As a Christian, I have always been appalled at the Ku Klux Klan and other racists’ practice of burning crosses – whether at their meetings, or on the lawns of black or mixed-race couples.
In that sense, I welcome the U.S. Supreme Court’s decision upholding the right of the state of Virginia to outlaw the burning of crosses – for the purpose of intimidation.
But what about the public burning of the United States flag, which a 5-4 decision of that highest court years ago ruled was a form of communication? Why isn’t a burning cross a form of communication as much as a burning flag?
In writing for the majority of the court, Justice Sandra Day O’Connor noted:
A state may punish those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. We have consequently held that fighting words – those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction – are generally proscribable under the First Amendment.
What about actions as well as words, Justice O’Connor?
Suppose the widow, children, parents and friends of a Marine Corps lieutenant, killed in action in Iraq, have just returned home from his funeral, where our national emblem was draped over his casket as the pall.
And suppose that night they turn on their television, in looking for further news of the war in which their beloved has made the supreme sacrifice. And suppose they see that in their own city one of the demonstrators takes that same national symbol, which was on his casket, and first burns and then urinates on it – while shouting: “The Supreme Court ruled that I have the right to this public expression!”
How many of the U.S. Supreme Court believe that this should be allowed as a form of communication, while burning a cross can be outlawed?
Is there anything in all pornography as grossly offensive as the public burning and ridicule of our national emblem, under which we bury our heroes?
In one-half page of the New York Times’ excerpts from the majority opinions and dissents in the case of Virginia vs. Black, there was no mention of the high-court’s decision in the case of that hairy hippie whom I saw in Texas just before he publicly burned our nation’s flag outside the Republican National Convention.
Justice O’Connor also noted:
As the history of cross burning indicates a burning cross is not always intended to intimidate. Rather, sometimes the cross-burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and is used to represent the Klan itself. Thus, burning a cross at a political rally would almost certainly be protected expression. Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross-burnings have appeared in movies such as “Mississippi Burning” and in plays such as the stage adaptation of Sir Walter Scott’s “The Lady of the Lake.”
But that movie cross-burning was surely portraying historic threats to black citizens of Mississippi.
What if the Klan had obtained a Torah scroll and, standing on a public sidewalk in front of synagogue on Friday night, they set it aflame as people came out of their temple of worship?
Could they legitimately argue that they intended to threaten no one, but were merely exercising their First Amendment right to express disgust with Jewish religious beliefs (which Louis Farrakhan described as a “Gutter Religion”)?
Would such a “Torah Roast” (as the Klan might call it) be a “form of communication” approved by the U.S. Supreme Court – as it ruled in allowing public burnings of our nation’s flag?
