Cross tolerance

Jacob Sullum
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Posted: May 31, 2002 12:00 AM
In the South Park episode "Here Comes the Neighborhood," white residents alarmed by an influx of wealthy black celebrities decide to burn "a lower case T" in the front yard of one newcomer. The "T," of course, stands for "time to leave." What makes this scenario so absurd is the idea that a burning cross could be stripped of its hateful symbolism. Yet that is the position taken by supporters of Virginia's law against cross burning. Last fall, in a decision the U.S. Supreme Court recently agreed to review, the Virginia Supreme Court concluded that the law violates the First Amendment because "it prohibits otherwise permitted speech solely on the basis of its content." The ruling relied heavily on a 1992 decision in which the U.S. Supreme Court rejected the prosecution of cross burners under a St. Paul ordinance banning the display of symbols that arouse "anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender." Virginia's law, by contrast, does not explicitly refer to bigotry. It prohibits the burning of a cross on someone else's property or in a public place "with the intent of intimidating any person or group of persons." But the ban, which was passed in 1952 in direct response to Ku Klux Klan activity, is unmistakably aimed at the ideas represented by that organization and its most notorious emblem. Despite this history, the ban's defenders maintain that ideas have nothing to do with it. Justice Leroy Hassell, who dissented from the Virginia Supreme Court's ruling, argued that the law "applies to any individual who burns a cross for any reason, provided the cross is burned with the intent to intimidate." Hassell noted that two of the defendants who had challenged the law, Richard J. Elliott and Jonathan O'Mara, were arrested in 1998 for trying to burn a cross in a black neighbor's yard. "They were angry that their neighbor had complained about the presence of a firearm shooting range in the Elliott's yard," the judge wrote, "not because of any racial animus." It's hard to believe that Elliott and O'Mara would have resorted to cross burning if the neighbor had been white; the "racial animus" is implicit in their choice of revenge. Indeed, as the court's majority noted, the record of the case is "replete with references to race and racism." Elliott and O'Mara certainly deserved to be punished for trespassing and vandalism. But prosecuting them for cross burning per se punishes them for endorsing a racist message. The suppression of speech is even clearer in the case of the third defendant challenging Virginia's ban. Ku Klux Klan leader Barry Elton Black was arrested for organizing a 1998 rally that featured a cross burning. Unlike Elliott and O'Mara, he had permission from the property owner, Annabell Sechrist. As evidence of Black's intimidating intent, the prosecution presented the testimony of Rebecca Sechrist, the wife of Annabell Sechrist's nephew. The couple and their two children had recently moved into a nearby trailer. "I was scared our home would get burned or something would happen to it," Rebecca Sechrist testified. "I think they were trying to scare me." It's not clear why Sechrist, who is white, thought the rally was aimed at her, but she was understandably disturbed by the message it conveyed. "They talked real bad about the blacks and the Mexicans," she said. "It's terrible to see. I sat there and cried." The question is whether a display that elicits this sort of reaction ought to be prohibited because it upsets people. If so, there is no shortage of symbols and ceremonies that could be banned on the grounds that people find them "intimidating." Justice Hassell argued that the conduct prohibited by Virginia's law amounts to a "true threat of violence," which is not protected by the First Amendment. This equation is a stretch even when a cross burning is aimed at a particular person, and it is simply not credible when applied to a rally that offends neighbors or passers-by. "Under our system of government," the Virginia Supreme Court said, "people have the right to use symbols to communicate. They may patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry." This tradition of tolerance is something to be proud of, even when the displays it permits are shameful.