"Burning to Say Something,"

(this is a slightly expanded version of an article that appeared in the

Wall Street Journal, April 9, 2003, at A12)

by Eugene Volokh, UCLA School of Law



Monday, the Supreme Court partly upheld and partly rejected a Virginia ban on cross-burning. It’s tempting to see this case as a victory for those who want to restrict “hate speech” -- tempting but incorrect. In fact, the Court reaffirmed that there’s no “hate speech” exception to the Free Speech Clause, though there is an exception for threats of violence, whether bigoted or not.

There were two important issues before the Supreme Court, corresponding to the two incidents that were consolidated in this case. In the first incident, Barry Black burned a cross at a KKK rally held on private property, with the owner’s consent. Black was prosecuted for violating a Virginia law that bans cross-burning with the intent “to intimidate any person or group of persons,” but it wasn’t clear that he had this intention: He may have been primarily trying to send a message of racist solidarity to his fellow Klansmen. The judge, however, instructed the jury -- pursuant to Virginia law -- that any cross-burning is “by itself . . . sufficient evidence from which you may infer the required intent.” Black was thus essentially prosecuted for the cross-burning itself.

This, the Supreme Court held, was unconstitutional, and in terms that strongly reaffirm that even hateful, bigoted speech is constitutionally protected. Burning a cross is considered “speech” for First Amendment purposes, just like displaying a cross, burning a flag, or flying a flag. These forms of expression are very different morally, but they are all statements in a well-established language of symbols -- for over 70 years, the Supreme Court has said that symbolic expression is covered by the free speech guarantee. And burning a cross as a statement of racist ideology and solidarity, Justice O’Connor’s opinion said (and at least seven Justices either explicitly or implicitly endorsed this), was “lawful political speech at the core of what the First Amendment is designed to protect.” It is evil speech; but the First Amendment protects even evil ideas.

In the second incident, Richard Elliott and Jonathan O’Mara tried to burn a cross on a black neighbor’s lawn, and were prosecuted under the same Virginia law. Here, there was little doubt that the cross-burning was intended to intimidate, and the Court generally said that such speech could indeed be punished. The speech could be punished by general laws that ban threats; and it could also be punished by laws that single out cross-burning, since cross-burning conveys an especially threatening message due to its long association with violence. But nothing in the Court’s reasoning depends on cross-burning being racist. Nonracist threats and racist threats are equally unprotected, just as nonracist ideas and racist ideas are equally protected.

The Court also had to confront some thorny procedural questions, which led the Justices to send the case back to the Virginia Supreme Court for further consideration of the Elliott and O’Mara convictions. But the heart of the matter is what I describe above: The Court’s ruling has to do with threats, not bigotry.

The interesting question, then, is how this ruling will influence future threat cases that don’t involve the Klan, especially cases that involve a mass audience and not just a single targeted victim. The most prominent such case today is the Nuremberg Files case, in which an anti-abortion Web site was ordered to pay huge damages for implicitly praising the killing of certain abortion providers, and thus implicitly threatening other providers whom it condemned by name. The Justices should decide in the next few months whether to hear this particular matter, but the same issue can come up in other political movements, such as the labor movement, environmental movement, anti-war movements, and in its day the civil rights movement.

In the typical scenario, there’s some pattern of violent crime by a small extremist group; some more mainstream speaker who’s unconnected with the criminals angrily condemns certain people; and against the backdrop of violence, some listeners interpret this condemnation as an implied or even express threat. That’s what happened in the Nuremberg Files case, and it also happened in NAACP v. Claiborne Hardware, a Supreme Court case arising out of a late 1960s civil rights boycott.

In Claiborne, boycott organizer Charles Evers gave a speech in which he said that boycott violators (whose names were being taken down and published) might have their necks broken -- quite menacing, given the past violence against people who had violated this boycott. The Court held that such speech is nonetheless protected, a decision that (whether it’s right or wrong) bodes well for the Nuremberg Files defendants, whose speech is analogous to Evers’ speech. But the Justices didn’t make clear just where the line between protected advocacy and punishable threat is drawn, so it’s not easy to definitively predict what the Court will do.

Monday’s case doesn’t clearly dispose of these issues -- but it does reinforce the principle that First Amendment cases must be decided without regard for the speaker’s ideology. Even racist speech isn’t subject to any extra restriction; likewise, even pro-civil-rights speech can get no extra protection, either. That may be good news for those who, like the Nuremberg Files defendants, want to rely on the strongly speech-protective Claiborne decision. Their political cause may be less appealing to many Justices than the civil rights cause involved in Claiborne. But the Court has again affirmed that the law treats speech without regard to the cause that the speech espouses.