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An Intense Attack by Justice Thomas on Cross-Burning
By LINDA GREENHOUSE
WASHINGTON, Dec. 11 — The question for the Supreme Court in an argument today was whether a state may make it a crime to burn a cross without at the same time trampling on the protection that the First Amendment gives to symbolic expression. The case, concerning a 50-year-old Virginia law, raised tricky questions of First Amendment doctrine, and it was not clear how the court was inclined to decide it — until Justice Clarence Thomas spoke.
A burning cross is indeed highly symbolic, Justice Thomas said, but only of something that deserves no constitutional protection: the "reign of terror" visited on black communities by the Ku Klux Klan for nearly 100 years before Virginia passed the law, which the Virginia Supreme Court declared unconstitutional a year ago.
A burning cross is "unlike any symbol in our society," Justice Thomas said.
"There's no other purpose to the cross, no communication, no particular message," he continued. "It was intended to cause fear and to terrorize a population."
During the brief minute or two that Justice Thomas spoke, about halfway through the hourlong argument session, the other justices gave him rapt attention. Afterward, the court's mood appeared to have changed. While the justices had earlier appeared somewhat doubtful of the Virginia statute's constitutionality, they now seemed quite convinced that they could uphold it as consistent with the First Amendment.
Justice Thomas addressed his comments to Michael R. Dreeben, a deputy federal solicitor general who was arguing in support of Virginia's defense of its statute. But he did not have questions for Mr. Dreeben, who in any event agreed with him in nearly all respects. The threat of violence inherent in a burning cross "is not protected by the First Amendment" but instead is "prohibited conduct," Mr. Dreeben had just finished arguing.
Rather, Justice Thomas appeared driven to make the basis for his own position unmistakably clear.
"My fear is you are actually understating the symbolism of and effect of the burning cross," he said, adding, "I think what you're attempting to do is fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish."
It was a gripping made-for-television moment — except, of course, for the fact that television cameras are not permitted inside the courtroom. Justice Thomas speaks in a rich baritone that is all the more striking for being heard only rarely during the court's argument sessions. His intervention, consequently, was as unexpected as the passion with which he expressed his view.
He referred to an opinion he wrote in 1995, concurring with the majority that the City of Columbus, Ohio, had no basis for refusing permission to the Klan to place a cross among other Christmastime displays in a downtown park that served as an open forum for religious expression. In that opinion, Justice Thomas said he was joining the decision despite his belief that the Klan's cross was not a form of religious expression but rather "a symbol of white supremacy and a tool for the intimidation and harassment" of racial and religious minorities.
There was a suggestion in his remarks today that perhaps he now regretted his effort in that case to meld his own views into the court's jurisprudence and, after 11 years on the court, no longer felt obliged to try.
Afterward, Justice David H. Souter addressed Rodney A. Smolla, the lawyer for three men who were convicted under the cross-burning statute in two incidents. Mr. Smolla, a well-known First Amendment scholar at the University of Richmond, had just argued that the government could make it a crime to brandish a gun but not to burn a cross because a gun has physical properties that make it dangerous while the danger inherent in a burning cross comes from the ideas it symbolizes and not its physical properties.
That might have been a winning argument two centuries ago, Justice Souter said, "but how does your argument account for the fact that the cross has acquired potency at least akin to a gun?"
Justice Souter called a burning cross "a kind of Pavlovian symbol, so that the person who sees it responds not to its message but out of fear." He added that "other symbols don't make you scared," suggesting that a burning cross might be "a separate category."
Mr. Smolla recalled the court's decision upholding a First Amendment right to burn an American flag.
"You must concede," he said, that the cross itself "is one of the most powerful religious symbols in human history." As with burning the flag, the act of burning a cross involves "calling on that repository of meaning" to make a symbolic point, he said.
Justice Ruth Bader Ginsburg objected that there was "a big difference" between the two acts.
"The flag is a symbol of the government," Justice Ginsburg said, and it is inherent in the constitutional system that "anyone can attack the government." But burning a cross means "attacking people, threatening life and limb," she said.
The Virginia law prohibits burning a cross "with the intent of intimidating any person or group of persons." Mr. Smolla said it would be effective as well as constitutional to make threats and intimidation a crime without singling out a particularly threatening symbol.
"A burning torch and a burning cross — what's the difference?" he asked, evidently intending to emphasize the expressive nature of cross-burning. But Justice Anthony M. Kennedy found a different answer. "One hundred years of history," he said.
Mr. Smolla made the best of the moment, saying, "Thank you, Justice Kennedy, and that 100 years of history is on the side of freedom of speech."
William H. Hurd, Virginia's state solicitor, argued on behalf of the statute in Virginia v. Black, No. 01-1107.
"We have not tried to suppress freedom of speech," Mr. Hurd said. "All we've tried to do is protect freedom from fear."
By LINDA GREENHOUSE
WASHINGTON, Dec. 11 — The question for the Supreme Court in an argument today was whether a state may make it a crime to burn a cross without at the same time trampling on the protection that the First Amendment gives to symbolic expression. The case, concerning a 50-year-old Virginia law, raised tricky questions of First Amendment doctrine, and it was not clear how the court was inclined to decide it — until Justice Clarence Thomas spoke.
A burning cross is indeed highly symbolic, Justice Thomas said, but only of something that deserves no constitutional protection: the "reign of terror" visited on black communities by the Ku Klux Klan for nearly 100 years before Virginia passed the law, which the Virginia Supreme Court declared unconstitutional a year ago.
A burning cross is "unlike any symbol in our society," Justice Thomas said.
"There's no other purpose to the cross, no communication, no particular message," he continued. "It was intended to cause fear and to terrorize a population."
During the brief minute or two that Justice Thomas spoke, about halfway through the hourlong argument session, the other justices gave him rapt attention. Afterward, the court's mood appeared to have changed. While the justices had earlier appeared somewhat doubtful of the Virginia statute's constitutionality, they now seemed quite convinced that they could uphold it as consistent with the First Amendment.
Justice Thomas addressed his comments to Michael R. Dreeben, a deputy federal solicitor general who was arguing in support of Virginia's defense of its statute. But he did not have questions for Mr. Dreeben, who in any event agreed with him in nearly all respects. The threat of violence inherent in a burning cross "is not protected by the First Amendment" but instead is "prohibited conduct," Mr. Dreeben had just finished arguing.
Rather, Justice Thomas appeared driven to make the basis for his own position unmistakably clear.
"My fear is you are actually understating the symbolism of and effect of the burning cross," he said, adding, "I think what you're attempting to do is fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish."
It was a gripping made-for-television moment — except, of course, for the fact that television cameras are not permitted inside the courtroom. Justice Thomas speaks in a rich baritone that is all the more striking for being heard only rarely during the court's argument sessions. His intervention, consequently, was as unexpected as the passion with which he expressed his view.
He referred to an opinion he wrote in 1995, concurring with the majority that the City of Columbus, Ohio, had no basis for refusing permission to the Klan to place a cross among other Christmastime displays in a downtown park that served as an open forum for religious expression. In that opinion, Justice Thomas said he was joining the decision despite his belief that the Klan's cross was not a form of religious expression but rather "a symbol of white supremacy and a tool for the intimidation and harassment" of racial and religious minorities.
There was a suggestion in his remarks today that perhaps he now regretted his effort in that case to meld his own views into the court's jurisprudence and, after 11 years on the court, no longer felt obliged to try.
Afterward, Justice David H. Souter addressed Rodney A. Smolla, the lawyer for three men who were convicted under the cross-burning statute in two incidents. Mr. Smolla, a well-known First Amendment scholar at the University of Richmond, had just argued that the government could make it a crime to brandish a gun but not to burn a cross because a gun has physical properties that make it dangerous while the danger inherent in a burning cross comes from the ideas it symbolizes and not its physical properties.
That might have been a winning argument two centuries ago, Justice Souter said, "but how does your argument account for the fact that the cross has acquired potency at least akin to a gun?"
Justice Souter called a burning cross "a kind of Pavlovian symbol, so that the person who sees it responds not to its message but out of fear." He added that "other symbols don't make you scared," suggesting that a burning cross might be "a separate category."
Mr. Smolla recalled the court's decision upholding a First Amendment right to burn an American flag.
"You must concede," he said, that the cross itself "is one of the most powerful religious symbols in human history." As with burning the flag, the act of burning a cross involves "calling on that repository of meaning" to make a symbolic point, he said.
Justice Ruth Bader Ginsburg objected that there was "a big difference" between the two acts.
"The flag is a symbol of the government," Justice Ginsburg said, and it is inherent in the constitutional system that "anyone can attack the government." But burning a cross means "attacking people, threatening life and limb," she said.
The Virginia law prohibits burning a cross "with the intent of intimidating any person or group of persons." Mr. Smolla said it would be effective as well as constitutional to make threats and intimidation a crime without singling out a particularly threatening symbol.
"A burning torch and a burning cross — what's the difference?" he asked, evidently intending to emphasize the expressive nature of cross-burning. But Justice Anthony M. Kennedy found a different answer. "One hundred years of history," he said.
Mr. Smolla made the best of the moment, saying, "Thank you, Justice Kennedy, and that 100 years of history is on the side of freedom of speech."
William H. Hurd, Virginia's state solicitor, argued on behalf of the statute in Virginia v. Black, No. 01-1107.
"We have not tried to suppress freedom of speech," Mr. Hurd said. "All we've tried to do is protect freedom from fear."
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