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Do They Make Sense As A Matter of First Amendment Law?


Thursday, Dec. 26, 2002

Much has now been made of Justice Clarence Thomas's recent discourse on the evils of cross-burning, during oral argument in Virginia v. Black--a case challenging Virginia's anti-cross-burning statute as a violation of the First Amendment right to free speech.

By common account, Thomas's impassioned declaration that cross-burning has no purpose other than to cause fear and terror (and, for that reason, is not speech protected by the First Amendment) profoundly affected the views of his fellow justices. Indeed, it may well have tipped a Court inclined to strike down Virginia's law as a First Amendment violation, convincing it to affirm the statute's constitutionality instead.

Commentators have universally recognized the potency of Thomas's remarks (made all the more potent by the contrast to Thomas's usual practice of remaining Sphinx-like at oral argument). But they have split over the merits of his remarks if translated into legal principle.

Who's right? In this case, while Thomas has the weight of emotion and history on his side, the law may still militate in favor of striking down the statute.

Will Thomas's strong reaction in this case have repercussions for other cases this Term? They should. In particular, Thomas's remarks at oral argument have strong implications for the consolidated affirmative-action-in-higher-education cases the Court will also resolve.

Cross-Burning versus Flag-Burning

Perhaps cross-burning is so heinous an act with such a particularly violent and despicable pedigree that it is simply unworthy of recognition as speech. But that conclusion is belied by reasoning the Court itself employed in striking down laws prohibiting the burning of the American flag in Texas v. Johnson.

As the Court reasoned in the flag-burning case, it is a truly oracular undertaking to try to distinguish between those types of symbolic speech that we find hateful but nonetheless recognize as constitutionally protected, and those types of symbolic speech that we find hateful and give no constitutional protection . How can drawing such a line ever be anything but truly subjective - based on which symbolic acts upset the judge, personally, the most, and which he or she finds horrible but tolerable?

In the flag-burning cases, the dissenters wanted to declare that flag-burning deserved no First Amendment protection, because it was a desecration of a unique symbol of American nationhood. Thomas's argument with respect to cross-burning is not much different.

If the Court ends up saying the First Amendment protects flag-burning but not cross-burning, it may have a very hard time saying why. To staunch patriots, the former may be the more despicable; to civil rights activists, the latter may be worse.

How Thomas's Reaction May Affect Other Cases This Term, Too

Whatever the merits of this debate, however, it would be a mistake to limit the import and effect of Thomas's remarks to the question of whether the act of burning a cross merits First Amendment protection. The remarks' potential effect is far more wide-ranging than that.

Indeed, the message Thomas delivered at oral argument in Virginia v. Black provides an important, perhaps even decisive lesson for two blockbuster cases the Court will decide later this term - Grutter v. Bollinger and Gratz v. Bollinger. (Lee Bollinger is the dean of the University of Michigan, and hence the defendant in both).

In the two Bollinger cases, the Court will revisit its famous Bakke decision and reconsider the constitutionality of affirmative action in higher public education. They challenge, respectively, the University's use of racial preference in undergraduate and law school admissions

As devotees of the Court's equal protection jurisprudence know, the justices have interpreted the Constitution's equal protection clause to mean that government may only employ race-based preferences in furtherance of a "compelling" governmental interest. Against that backdrop, in Grutter and Gratz, the Court must decide whether the government's interest in promoting "diversity" in higher education qualifies as a compelling interest.

Diversity is the justification for the University of Michigan's admissions system - and a rejection of the diversity rationale will spell the end of affirmative action both at that university and in higher education nationwide.

Why the Bollinger Cases Might (or Might Not) Be Difficult Ones for the Court

This is likely to be a very divisive and close decision. In the past, the Court has agreed that race-based preferences may be employed to remedy the effects of past racial discrimination. But there is no such consensus about using the more forward-looking rationale of diversity for to support a program of racial preferences.

Moreover, and notably, the likely swing vote in the case, Justice Sandra Day O'Connor, has sent mixed signals on the subject in her past writings. O'Connor came close to endorsing the diversity rationale in her concurrence in Wygant v. Jackson Board of Education , which declared unconstitutional a system for laying off employees that favored minority employees. But she appeared far more skeptical in her subsequent dissent in Metro Broadcasting, Inc. v. FCC , a decision the Court has since all but overruled upholding the FCC's racial preferences in the allocation of broadcast licenses.

It isn't altogether clear to me, however, why the vote should be as close as predicted. Hasn't Clarence Thomas just answered the question by providing the Court with ample proof that diversity (whether in higher education or on the Court itself) is an indispensable component to understanding and enlightenment? After all, the power of Thomas's verbal assault on cross-burning, its authenticity and historical irrefutability, derived directly from his identity and perspective as the Court's only African-American justice.

The very same words from any other justice might well have gone unnoticed. They certainly would not have drawn the rapt attention Thomas garnered or have shaped the Court's deliberations profoundly - as Thomas's remarks likely will.

This, of course, is the unique value of diversity - and not only with respect to race. Imagine the Court's deliberations over issues of gender discrimination now that the Court boasts two female justices: Does anyone doubt that the presence of Justices O'Connor and Ruth Bader Ginsburg shapes the debate? Justice Ginsburg's strong opinion in the VMI case - in which the Court held VMI could not, consistent with equal protection principles, remain all male - is only one example.

Now think of how the Court used to be before 1982. Not only was the Court all male, it was run by a Chief Justice (Warren Burger) who opposed the appointment of a woman to the Court.

Would the Chief who wanted to keep women out of the Court itself have wanted to let them into VMI? And conversely, doesn't the presence of women on the Court provide living proof of women's abilities to any Justice who might previously have doubted them?.

Diversity on the Court Itself, But Not In College and Law School?

At times, the Justices have acknowledged how much they have benefited from diversity in their own ranks. When Justice Thurgood Marshall retired, both Justices O'Connor and Anthony Kennedy wrote moving tributes in which they described how Marshall schooled them, week after week, in one true story after another in the quotidian brutality of racial injustice.

True, neither O'Connor nor Kennedy often heeded Marshall's cautionary tales. But they heard him and, by their own vivid accounts, Marshall's forceful perspective moved and educated them. Within a Court that hangs by a thread - either O'Connor or Kennedy could change the world with a change of mind - Marshall's added diversity was crucial, and may yet pay future dividends.

The question, then, is this: Why should college and graduate school students should be deprived of the same benefit of diversity that these justices have acknowledged to be so vital to themselves?

The student in the next chair won't be Thurgood Marshall; no one could be. But that does not change the basic truth that, whether the topic is literature or history or science, and whether the venue is the classroom or the sports field, a racially diverse campus will produce a richer discussion informed by a broader spectrum of experience than a classroom lacking such diversity.

What could be more compelling? Justice Marshall, Justice Thomas, Justice Ginsburg and Justice O'Connor, and all the opinions they authored, and to which they contributed, are literally living proof of diversity's value.

In short, the Court should heed the deeper lesson of Thomas's cross-burning lecture and, indeed, of Thomas's ascension to the Court. Years ago, when the first President Bush nominated Thomas to the Court, he declared to much derision that Thomas was "the best man for the job." The derision came from the fact that Thomas's qualifications, compared to those of other potential candidates, were limited.

So if Bush's declaration was indeed true, it could only have been because Thomas was bringing to the Court a racial identity and perspective (not Marshall's to be sure, but African-American nonetheless) that would otherwise be absent. Minority applicants to our public universities should be allowed to perform the same invaluable function.

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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