"Surely one can burn a cross in the sanctity of one's bedroom," Supreme Court Justice Antonin Scalia noted this week during oral arguments in the case of Virginia v. Black. The case deals with whether or not cross-burning constitutes free speech.
Scalia's is my favorite quote from the session. Though Clarence Thomas's remarks are getting all the attention from the press, and rightly so I suppose.
The state of Virginia has a law prohibiting the burning of crosses "with the intent of intimidating any person or group of persons." The law was passed 50 years ago, at the dawn of the civil rights era, when public order was threatened by Klansmen and other groups of racists intent on keeping blacks "in their place." The Virginia Supreme Court ruled last year that the law was an unconstitutional violation of free speech rights.
A prominent free speech champion, Rodney Smolla of the University of Richmond Law School, represented three white Virginia men who burned a cross on their black neighbor's lawn. He was joined, predictably, by the ACLU. Smoll argued that while a burning cross may be "horrible, evil and disgusting," it's no different from flag burning in that it constitutes constitutionally protected "free expression."
Michael R. Dreeben, a deputy U.S. solicitor general arguing in favor of the anti-cross burning law, argued that, historically, burning the cross was not expression but "akin to a threat to put somebody in fear of bodily harm" and therefore "is not protected by the First Amendment."
And that's where Clarence Thomas interrupted Dreeben, saying he wasn't going far enough.
"My fear," Thomas boomed, "is you are actually understating the symbolism of and effect of the burning cross." He continued, "I think what you're attempting to do is fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish."
Thomas argued that cross-burning is unique. "My fear is that there is no other purpose to the cross," he said. "There was no communication, no particular message. It was intended to cause fear and terrorize a population."
It was, according to The New York Times, "a gripping made-for-television moment -- except, of course, for the fact that television cameras are not permitted inside the courtroom." It was so gripping because Thomas rarely speaks during oral arguments, because Thomas grew up poor in rural Georgia and because he's the only black justice on the court. According to accounts of those who were in the courtroom, it seemed as if Thomas brought the court around to the view that banning such expression is permissible under the First Amendment. We won't know for sure until the court's opinion comes out.
But what we can agree on now is that this case challenges all sorts of secular pieties on the left and the right. For strong critics of hate crimes legislation -- like myself -- it is a reminder that some acts can have a disproportionate impact on some groups. I'd be pretty upset if the Klan burned a cross on my lawn, but I doubt it would have the same impact on me that it might on an African-American.
For black liberals who denounce Clarence Thomas as a heartless Uncle Tom, Thomas' forcefulness on this subject should be eye-opening. Though I'm not hopeful about this, considering the studied asininity of so many of Thomas' detractors.
And there's even a lesson for those favoring cross-burning. After all, segregationists are fond of touting "states' rights" in defense of Jim Crow. Well, states' rights cuts both ways. If Virginia once had the right to deny black folks the right to vote, it surely has the right to deny racists the ability to burn crosses.
But the most glaring wake-up call is for free speech absolutists. First Amendment law has been rotting from the inside out for more than a decade now. On the one hand, legitimate political speech is increasingly regulated. Campaign finance laws are drawing the noose ever tighter on the only kind of speech the founders really considered essential to a democratic republic.
These campaign finance "reform" laws are making it increasingly difficult, and sometimes impossible, for political organizations to chastise politicians they don't like within 30 days of an election. Criticism of politicians at election time is precisely the sort of speech the First Amendment was intended to protect.
Meanwhile, the Department of Justice's efforts to ban "virtual child porn" are being knocked down by courts and "intellectuals" alike because "free expression" is sacrosanct.
Apparently, it's just political speech that isn't.
Hopefully, it will dawn on First Amendment voluptuaries that this should be the other way around. If perverts want to argue that child molestation laws are unfair, be my guest. That doesn't mean communities can't ban it from the public square. If, however, the Klan or anybody else wants to argue in newspapers, speeches and pamphlets that blacks should be slaves, they have every right. But they don't have a right to terrorize people in their homes. And if they must burn a cross, Justice Scalia is right: They can always do so in the sanctity of their own bedroom.