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  • Is Cross-Burning "Free Speach"?

    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."
    The ways of Man are passing strange, he buys his freedom and he counts his change.
    Then he lets the wind his days arrange and he calls the tide his master.

  • #2
    Thomas actually spoke? Wow...
    KH FOR OWNER!
    ASHER FOR CEO!!
    GUYNEMER FOR OT MOD!!!

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    • #3
      Wow. For once, I'm in agreement with Thomas. And this has to be the first time I've heard of him being more than an chair-filler at the court...
      Tutto nel mondo è burla

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      • #4
        no

        speech must be made with vocal chords imho.

        sorry deaf people but the goverment has the right to censor your sign language

        Comment


        • #5
          yes
          "Chegitz, still angry about the fall of the Soviet Union in 1991?
          You provide no source. You PROVIDE NOTHING! And yet you want to destroy capitalism.. you criminal..." - Fez

          "I was hoping for a Communist utopia that would last forever." - Imran Siddiqui

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          • #6
            and couldn't they just shut those things down with regards to fire safety?

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            • #7
              burning a cross in your own yard or your own property is fine, IMO. When you stick it on someone elses property, well then, you've got yourself Arson, trespassing, attempted murder, hate crimes, etc. etc. etc. So no, i don't see a problem with the act of cross burning alone. It's the other stuff that'll **** over the bigots.
              "Chegitz, still angry about the fall of the Soviet Union in 1991?
              You provide no source. You PROVIDE NOTHING! And yet you want to destroy capitalism.. you criminal..." - Fez

              "I was hoping for a Communist utopia that would last forever." - Imran Siddiqui

              Comment


              • #8
                I'm gonna agree with orange, except that I think the concept of a "hate crime" is utter bull****.

                Hate isn't, nor should it be, a crime.
                Follow me on Twitter: http://twitter.com/DaveDaDouche
                Read my seldom updated blog where I talk to myself: http://davedadouche.blogspot.com/

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                • #9
                  So you don't think crimes committed solely because of your intense hate for a group of people should deserve more punishment than a crime of passion?

                  People who commit hate crimes are generally far more likely to do so again than other crimes like that.
                  "The issue is there are still many people out there that use religion as a crutch for bigotry and hate. Like Ben."
                  Ben Kenobi: "That means I'm doing something right. "

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                  • #10
                    So you don't think crimes committed solely because of your intense hate for a group of people should deserve more punishment than a crime of passion?
                    No.

                    Punishing the hate is sorta like thoughtcrime, don't you think?
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                    • #11
                      Originally posted by David Floyd
                      No.

                      Punishing the hate is sorta like thoughtcrime, don't you think?
                      That's not what I said.

                      I said hate crimes, as in, you murder someone because they are black.

                      I think people who commit murder in such circumstances, "hate crimes", as they're called, deserve harsher prison terms than a man who killed his wife in a heated argument. Because the man who killed someone just because of the color of their skin is pretty damn likely to do so again.
                      "The issue is there are still many people out there that use religion as a crutch for bigotry and hate. Like Ben."
                      Ben Kenobi: "That means I'm doing something right. "

                      Comment


                      • #12
                        I think people who commit murder in such circumstances, "hate crimes", as they're called, deserve harsher prison terms than a man who killed his wife in a heated argument.
                        Premeditation probably deserves a harsher punishment.

                        But "hate crime" punishment simply punishes someone for two things - one actual crime, and a thought. I fail to see why we should punish someone for a thought or opinion, even if that person is a Nazi or a KKK member.

                        Because the man who killed someone just because of the color of their skin is pretty damn likely to do so again.
                        He won't kill anyone if he is in prison, right?

                        Well, if murder gets someone a minimum of life in prison with NO possibility for parole, they won't kill anyone else (except for other criminals, but there's no avoiding that anyway). In capital murder situations, it shouldn't be necessary to give "extra" punishment, because the only way the person should leave prison is in a casket.

                        As for something like assault, if someone commits another assault after their prison term, then they should obviously be tried again, and, if convicted, incarcerated again.

                        But just because they beat a black man up because he is black (or a black beating up a white because he is white, which is at least as likely, especially in certain areas), doesn't mean he should receive a harsher punishment.
                        Follow me on Twitter: http://twitter.com/DaveDaDouche
                        Read my seldom updated blog where I talk to myself: http://davedadouche.blogspot.com/

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                        • #13
                          Originally posted by David Floyd


                          No.

                          Punishing the hate is sorta like thoughtcrime, don't you think?
                          The state of the attacker's mind has always been a relevant issues. If you are insane during your crime, you won't be found guilty. Whether or not you were thinking "I am going to try to kill this man" during your action makes up intent and is the difference between murder and manslaugheter. The government has a right to assign additional penalty because of hate, especially due to extra damage you do during a hate crime by instilling fear in the community whose member you targeted out of hate.
                          "I'm moving to the Left" - Lancer

                          "I imagine the neighbors on your right are estatic." - Slowwhand

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                          • #14
                            The state of the attacker's mind has always been a relevant issues.
                            True, but "state of mind" has more to do with insanity and intelligence than with particular emotions.

                            Whether or not you were thinking "I am going to try to kill this man" during your action makes up intent and is the difference between murder and manslaugheter.
                            Of course, it's the difference between an accidental and an intentional act. But I don't see what this has to do with the topic at hand.

                            The government has a right to assign additional penalty because of hate
                            So, by the same argument, should they assign additional punishment to you if you beat someone up because you think beating people up is funny, or should you just be punished for assault and battery?

                            especially due to extra damage you do during a hate crime by instilling fear in the community whose member you targeted out of hate.
                            That's irrational - a serial killer or someone who kills at random would instill more fear, at least to me, than someone who kills based upon a certain racial criteria.

                            Sure, if you're in an all black community, and the killer hates blacks, or an all white community, and the killer hates whites, fear would probably be instilled in the community. But the fear is caused by the fact that a murder took place, not by the fact that someone hates certain people. Hatred doesn't hurt anyone. Actions hurt people, and fearing hatred more than fearing the action of murder is pretty ignorant.
                            Follow me on Twitter: http://twitter.com/DaveDaDouche
                            Read my seldom updated blog where I talk to myself: http://davedadouche.blogspot.com/

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                            • #15
                              insane people cannot control their actions. Thus that doesn't apply.

                              The problem with hate crimes is it only applies to one groupe (white men). I have never seen a person of another gender or race accused of a hate crime. Thus the term is bull**** and should not be used.

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