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CROSS BURNING, THE “SILENT” JUSTICE,

AND THE FIRST AMENDMENT

FREEDOM OF SPEECH AND THE FIRST AMENDMENT



CROSS BURNING, THE “SILENT” JUSTICE, AND THE FIRST AMENDMENT

This is “My Constitution,” a podcast from the Center for C-SPAN Scholarship & Engagement at Purdue University. In this episode, we’ll discuss the freedom of speech and the role of the United States Supreme Court in interpreting the First Amendment’s free speech clause.

James Jubilee, a Black man, found the burned cross near his home in Virginia Beach in May of 1998. Mr. Jubilee had complained to his neighbor about gunshots coming from a firing range that had been set up in his neighbor’s backyard. The cross was burned by two men, Richard Elliott, Mr. Jubilee’s neighbor, and Jonathan O’Mara.

A few months later, in Carroll County, Virginia, the Ku Klux Klan held a gathering that featured a cross-burning, threats to shoot Blacks, and racially-charged comments about members of minority groups. A Black family, driving across a nearby road, felt so threatened by the sight of the large burning cross, that they drove as quickly as they could away from the scene. Richard Elliott, Jonathan O’Mara, and Barry Black, the Klansman who was behind the cross burning in Carroll County, were all convicted of violating Virginia law. That law, which was first passed in 1952 and revised in ‘68, made it a felony to burn a cross with the intention to intimidate. Burning a cross, in and of itself, was enough for a jury to convict an individual of intimidation.

The Virginia Court of Appeal’s upheld their convictions. However, the highest court in the State struck down the law. The United States Supreme Court agreed to hear the case in 2002. The First Amendment is part of the Bill of Rights. Added to the Constitution in 1791, the First Amendment is like the hydra found in the legends of the ancient world. And just like the hydra had many heads, the First Amendment contains numerous clauses.

The First Amendment protects the freedom of the press. It contains no less than two clauses protecting religious rights. The First Amendment protects the right of individuals to join together in groups. And most famously, the First Amendment protects, our topic today, “the freedom of speech.”

On its face, the First Amendment’s free speech clause appears to have no restrictions. It begins with the words, “Congress shall make no law.” In the 1920s, in a process called incorporation, the Court decided that the free speech clause applied to the States as well as the federal government. The Court has also taken the position that certain types of speech, for example, libel and obscenity, can be punished.

But while the Court has allowed restrictions to be placed on some forms of speech, it has also embraced an expansive vision of what constitutes speech. Moving beyond the spoken word, members of the Court have argued that symbols can play an important role in communicating ideas.

A number of cases illustrate the Court’s commitment to what has been called “symbolic speech.” One of five students, Mary Beth Tinker was thirteen years old when she wore a black armband to school in Des Moines, Iowa, in 1965. For her, the armband communicated an important message.

We wore black armbands to school to mourn for the dead in Vietnam in 1965 and to support a Christmas truce that was being called for by Senator Robert Kennedy. And for doing that, we were suspended. The American Civil Liberties Union took the case all the way to the Supreme Court, which ruled in 1969 that neither teachers nor students leave their First Amendment rights at the schoolhouse gate.

Twenty years later, the U.S. Supreme Court decided another case involving a symbol. In this case the American flag. In Texas v. Johnson in 1989, a majority of the Court upheld the right of protester Gregory Johnson to burn the American flag:

In 1984, the Republican convention was right around the time of the U.S.’s invasion into Grenada. Reagan's little jokes about having outlawed the Soviet Union. The bombing was going to begin in five minutes. The threats against Nicaragua to say “uncle.” So we wanted to do as much as possible to pierce the whole chauvinistic, ramboistic atmosphere here around that convention, and I think the flag burning did that very sharply.

The connection the Court has drawn between symbols and speech is important for our story, for a burning cross is, at its core, a symbol. The United States Supreme Court considered a case involving cross burning in 1992. The case is R.A.V. v. City of St. Paul. Let’s look at the facts in that case.

On June 21, 1990, a number of young men set light to crosses they placed on or near the property of Russ and Laura Jones. The only Black family in a White neighborhood in St. Paul, the Jones’s had faced months of intimidation. Their car had been damaged and a racial epithet had been hurled at their son.

Seventeen-year-old Robert Viktora, or R.A.V., was one of two individuals arrested for the cross burning. He was charged with violating a St. Paul ordinance that made it a misdemeanor to engage in activity which “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Two symbols were specifically mentioned in the St. Paul ordinance. One of them was a swastika. The other was a burning cross. The behavior that precipitated the legal drama in R.A.V. v. City of St. Paul was condemned by Tom Foley, the attorney defending the ordinance. He described the cross burning as an “unmistakable threat” and “terroristic conduct.” Edward Cleary, Viktora’s counsel, characterized the actions in the case as “abhorrent” and “reprehensible.” Justice Antonin Scalia, who penned the Court’s opinion in R.A.V., used the same language in his majority opinion. The outspoken, conservative justice noted, “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible.”

But the Supreme Court took the position that the St. Paul ordinance was unconstitutional. In short, the Court argued that in its attempt to regulate speech, St. Paul had crossed a constitutional line because the ordinance only punished certain types of speech, which we learned earlier were those that “arouse[d] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” Justice Thomas joined the majority in striking down the St. Paul ordinance.

On Wednesday, December 11, 2002, Justice Clarence Thomas, the Court’s only African American justice, took his traditional place on the bench of the United States Supreme Court to hear arguments in the Virginia cross burning case. Members of the Court sit in order of seniority. One of nine members, Justice Thomas sat between Justice Anthony Kennedy and Justice Stephen Breyer.

Justice Thomas joined the Supreme Court in October 1991. On the Court, he was known for his conservative views, and for his relative silence during oral argument. During oral argument, each lawyer presents their case, and members of the Court are able to ask questions of counsel. At one point in the Court’s history, generous amounts of time were allocated for oral argument. In the interstate commerce case Gibbons v. Ogden, decided in 1824, the Court heard oral argument for twenty hours. The contemporary Court usually allows only one hour of oral argument for each case.

In a talk before the Supreme Court Historical Society in 2019, Justice Thomas explained his reticence to ask questions:

I kind of liked the quiet learning. I liked the court the way it was when I came on board. Fewer questions, more opportunity for the lawyers to talk, more opportunity for people to have a conversation with the lawyers. So, it isn't so much that I think my colleagues are asking too many questions. I think the risk that you run when we are this active, is that you are beginning to monopolize the time that, or freeze out the time that, the lawyers should have to make their arguments.

But on December 11, Justice Thomas did speak at oral argument. It was one of only two times he would speak during the Court’s October 2002 term. Just over twenty minutes into the session, Justice Thomas began asking a series of questions. Here’s the exchange between Justice Thomas and Michael Dreeben, the Deputy Solicitor General.

THOMAS: This statute was passed in, what year?

DREEBEN: 1952 originally.

THOMAS: Now it's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camelia and the Ku Klux Klan, and this was a reign of terror, and the cross was a symbol of that reign of terror. Was, isn't that significantly greater than intimidation or threat?

DREEBEN: Well, I think they're co-extensive Justice Thomas, because it is…

THOMAS: Well, and my fear is, Mr. Dreeben, that you're actually understating the symbolism of an effect of the cross.

Justice Thomas went on to describe the burning cross as “unlike any symbol in our society” and that it was “intended to cause fear and to terrorize a population.” The Court issued its opinion in Virginia v. Black approximately four months after oral argument.

It’s often said that “half a loaf is better than none.” When the Court decided Virginia v. Black, Justice Thomas, the “silent” justice, got “half a loaf.” In her opinion, Justice O’Connor provided her readers with a history of cross burning and of the Ku Klux Klan. And as it related to this case, she added this:

The First Amendment permits Virginia to outlaw a cross burning done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.

However, Justice O’Connor argued that the drafters of the Virginia statute had erred—that cross burning could actually represent a set of ideas or “a symbol of group solidarity,” not always an act of intimidation. Justice Thomas argued that the Court was correct when it concluded that Virginia could punish cross burning undertaken with an attempt to intimidate. He described the Ku Klux Klan as a “terrorist organization.” For Justice Thomas, the First Amendment’s speech clause provided no haven for cross burning.

In this podcast, we’ve discussed the First Amendment. We’ve focused our attention on one clause of the First Amendment, that which protects speech. The Court has restricted some forms of speech. It has also expanded our understanding of speech to include symbols. One of those symbols, a burning cross, received some protection in Virginia v. Black.

Before we close, let’s return to St. Paul, Minnesota, the home of Russ and Laura Jones.

Following the Court’s decision striking down the St. Paul ordinance, a celebration of sorts took place across from their home. The celebrants, who attempted to hide their identities, waved Confederate flags and held clubs and bats in their hands.

Laura Jones was quoted as saying, “It was awful. I felt trapped in my own home. We didn’t go anywhere, because I would have had to face them and could never tell what they would do.” No crosses were burned that day near the home of Russ and Laura Jones. The fear the family felt, however, was very real. Justice Clarence Thomas may have understood their reaction. Debates over the meaning of the First Amendment continue.

Further information on some of the issues discussed in this podcast, including questions to ponder, our sources, and additional clips from the C-SPAN Archives, can be found on the website of the Center for C-SPAN Scholarship & Engagement. The address is cla.purdue.edu/cspan. The Center is affiliated with the Brian Lamb School of Communication at Purdue University.

PODCAST GOAL

To acquaint the student with the role of the Constitution in protecting the freedom of speech.


NOTE

The jury instructions that Justice O’Connor found so problematic in the Virginia statute did allow individuals to contest the claim the cross burning was undertaken with the intent to intimidate. However, as Justice O’Connor noted in her opinion “The . . . provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense.” O’Connor further argued that even in cases where an individual contested the claim that the cross-burning had been undertaken with the intention to intimidate, “the . . . provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case.” This conclusion provides some support for the observation in this podcast that burning a cross, in and of itself, was enough for a jury to convict an individual of intimidation. Others would disagree with the absolutist interpretation found in this podcast.

QUESTIONS TO PONDER

  1. As we noted in the podcast, the Court has taken the position that certain types of speech can be punished. What types of speech should we restrict? Why do you think these forms of speech deserve less protection than others?
  1. Do you agree with members of the Court that symbols can play an important role in communicating ideas? Can you give examples beyond those discussed in the podcast? Additional information on this topic can be found in the “Supreme Court Cases” section of this document (See Tinker v. Des Moines, Texas v. Johnson, and United States v. Eichman) and in the “Additional Materials” section. See, in particular, the discussions with Gregory Johnson and with Mary Beth and John Tinker.
  1. In her opinion in Virginia v. Black, Justice Sandra Day O’Connor argued that, in some instances, the fiery cross represents a set of ideas or “a symbol of group solidarity.” For Justice Thomas, in contrast, the First Amendment’s speech clause provided no haven for cross burning. With which member of the Court do you find yourself in agreement? Why? Additional information on this topic can be found in the “Supreme Court Cases” section of this document (See Virginia v. Black).
  1. In response to the horrors of the Second World War, Germany restricts certain forms of speech. This concern has even extended to the use of Nazi symbols in video games. The following article (“Germany lifts total ban on Nazi symbols in video games”), from the BBC, discusses recent changes in this area of speech. https://www.bbc.com/news/world-europe-45142651. Over recent years, in response to horrors of slavery, a number of individuals have called for the removal of memorials to the Confederacy. Are you in favor of the removal of these memorials? If so, why? If not, why not?

OUR SOURCES

Bell, J. (2004). O say, can you see: Free expression by the light of fiery crosses. Articles by

Maurer Faculty. Indiana University Bloomington. https://www.repository.law.indiana.edu/facpub/334

Egelko, B. (2012). Most cross burning ruled illegal / no 1st amendment right to intimidate, Supreme Court says. San Francisco Chronicle. www.sfgate.com/news/article/Most-cross-burning-ruled-illegal-No-1st-2656655.php

Fiorina, M. P., Peterson P. E., Johnson, B., & Mayer, W. G. (2011). The new American democracy (7th ed., pp. 462-475, 491). New York City, NY: Pearson.

Jones, R. N. A., & Nielson, A. L. (2017). Clarence Thomas the questioner. Northwestern University Law Review vol 111, https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1247&context=nulr_online

Kahn, R. A. (n.d.). Cross burning. The Free Speech Center. www.mtsu.edu/first-amendment/article/1105/cross-burning

Lane, C. (2002, Dec 12). High court hears Thomas on KKK rite; justice weighs in on VA. cross- burning ban.The Washington Post. https://search.proquest.com/docview/409461190?accountid=13360

Lane, C. (2002, May 29). Supreme. Court takes up Virginia cross-burning case; justices to decide if practice is free speech or criminal.The Washington Post. https://search.proquest.com/docview/409260287?accountid=13360

Marcus, R. (1991, Dec 01). A family's nightmare: Cross-burning in St. Paul; justices to hear arguments in First Amendment challenge to ordinance on hate crimes.The Washington Post. https://search.proquest.com/docview/307473947?accountid=13360

Marcus, R. (1991, Dec 05). Justices weigh hate-crime ordinance.The Washington Post. https://search.proquest.com/docview/307457088?accountid=13360

Marcus, R. (1992, Jun 23). Supreme Court overturns law barring hate crimes; free speech ruling seen as far-reaching.The Washington Post. https://search.proquest.com/docview/307552619?accountid=13360

Mauro, T. (1991, Jun 11). Issue of cross-burning: A right? or a wrong? USA Today. https://search.proquest.com/docview/306438934?accountid=13360

O'Brien, D. M. (2017). Constitutional law and politics: Civil rights and civil liberties (10th ed., pp. 517-526, 528-535). New York City, NY: Norton & Company.

O’Brien, D. M. (2017). Storm center: The Supreme Court in American politics (11th ed.). New York City, NY: W. W. Norton & Company.

Smiley, T. (2003, Apr. 08) Analysis: Supreme Court upholds Virginia law which makes it a crime to burn a cross as an act of intimidation. Gale. https://link.gale.com/apps/doc/A167305168/HRCA?u=inspire&sid=HRCA&xid=f3ce961c

Virginia v. Black. (n.d.). Oyez. https://www.oyez.org/cases/2002/01-1107

Walsh, E. (2003, Apr 08). State bans on cross burning upheld; high court affirms parts of

VA. law but strikes down others.The Washington Post. https://search.proquest.com/docview/409479017?accountid=13360

UNITED STATES SUPREME COURT CASES

R.A.V. v. City of St. Paul (1992) -- https://www.oyez.org/cases/1991/90-7675. One of the two cross burning cases to reach the Court discussed in this podcast, R.A.V. focuses on the constitutionality of the City of St. Paul’s response to hate speech. The above link will take you to oral argument, the announcement of the decision from the bench, and the various opinions in the case. The page also includes a summary of the facts, the legal question, and a summary of the Court’s decision.

Texas v. Johnson (1989) -- https://www.oyez.org/cases/1988/88-155. Johnson focuses on the First Amendment right of an individual to burn the American flag as a form of political protest. The Oyez website’s coverage of this case includes a brief discussion of the case, a link that takes you to the arguments heard before the Court, and to the various opinions penned by the Court’s members.

Tinker v. Des Moines (1969) -- https://www.oyez.org/cases/1968/21. One of the classic symbolic speech cases, Tinker focuses on the First Amendment rights of students who wore black armbands in school. On this page, you can find links to oral argument and the various opinions in the case. The page also includes a summary of the facts, the legal question, and a summary of the Court’s decision.

United States v. Eichman (1990) -- https://www.oyez.org/cases/1989/89-1433. One year after the Johnson case, the Court addressed the constitutionality of the Flag Protection Act of 1989. The Oyez website includes links to the Court’s opinions and oral argument. The page also contains a summary of the facts, the legal question, and a summary of the Court’s conclusions.

Virginia v. Black (2003) -- https://www.oyez.org/cases/2002/01-1107. In Black, the Court considered the constitutionality of Virginia’s cross-burning statute. In addition to an outline of the case, and the Court’s opinions, this link will take you to the Supreme Court where you can hear oral argument and Justice Sandra Day O’Connor’s announcement from the bench.

ADDITIONAL CLIPS AND PROGRAMS FROM THE C-SPAN ARCHIVES