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Promethus
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Battle Creek, Michigan
Jan 2002
time: 00:24
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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."
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:24
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I'm gonna agree with orange, except that I think the concept of a "hate crime" is utter bullshit.
Hate isn't, nor should it be, a crime.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:24
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quote:
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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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:24
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quote:
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.
quote:
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.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:24
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quote:
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.
quote:
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.
quote:
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?
quote:
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.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:24
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quote:
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 bullshit and should not be used. |
That is another good point. Further, any court that convicted a black man of a hate crime would probably be tagged as racist, by race baiters such as Jesse Jackson and Al Sharpton (and, as such, by much of the black community, who listen to those two out of ignorance).
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Edan
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IMO, burning a cross could be the same as brandishing an unloaded weapon. Both can easily be considered threatening (especially given the history of cross burning), even if they are not life threatening in and of themselves. Burning a cross in your yard should be protected (although IMO, a 20 or 30 foot high cross burning probably should require a permit, since I imagine it could easily become dangerous). Burning it on someone else's lawn is undeniably not protected. Burning it in a public area, if there is a strong likelyhood that someone will consider it a threatening message against life or limb, not simply free speech, should not be protected, IMO.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:24
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I agree that you shouldn't be able to toss burning crosses on other people's yards, or to plop them down in the public park. But that has nothing to do with making hate a criminal activity.
I doubt anyone here would support making it illegal to burn a cross on your own property, right?
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Shi Huangdi
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Pittsburgh, PA
Apr 1999
time: 00:24
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"True, but "state of mind" has more to do with insanity and intelligence than with particular emotions."
In most cases, but hatred is still a state of mind and I don't see why that can't be used as a basis for further punishment
"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."
You called adding on hate crime penalties a "thoughtcrime" Well that is also what this is here, you are thinking "I am going to try to kill this person", and you recieve additional punishment because the judge believes that was your thought. The judge clearly again has the right to add additional penalty based on thoughts.
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?"
If all I am doing is thinking beating people up is funny, I should not punished. If as a result of that punishment I beat someone up and the government thought it was in good public policy to add additional punishment because of that to add additional punishment, it could.
"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."
Hatred can lead to additional fear that you might be killed because of who you are. What do you think would be more likely to instill a climate of fear: A black person killing a white person who were in a heated argument over a girl, or a black mob lynching a white person screaming "KILL ALL WHITEYS!"?
Or for another example, don't you think there would be a difference in the effect cause if you spraypainted grafiti that said "YO DAVID FLOYD BE DA ORIGINAL PIMP MASTA!" then if you spraypainted "KILL ALL NIGGERS!"?
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Bereta_Eder
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Why would anyone want to burn a cross for heaven's sake? (assuming he isn't KKK)
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chegitz guevara
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Ft. Lauderdale, FL Communist Party of Apolyton
Jun 2000
time: 00:24
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Burning a cross is not protected speech but illegal speah. Yes, even in the US there is such a thing. Threatening words, i.e., statements of intent to harm, which is what burning a cross on someone's yard represents, are illegal. Nor do they deserve protection.
Buning a cross at a private Klan Rally is different. There it is being used to communicate to a different audience.
To put it another way, if someone tried to burn a cross on your front lawn, you would be justified in using deadly force to confront them. If you were driving down the road and you saw a rally burning a cross in farm off in the distance, you would not be justified in trying to break up the rally with a gun.
Dissident, and David Floyd, the primary defendents against hate crime prosectutions have been Black.
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Caligastia
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Obviously burning a cross on someone else's property does not come under "free speech", but on your own property it shouldn't be a problem.
Hate crime = thought crime
Don't punish thoughts, punish crimes.
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Caligastia
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quote:
Originally posted by SlowwHand
I was curious if anyone would ask the question.
To me, burning a cross, or the flag, is not free speech.
Period. End of discussion.
If I should see it happening, it would be dealt with severely.
I know I antagonize frequently, but this time, I'm not kidding. |
You don't think people should be allowed to do these things on their own property?
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Apolyton Time is 00:24. |
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12-12-2002 10:08
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