The morning of Sept. 15, 1963, an explosion ripped apart the Sixteenth Street Baptist Church in Birmingham, Ala., killing four schoolgirls. Forty years later, a jury found Bobby Frank Cherry guilty of helping a group of Ku Klux Klansmen plant the bomb, which was set to detonate as members of the all-black church arrived for service.
On the heels of Cherry's conviction for the KKK bombing, The Supreme Court announced last week that it will consider the constitutionality of a Virginia law that forbids the most tangible symbol of the KKK, a burning cross.
Everything about this case will be ferociously contested. Already, the battle lines are being drawn. On one side is the ACLU, which quivers at the notion of peeling back First Amendment freedoms of speech and expression, even for groups as repugnant as the KKK. As American Civil Liberties Union lawyer David P. Baugh has observed, "People cannot be protected from actions or words that make them uncomfortable, by people who engage in what is called hate speech." On the other side, are those who argue that the First Amendment rights are not absolute. They feel that while a federally mandated right to burn crosses might expand our freedom of expression, it would do so at a cost that is socially unacceptable.
Traditionally, the KKK placed burning crosses outside or nearby the home of someone they wished to scare. It was a brutal assertion of one tribe's power upon another; a means and proof of power that went hand in hand with other brutal and terrifying tactics, such as public beatings and lynching. In this context, the burning cross was not just a mere expression, it was a virulent device specifically intended to intimidate minorities from entering the economic, social or political mainstream.
Would laws preventing this sort of anti-human behavior really short-circuit this country's 200-year history of intellectual freedom? The ACLU says yes. Their theory is that inhibiting anyone's First Amendment rights could send America careening down the slippery slope of censorship. And indeed, it can be a dangerous game when the judicial branch presumes to make the law in order to support their concept of the greater good. Justice Brennan once put it succinctly: "If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The major implication: In an open, democratic society, we cannot protect people from uncomfortable or hateful words and ideas. Do so and we defeat our own democratic purposes. At least, that's what the ACLU tells us.
Of course, the freedom of expression is not absolute. It may in fact be outweighed by considerations of social order. For example, a man may be arrested for walking up to a stranger on the street and howling obscenities at him. No one would deny that the assailant was expressing himself. However, his freedom of expression would be outweighed by the inherently inflammatory means by which he conveyed his message. He would be arrested not for his thoughts, but for his conduct.
So, contrary to what the ACLU posits, the real question is not whether our First Amendment rights are absolute. Clearly, they are not. The real question is whether igniting a burning cross constitutes an imminent breach of peace.
In answering this question, we must consider that the burning cross is bound up in the assertion of a different social order - one that regards minorities as subhuman creatures. To burn a cross is to convey those ideas in a manner that is both overtly violent and inherently inflammatory. To suppose otherwise is to argue that Klansmen can burn crosses and spew hatred responsibly. This is absurd precisely because cross burning is more than an idea. It is an aggressive act of civil disturbance.
If burning a cross is deemed a First Amendment right, there will be nothing to prevent Klansmen from continually antagonizing minorities in there own residential neighborhood. Where is the line between expressing oneself and causing mental, even physical, anguish? Or even between expression and harassment?
Hopefully, the Supreme Court will make that line clear by concluding that certain forms of obvious hateful expression simply do not need to be protected.