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Friday, Nov. 15, 2002

Early next month, the Supreme Court will hold oral argument in Virginia v. Black. The case raises the question whether Virginia's anti-cross-burning statute violates the First Amendment.

Only ten years ago, in 1992, the Court decided a very similar case, R.A.V. v. St. Paul - deciding whether St. Paul, Minnesota's anti-cross-burning ordinance violated the First Amendment. So why is the Court taking on what is, in essence, the same issue a second time?

To put it bluntly, the Court screwed up the first time. In R.A.V., it failed to answer the knotty question of whether any anti-cross-burning law can ever be constitutional.

Worse, in R.A.V., the Court gave the false impression that the question of how cross-burning can constitutionally be punished was much easier than, in fact, it is. In truth, anti-cross-burning statutes present one of the most difficult questions in all of First Amendment law - for cross-burning is a mix not only between speech and action, but also between message and threat.

In order to understand the current cross-burning case, it's necessary first to understand the previous one, R.A.V. v. St. Paul. The decision was unanimous, with every Justice concurring in the result, and five Justices (all of whom are still on the Court) also agreeing with the precise reasoning of Justice Scalia's majority opinion.

R.A.V. - his initials alone were used because of the confidentiality of juvenile criminal records - was a teenager charged with burning a cross inside the fenced yard of an African-American family. A St. Paul ordinance made it a misdemeanor to:

place[] on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender . . . .

The Court struck the ordinance down on the ground that it violated the First Amendment.

The Court's reasoning basically went like this: Cross-burning is symbolic speech protected by the Amendment - an action designed to convey a message, albeit a hateful one. And the ordinance violated the First Amendment by criminalizing that speech "solely on the basis of the subjects [it] addresses" - that is, race, color, creed, religion or gender.

Under the First Amendment, Justice Scalia explained, the government cannot generally forbid speech "because of disapproval of the ideas expressed." The statute impermissibly targeted only hostile symbolic speech about "race, color, creed, religion or gender" - not, for instance, all hostile symbolic speech.

The effect, Scalia explained, was that some topics were favored over others: you could be punished for speaking symbolically and hostilely about race, but not, for instance, about sexual orientation. But the First Amendment forbids the government from, in effect, setting the agenda for what citizens will speak about by preferring some topics (or viewpoints) over others.

Pretending States Could Easily Prosecute Cross Burners

Although it struck down the St. Paul ordinance in R.A.V., the Court seemed to believe that the decision would pose little problem for states that wanted to prosecute cross-burners.

But what are those "sufficient means," exactly? That question brings us to this Term's cross-burning case - in which another anti-cross-burning statute will probably be struck down.

This Term's First Amendment/Cross-Burning Case

Virginia's anti-cross-burning statute made it a felony "for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place." It also noted that "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or a group of persons." (This last sentence raises another constitutional problem, for it presumes the intent necessary to prove a crime.)

Note the differences between the Virginia statute and the St. Paul ordinance the Court struck down in R.A.V.: Unlike the ordinance, the Virginia statute does not pick out specially disfavored subject areas such as "race." And, unlike the ordinance, the Virginia statute focuses on cross-burning specifically as an implicit threat, and a means of intimidation.

Nevertheless, the Virginia Supreme Court - over the dissent of some of its Justices - struck the statute down. Carefully applying R.A.V., the court found that the statute, like the St. Paul ordinance, discriminated between types of speech based on their content - with one particular type of symbolic speech, cross-burning, specially disfavored. (After all, the statute does not reach flag-burning, draft-card-burning, bra-burning, or book-burning, even if there are done with the intent to intimidate or threaten).

Why the Supreme Court will Probably Strike Down the Virginia Statute, Too

From a First Amendment perspective, the Virginia Supreme Court is probably right. The truth is that cross-burning conveys a message - a horrific message of racial hatred - and that message, and only that message, is targeted by the statute.

But what about the fact that message conveyed is also an implicit threat to African-Americans - as the Virginia statute recognizes? Cross-burning inspires fear and is meant to do so.

The problem, however, is that it is probably not enough, under U.S. Supreme Court First Amendment precedent, for a threat to be implicit. Speech needs to be more than threatening, frightening, or intimidating to be criminalized - it needs to present a direct, imminent threat of violence.

The threat cross-burning presents, by its nature, is not put into words - and thus is not specific. Standing on someone's porch banging on the door and screaming "I'm going to come in and kill you" is patently a crime. But mutely burning a cross on someone's lawn, or across the street from it, or in the road, is probably too vague and indirect to be a direct threat.

Does cross-burning mean "I'm going to come in and kill you," or just "I hate people like you."? Remember, everyone has a right to scream the latter sentence with impunity - unless it is so provocative it is liable to inspire imminent violence.

Is There Any Way a State Can Constitutionally Prosecute Cross-Burning?

So what is a state to do? The answer is far from as easy as Justice Scalia suggested in R.A.V. Enforcing the anti-trespassing or anti-arson laws probably will not be enough.

After all, trespassers do not tend to face stiff penalties. Arson laws tend to apply to structures like houses, not objects like crosses. And a law that prohibits burning anything on someone's property, or on the street next to it, will end up reaching kids with firecrackers, or rude neighbors whose leaf piles are ill-placed, or even careless smokers who throw their butts out the window.

But what if a state passes a law simply making it a felony "for any person or persons, with the intent of directly threatening any person or group of persons, to burn, or cause to be burned, an object on the property of another, a highway or other public place?"

That is, what if Virginia re-enacted its cross-burning law without the mention of a "cross," and with language suggesting that what is necessary is an intent to directly threaten, not to intimidate?

The statute would reach conduct other than cross-burning, but that is exactly the point: It would not pick out a particular disfavored kind of symbolic speech. So, for instance, if an abusive husband burned his children's clothes on their lawn while his wife looked on - in circumstances suggesting he meant the act to be a threat to the children - then he might be able to be prosecuted under this statute, too.

Such a statute would, at least, have a better chance of surviving Supreme Court scrutiny than Virginia's. But we still cannot know for certain what its fate would be - and for that, we have the Supreme Court's incomplete and misleading decision in R.A.V. to thank.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel, Three, will be published in the U.S. in summer 2003 by Plume, and in French translation by Actes Sud.

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