Simone Lawson
The burning of a cross is considered a hate crime, but it is protected by the First Amendment of the Constitution of the United States. The First Amendment protects freedom of speech, and the burning of a cross can be considered a statement of ideology or a symbol of group solidarity. However, if the act is used as a direct threat or to intimidate, it is not protected by the Constitution.
| Characteristics | Values |
|---|---|
| Protected by the Constitution | Yes, when not used as a direct threat |
| Considered hate speech | Yes |
| Protected by the First Amendment | Yes, when used as a statement of ideology or a symbol of group solidarity |
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What You'll Learn
- Cross burning is protected by the Constitution if it is not used as a direct threat
- Cross burning is protected by the First Amendment if it is a statement of ideology
- Cross burning is protected by the First Amendment if it is a symbol of group solidarity
- Cross burning may be considered 'core political speech'
- Cross burning may be considered hate speech
Cross burning is protected by the Constitution if it is not used as a direct threat
Cross burning is protected by the First Amendment of the Constitution of the United States if it is not used as a direct threat. The act of burning a cross may be interpreted as a person engaging in constitutionally proscribable intimidation, or it may be interpreted as a person engaging in core political speech.
In 2005, the U.S. Supreme Court upheld a VA cross-burning ban but sent the law back to the state court for refinement. The court reaffirmed free speech by making it clear that cross-burning is protected by the Constitution when it is not used as a direct threat. Justices O'Connor, Stevens, Rehnquist and Breyer wrote that the burning of a cross, if used as a "statement of ideology" or a "symbol of group solidarity," is protected by the First Amendment.
Under the First Amendment, 'hate speech' is constitutionally protected unless the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in 'hate speech', under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence.
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Cross burning is protected by the First Amendment if it is a statement of ideology
The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that a State will prosecute—and potentially convict—somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.
Under the First Amendment of the Constitution of the United States, ‘hate speech’ is constitutionally protected unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in ‘hate speech’, under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence.
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Cross burning is protected by the First Amendment if it is a symbol of group solidarity
However, this is only the case if the cross burning is not used as a direct threat. The Supreme Court has also stated that the act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation, which is not protected by the First Amendment.
Kent Willis, Executive Director of the American Civil Liberties Union of Virginia, commented on this, saying: "We are pleased that the court reaffirmed free speech by making it clear that cross-burning, when it is not used as a direct threat, is protected by the Constitution."
The First Amendment protects 'hate speech' unless the speaker intended to threaten violence or provoke an immediate act of violence.
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Cross burning may be considered 'core political speech'
Cross burning may be considered core political speech. The First Amendment protects the burning of a cross if it is used as a "statement of ideology" or a "symbol of group solidarity". However, it is not protected by the Constitution if it is used as a direct threat or to intimidate.
The Supreme Court has upheld a VA cross-burning ban but sent the law back to state court for refinement. The court reaffirmed free speech by making it clear that cross-burning, when it is not used as a direct threat, is protected by the Constitution.
Four of the five Justices in the majority held that the presumption of intimidation in the Virginia law is unconstitutional on its face. Justices O'Connor, Stevens, Rehnquist and Breyer wrote that even when burning a cross may mean that a person is engaging in constitutionally proscribable intimidation, the same act may also mean only that the person is engaged in core political speech.
The First Amendment protects 'hate speech' unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in 'hate speech', under the First Amendment, a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence.
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Cross burning may be considered hate speech
In 2005, the U.S. Supreme Court upheld a VA cross-burning ban but sent the law back to state court for refinement. The court reaffirmed free speech by making it clear that cross-burning, when it is not used as a direct threat, is protected by the Constitution. Justices O'Connor, Stevens, Rehnquist and Breyer wrote that the burning of a cross, if used as a "statement of ideology" or a "symbol of group solidarity," is protected by the First Amendment.
However, it is important to note that the act of burning a cross may also be considered constitutionally proscribable intimidation. The Supreme Court has recognised that the line between political speech and intimidation is blurred, and that prosecuting someone for burning a cross could chill constitutionally protected political speech.
In conclusion, while cross burning may be considered hate speech, it is protected by the First Amendment unless there is a clear intention to threaten or provoke violence.
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Frequently asked questions
Yes, the burning of a cross is protected by the First Amendment, as long as it is not used as a direct threat.
Burning a cross may mean that a person is engaging in constitutionally proscribable intimidation, or it may mean that the person is engaged in core political speech.
The Supreme Court has upheld a VA cross-burning ban, but sent the law back to state court for refinement. Four of the five Justices in the majority held that the presumption of intimidation in the Virginia law is unconstitutional on its face.
Under the First Amendment, a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence.
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