I see Steven has already said it, Neocon, but let me repeat it: the whole point is that, historically, cross-burnings have often involved incitement to violence. That is one of the key differences between cross-burnings and flag-burnings.
When Michael first brought this question up, I personally was unfamiliar with how this issue has been handled in the courts.
A little web-scouting soon revealed that where incitement to violence has not been directly involved, The Supreme Court has bent over backwards to uphold crossburners' rights to “free speech” -- as has the ACLU, I might add.
So here neither Steven nor Michael are quite correct in saying that "cross burning is illegal."
The Supreme Court -- and state courts too -- have overturned a number of anti-cross-burning statutes. (It is interesting that in Virginia, the Grand Wizard himself was defended by an ACLU attorney -- who, just happened to be black.)
The best-known case, as you no doubt are aware, may be R.A.V. v. StPaul (1992). Robert Viktora, who with a companion had burnt a cross on a black neighbor's lawn, had been charged under a city disorderly conduct statute. The relevant passage read: “Whoever places on public or private property a symbol, object, appellation, characterization, or graffitti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender, commits disorderly conduct and shall be guilty of a misdemeanor.”
Viktora appealed on the grounds that the ordinance violated his First Amendment rights. The Court agreed unanimously agreed on the basic point at issue: that the law was unconstitutionally "overbroad," in that it penalized speech that merely aroused “anger, resentment, and alarm.”
But the Court split on the question of whether it was unconstitutionally "content-based." Four of the justices argued that it was permissible to punish unprotected speech (threats, “fighting words”), on the basis of its content. As Justice Blackmun put it, "I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns...." The other five justices -- a slim majority -- argued that even though threats and “fighting words” constituted "unprotected" areas of speech, the law should treat all "unprotected speech" equally, not just that expressing hostility to a particular race, creed, or gender.
So did Viktora get off scot free? Not really. He was eventually nailed for violating federal civil rights laws. One of the offenses he was charged with -- interfering with the housing rights of his black neighbors -- was a federal felony, and carried a much heavier penalty than the misdemeanor charge he faced in St. Paul.
After all, you really can't just let people rant around in front of other people's homes, burning crosses, shouting insults, and scaring the recipients of their unwelcome attentions half to death! But do we really need local cross burning bans? The phenomenon is really not that widespread today. At this point, it seems to me that federal civil rights statutes may be all we need to discourage such activities, not to mention the cross burnings that do involve inciting others to violence. Because there are those, too.
jbe |
