A Commentary: Supreme Court Declares Cross Burning Free Speech

By Marilyn Simpson-Johnson, LMSW

Though outgunned 6-3, Clarence Thomas finally came out of his shell swinging at a controversial Supreme Court ruling on cross burnings. For African-Americans, the symbol of a cross burning in their yards, at rallies/marches, or at Klan gatherings conjures up images of racial hatred and abuse. The immediate impact of the Supreme Court ruling is that the 1998 conviction of a Virginia Ku Klux Klan leader will be thrown out. This new ruling, written by the female justice Sandra Day O'Connor, states: "burning a cross does not inevitably convey a message of intimidation." Paradoxically, she then asserts "often the cross burner intends that (people) fear for their lives," which is a very "powerful" message of intimidation. The wording of her opinion for the majority stipulates that the First Amendment "prohibits states from presuming that every act of cross burning has an illicit motive." The litmus test, she writes, must be that the cross burning conveys a "true threatwith the intent of placing the victim in fear of bodily harm or death." How might one establish, though, prima facie evidence of a "true threat?"

The good news is this decision aroused Clarence Thomas into action with a "blistering" judicial dissent. He asserted, and rightfully so, that "cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence." Certainly, cross burnings were, in many instances, a prelude to lynching in the Deep South. With the apparent resurgence of cross burnings across America, Thomas, the only black justice on the Supreme Court, took a stand by refusing to sign O'Connor's opinion and by challenging the core of her brief that cross burnings should be protected as a First Amendment (free speech) right.

Additionally, in the 1998 James and Susan Jubilee's (he's black and she's white) cross-burning incident, the Supreme Court on Monday, April 8, threw out the conviction of their neighbors who were the cross burners, and instructed the Virginia Supreme Court to determine if "the men intended to intimidate their neighbors." The Virginia Supreme Court had already struck down the lower court ruling in favor of the Jubilees by relying on a 1992 U. S. Supreme Court ruling which struck down a law banning "cross burning intended to arouse anger in people based on race, color, creed, religion, or gender." Interestingly, the crux of this case is that the 25-foot cross was burned in the Jubilee's yard in full view of their three children. In other words, the neighbors did not burn the cross in their yard! The cross burners, then, challenged the Virginia lower court ban on cross burning and won that decision on Monday, April 8.

This is an extremely disturbing outcome for people of color and other concerned citizens. If neighbors and others can burn crosses at will, this may add a new dimension to our work. We may be called upon in a community meeting on diversity to help an Extension audience to determine whether the smoldering 25-foot or larger cross on their property is a First Amendment right, or an act designed to cause the victim fear and intimidation. Do they need to prove their feelings with psychological evidence; emergency room visits for unexplained medical problems, or the posting of "for sale" signs in front of their property, as they take flight from hostile subdivisions? When the victim is asleep or away from home, therefore unaware of the burning cross, does the post-discovery of the charred edifice to hatred and racism, which engenders morbid fears of bodily harm or danger, meet this new legal standard?

Now, if the burning cross alone does not meet a "reasonable person's standard" of what might cause an ordinary citizen to feel fear and intimidation in the sanctity of his/her home and property, will the higher standard only be met when a weapon is present or must an actual attack take place? In other words, is there a difference between crosses burning at a political rally or on the remote grounds of a KKK gathering versus the sight of a burning cross in one's family yard? Obviously, this Supreme Court saw no differences among these venues. Hate mongers now have a license to set ablaze 25-foot or larger crosses in the yards of their neighbors or strangers, and the burden has shifted to the victim to prove "intimidation" or "fear of bodily harm!"

This unleashing of the right of hate mongers to burn crosses with impunity in other people's yards, irregardless of the application of the "reasonable person's standard" in the matter of fear and intimidation," causes those of us charged with providing "expert" information to the Jubilees' of Alabama concern. We need to vigorously affirm, "merely burning a cross" is an indication of "intent to intimidate someone." The burden of intent must remain with the cross burner instead of the victim having to prove impact, particularly when other race-bate indicators of the old Jim Crow era are present, like the racial make-up of Mr. & Mrs. Jubilee.

Finally, we must view the current cross-burning decision by the USA Supreme Court within its proper historical context: Dred Scott and Plessey vs. Ferguson.

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April 11 2003

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