December 12, 2002
AREN'T THOSE HOODS FLAMMABLE?:
Cross-burning case draws rare comment from Thomas (GINA HOLLAND, December 12, 2002, Chicago Sun-Times)Normally stoic and silent during arguments, Supreme Court Justice Clarence Thomas found his voice Wednesday, condemning cross burning as a symbol of oppression during ''100 years of lynching'' in the South by the Ku Klux Klan. [...]The arguments produced an unusually candid look at the justices, particularly Thomas, who generally speaks only once or twice a year during arguments and refuses to give interviews.
''This was a reign of terror, and the cross was a symbol of that reign of terror. Isn't that significantly greater than intimidation or a threat?'' Thomas, the second black man to serve on the court, asked a Bush administration lawyer who supported the law. [...]
Thomas, who was raised in segregated Georgia, said burning crosses were ''intended to cause fear and terrorize a population.''
"We had almost 100 years of lynching and activity in the South by the Knights of Camellia and the Ku Klux Klan,'' Thomas said.
The last time Thomas spoke so extensively during an argument was 1995, his fourth year on the Supreme Court, in another case involving a KKK cross display. The Klan won in a 7-2 ruling, joined by Thomas.
This is a golden opportunity for the Court to clarify its flag-burning ruling. Cross and flag-burnings may well be covered by First Amendment protections, but, in what would likely be nothing more than dicta, the Court should declare that such actions are Fighting Words and that nearly any reaction from those toward whom such "speech" is directed will be justified as a matter of law. If our constitutional regime really does require that folks be allowed to engage in such behavior--and there seems no good reason why it should--it should also allow for the citizenry to beat the living crap out of them. Ideas do, after all, have consequences. Posted by Orrin Judd at December 12, 2002 11:55 AM
For the last 40 or so years, I've been reading the free speech cases with all their pius pronouncements about marketplaces and freedom for the speech you hate and all that, always wondering if the people saying "A" would always go on to say "B." We know now that it was fraud all along--all lies. Once in power, those who lust after new things are ready to squash free speech like a bug. Burning crosses, without more, is protected by the bright line of First Amendment law. I might feel that people who do so are bad men, but I have no more right to assault them than I do to walk up next to a flag-burner and blow off the top of his head with my snub-nose.
Posted by: Lou Gots at December 12, 2002 11:30 AMHow about this Flag Amendment to the Constitution?
"Congress shall make no law prohibiting the desecrating of the national flag of the United States, nor shall it make any law prescribing the rights of the people to prevent such descration by reasonable and immediate means."
In the early '50s, in southern N.C., the Klan was agitating. There are a lot of Lumbee Indians there, and they objected. Not to Klan racism as such, but because
the Klan was equating redskins with black skins.
The Klan held a big cross-burnin' outside Lumberton one night. Gradually it dawned on the sheetheads that
they were entirely surrounded by the Lumbee nation,
totin's shotguns.
They ran like jackrabbits. Nobody got hurt and nobody
heard from the Klan in those parts for another 30 years.
Is this a great country or what?
There do need to be limits. My proposal is that only honorably discharged Marines be allowed to beat the living crap out of flag- and cross-burners.
Call me "The Voice of Moderation."
Harry,
We had a similar case in Vermont when I was growing up. The Klan heard about Vermont being the whitest state in the nation, I guess and came up to hold a march.
They didn't get very far before being run out of town.
Helps that Vermont has no gun control laws to speak of.
What's astonishing to me is that the Supreme Court is considering multiple cases together. In one some Ku Kluxers burned a cross on their own property, in another some tried to burn a cross on the front lawn of a black man. Now, you have free speech on your own property, but when you're on someone else's property, you have to have their permission to speak - or to burn. That black man should be allowed to fill those trespassers with a bucket of grapeshot. If the Supreme Court applies the same standards to these two cases, the law is a ass.
Posted by: pj at December 12, 2002 2:55 PMYeah, pj, that's what I thought, too.
There are antiNazi laws in Germany, and I am not opposed, in principle, to having anti-crossburning laws here, if the situation is similar enough.
I favor slippage and common sense. It isn't always the best thing to insist on your principles.
To me the question today is, are cross-burnings intimidating? Compared to 1893, when my grandfather had to send his family out of the state and sleep with a loaded and cocked pistol in his hand and a loaded and cocked repeater rifle on the floor by his bed becausethe was going to testify against the Klan (whose leader was also the sheriff), not hardly. But I cannot say just what level of intimidation remains.
I agree with Robert Bork's Indiana Law Review article, which he's repudiated, that neither pornography nor advocacy of overthrowing the constitutional regime are protected by the 1st. The latter enables us to go after communists, klansmen, militias, etc.
Posted by: oj at December 12, 2002 5:13 PMHow is the Klan overthrowing the constitutional regime? They elected their governors at the ballot box, same as you do.
Their violence is illegal but how is it unconstitutional?
PJ;
The USSC must consider these together because the convictions were obtained under the same law. The USSC can only allow or overturn the law - it can't rewrite it.
Segregation is unconstitutional.
Posted by: oj at December 12, 2002 10:27 PMAOG - two points - the Constitution authorizes the Court to judge "cases and controversies," not laws, and these are two cases. The Court's responsibility is to judge the law in each case. The Court in this case has to resolve an apparent contradiction between Virginia law and US law as defined in prior court precedents. If the US law treats the cases differently, then it doesn't necessarily matter that the Virginia law treats them the same - the Court has the opportunity to differentiate them. And it's logically possible that in one case US law could trump Virginia law, but in the other Virginia law could trump US law.
Posted by: pj at December 13, 2002 7:18 AMPJ;
Yech, that's even worse. So the USSC would say "well, you may or may not be convicted depending on whether the USSC feels that, based on facts in the case not specified in either law, that state or federal law has priority". Do you really want to endorse that principle? I would have to consider that ex post facto law, since there's no good way for a citizen to know if the act in question is illegal.
AOG - I only said "logically possible." An example would be a regulation of economic activity that, in one case, burdens interstate commerce, so that US law governs, and in another case does not, so that Virginia law governs.
A more likely outcome in this case would be that US law governs in all cases, and then the US law might distinguish cases that are not distinguished in Virginia law.
But judging from comments, it looks like they'll rule Virginia law governs in all cases.