Thursday, April 17

Virginia Cross Burning Case
Erwin Chemerinsky has a fine article in Findlaw, today, on the recent ruling in the cross burning case.  Here's his summary:
"On April 7, in the case of Virginia v. Black, the Supreme Court held that cross-burning with intent to intimidate is not protected by the First Amendment. However, such intent cannot be inferred from the act of cross-burning itself; it must be separately proven.
The decision, though controversial, was clearly the right one. The Court's decision struck exactly the right balance in this difficult area. The First Amendment should not protect the right of people to intimidate or threaten others. But the government cannot eliminate any symbol, however offensive. Speech may be made illegal if it threatens, but not because it offends."

Chemerinsky finds three principles in the case:
1) Government cannot outlaw symbols of hate, no matter how repugnant, or poignant they may be. For instance, "governments seek to ban burning of flags or crosses precisely because these symbols are so widely understood and so effective at conveying particular messages. The Court has held in Texas v. Johnson that flag burning, on its own, cannot be prohibited. The same should be true of cross-burning on its own."
2) Cross burning, with the intent to intimidate, is not protected by the first amendment. "Freedom of speech does not mean anyone has the right to make others feel their safety is threatened."
3) Lastly, the court deals with the issue of proving this intent to intimidate. Virginia wanted to make cross burning prima facie evidence of intent--(which is to say: evidence that is sufficient, by itself, to prove the intent to intimidate). The court, in plurality, ruled that cross burning, by itself, isn't enough to show such intent. Rather, the state will have to prove intent to intimidate.  And in this respect, one might look at the two example cases that were litigated. One dealt with a private gathering of KKK members in an isolated field. The other, with a cross burning in a black family's lawn. Obviously, the intent to intimidate will be easily proven in the latter case, while the former may come under protected speech.

I have to agree with Chemerinsky, and the court's majority/plurality decision on this case. I think they found a way to make a common sense ruling that protects both free speech and freedom from intimidation.