeded in muffling black dissent and protest, President Harry Truman would not have desegregated the armed forces in 1948. Black plaintiffs and lawyers would have been intimidated from bringing the lawsuits that culminated in Brown vs. Board of Education (1954) and the constitutional death knell for "separate but equal." The Civil Rights Acts of 1957, 1960, 1964, the Voting Rights Act of 1965 and the Fair Housing Act of 1968 would have been stillborn. The Little Rock, Ark., high school and the University of Mississippi would have remained monochromatic. Blacks would still be demoralized by caste-like disabilities and ostracism reminiscent of untouchables in India.
It is unthinkable that the Supreme Court of the United States would grant First Amendment refuge to a barbarous threatening symbol designed to thwart debate necessary for peaceful redress of grievances under our Constitution. Cross burnings may resemble expressive conduct like flag burning that have received free speech protection, but a few pages of history is worth volumes of logic in justifying a distinction. "An American Insurrection" by William M. Doyle is on the recommended reading list.

Bruce Fein is a founding partner of Fein & Fein law firm in Washington.

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