Hunting The Muse

Supreme Court and Cross Burning

Absolutely fascinating article on NPR yesterday about the cross-burning case that is before the Supreme Court right now.

So, do you think cross-burning should be illegal? Think on that. Okay, now. Do you think flag-burning should be illegal?

That's what stopped me. Reflexively, I answer "Yes" and "No". That's the knee-jerk inconsistent liberal in me. Well, that WOULD be assuming that the two subjects are inherently similar enough that I need to be consistent between the two. But maybe I don't.

And that's the legal argument - that the two issues are substantively different in some way. And the justice comments that I heard yesterday are really hammering on that to see if the argument holds up. Really interesting.

One issue they have trouble with. The issue is challenging an existing statute banning cross-burning because of its "intent to intimidate". The "intent to intimidate" has to be proven for conviction. However, it's also held that burning a cross proves "intent to intimidate" in the first place. It's circular logic. That's what law is like, they remove the emotionality and check to see if there are things like circular logic.

Other comments:

"So you burn a cross on a hill outside the city, everyone in the city is intimidated?" - Justice Kennedy

"It's not just speech. It's action that conveys a message. Surely your state can make it a crime to brandish a weapon?" - Justice Scalia

"Suppose he burned a circle?" - Justice Stevens.

"So even if a cross is burned in a desert somewhere, it's enough to sustain a conviction?" - Justice Stevens.

"It sounds like you're defending the statute because the message it contains is particularly obnoxious." - Justice Stevens.

"One can always burn a cross in the sanctity of one's bedroom." - Justice Scalia.

(paraphrase:) "Why is burning a cross protected speech when brandishing a weapon and saying 'you're next' isn't?" - Justice Scalia. And here's a funny section from an article, describing the shocking occurence of actually hearing CLARENCE THOMAS say something:

Out of nowhere booms the great, surprising "Luke-I-am-your-father" voice of He Who Never Speaks. Justice Clarence Thomas suddenly asks a question and everyone's head pops up and starts looking madly around, like the Muppets on Veterinarian Hospital. "Aren't you understating the effects ... of 100 years of lynching?" he booms. "This was a reign of terror, and the cross was a sign of that. ... It is unlike any symbol in our society. It was intended to cause fear, terrorize."

Dreeben, who fears he has somehow been insensitive, tries to recover. "It was used to intimidate minorities ..." he begins. "More than minorities," booms back The Voice. "Certain groups." It's not clear what, precisely, has set Thomas off about Dreeben's presentation or why he's attacking the deputy SG rather than the guy defending the Klansman. But as quickly as he wound up, he winds down, and resumes his standard posture of staring fixedly at the ceiling.

To which I say, Yeah. Weird. Dreeben was the guy DEFENDING the statute that outlaws cross-burning.

More fascination:

Smolla argues that every KKK rally ends with a cross-burning; that it's inconceivable that this actually scares people. Ginsburg points out the "huge" difference between burning a flag, which symbolizes political protest, and burning a cross, which signifies "a threat to life and limb." Again Scalia wonders why brandishing a gun differs from burning a cross. When Smolla notes that guns kill, Scalia says, "An unloaded gun then. It's nothing but a symbol!" Smolla insists that guns are actual threats and adds, "What's the difference between brandishing a cross and a torch?"

"A hundred years of history," replies Stevens.

Posted by Curt at December 12, 2002 12:55 PM