case... does reinforce the principle that First Amendment cases
must be decided without regard for the speaker's ideology.
to Say Something
Professor Eugene Volokh
(Another version of this piece appeared in the Wall
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.
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 Ku Klux Klan 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.
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.
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
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.
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.
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
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.
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.
Volokh is a professor of law at the University of California, Los
Angeles. Another version of this article originally appeared in
the April 9 edition of the Wall
April 10, 2003]
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