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
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
"I was scared our home would get burned or something would
happen to it," Rebecca Sechrist testified. "I think they were trying to
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