Eleanor Finch
Cross-burning, a practice with roots in 14th-century Scotland, has been used as a form of intimidation against African Americans and Jews, and has been defended in US courts on free speech grounds. The constitutionality of laws banning cross-burnings has been addressed in two seminal rulings: R.A.V. v. St.Paul (1992) and Virginia v. Black (2003). While the former held that the Bias-Motivated Crime Ordinance of St. Paul, Minnesota, was unconstitutional due to its targeted focus on symbols inspiring hatred based on specific attributes, Virginia v. Black deemed a similar Virginia statute unconstitutional, as it violated the Fourteenth Amendment by presuming the intent to intimidate from the action of cross-burning. This case reaffirmed the absence of a hate speech exception to the Free Speech Clause, while upholding the government's power to prohibit intimidation that inspires fear of bodily harm.
| Characteristics | Values |
|---|---|
| Cross burning is considered "speech" under the | First Amendment |
| Burning a cross with the intent to intimidate | is unconstitutional |
| Burning a cross without the intent to intimidate | is constitutional |
| Burning a cross on public property | is constitutional |
| Burning a cross on private property | is unconstitutional |
| Burning a cross on the property of another | is unconstitutional |
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What You'll Learn
The historical context of cross-burning
The practice of cross-burning dates back to 14th-century Scotland, where tribes used it as a signalling device. However, the modern use of cross-burning is directly linked to the revival of the Ku Klux Klan (KKK) in the early 20th century. The KKK was created by former Confederate officers to impede Reconstruction in the South and terrorize newly freed slaves. Cross-burning became an important ritual of group solidarity for the KKK, often accompanying violent acts such as lynchings.
In 1915, D.W. Griffith's controversial film "The Birth of a Nation" depicted a burning cross and played a significant role in the revival of the KKK. Shortly after the film's release, a cross was burned on Stone Mountain, outside Atlanta, Georgia, and soon after, another cross was burned in Marietta, Georgia, to celebrate the lynching of Leo Frank, a Jewish factory manager. As the KKK grew in numbers and influence, cross-burning became even more closely associated with intimidation and violence, particularly towards African Americans and Jews.
In 1967, Wilson Ralph Price and Nanny Jane Price were arrested and convicted for burning a cross on a public sidewalk in Richmond, Virginia. The Virginia Supreme Court overturned their conviction the next year, finding that the ban did not apply to public property. This led to the amendment of Virginia's law to include public property and specify that the burning of a cross was "prima facie evidence of the intention to intimidate a person or group of persons."
The constitutionality of cross-burning laws was not fully addressed by the Supreme Court until the early 1990s, with the cases R.A.V. v. St. Paul (1992) and Virginia v. Black (2003). In R.A.V. v. St. Paul, the Court held that the Bias-Motivated Crime Ordinance of St. Paul, Minnesota, was unconstitutional because it targeted the display of symbols that inspired hatred based on race, colour, creed, religion, or gender, but did not consider other characteristics. In Virginia v. Black, the Court reaffirmed that there is no "hate speech" exception to the Free Speech Clause, but there is an exception for true threats of violence, whether bigoted or not.
In conclusion, the historical context of cross-burning is deeply rooted in the KKK's intimidation and violence towards African Americans and Jews. While the practice has been defended on free speech grounds, courts have also recognized its long and pernicious history as a signal of impending violence and taken steps to prohibit it when accompanied by the intent to intimidate.
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The constitutional right to free speech
In the United States, the First Amendment guarantees freedom of speech, which includes symbolic expression. Burning a cross is considered symbolic speech, similar to displaying a cross, burning a flag, or flying a flag. The Supreme Court has long held that even hateful and bigoted speech is protected under the First Amendment. However, there is an exception to this right when it comes to true threats, which are defined as statements made with the intent to intimidate or cause fear of bodily harm.
In the case of Virginia v. Black, the Supreme Court addressed the constitutionality of laws banning cross-burning. The Court found that while cross-burning may be considered constitutionally protected speech, there are circumstances under which it can be banned. Specifically, the Court held that a state may prohibit cross-burning carried out with the intent to intimidate, as such an act falls under the category of true threats and is therefore not protected by the First Amendment.
The Court's decision in Virginia v. Black was based on the O'Brien test, which allows for the restriction of conduct within the constitutional power of the government if it furthers an important government interest unrelated to the suppression of speech, and the secondary effect on speech is minimal. In the case of cross-burning, the Virginia legislature satisfied the O'Brien test by restricting only cross-burning done with the intent to intimidate, as this practice has a long history as a signal of impending violence.
While the Supreme Court has set a precedent for banning cross-burning with the intent to intimidate, the line between constitutionally protected speech and true threats can be blurry. For example, in the case of R.A.V. v. St. Paul, the Court held that a statute banning the display of symbols that inspired hatred based on race, color, creed, religion, or gender was unconstitutional because it was viewpoint discriminatory. This decision highlights the complexity of balancing the right to free speech with the need to protect individuals from true threats.
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The intent to intimidate
The act of burning a cross has been used as a form of intimidation against African Americans and Jews and has been defended in court on free speech grounds. Cross burning has been practised since the 14th century in Scotland, where tribes burned crosses as signalling devices. However, its modern use is directly linked to the revival of the Ku Klux Klan in the early 20th century. The 1915 film *The Birth of a Nation*, which played a crucial role in the revival of the Klan, depicted a burning cross. Shortly after the film's release, cross burnings were observed in Georgia, celebrating the lynching of Leo Frank, a Jewish factory manager. As the Klan grew in numbers and influence, cross burning became an important ritual of group solidarity.
In 1967, Wilson Ralph Price and Nanny Jane Price were arrested and convicted for burning a cross on a public sidewalk in Richmond, but the Virginia Supreme Court overturned their conviction the following year, finding that the ban did not apply to public property. In response, the Virginia Legislature amended the state law to include public property and specified that "the unlawful burning of a cross shall be prima facie evidence of the intention to intimidate a person or group of persons."
The constitutionality of these laws was not considered by the Supreme Court until the early 1990s, when it issued rulings in R.A.V. v. St. Paul (1992) and Virginia v. Black (2003). In R.A.V., the Court held that the Bias-Motivated Crime Ordinance of St. Paul, Minnesota, was unconstitutional because it targeted the display of symbols that inspired hatred based on "race, colour, creed, religion, or gender". In Virginia v. Black, the Court considered the speech to be constitutionally unprotected "true threats". Justice Sandra Day O'Connor stated that "a state, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate." The Court further clarified that a state may prohibit "those forms of intimidation that are most likely to inspire fear of bodily harm."
In the case of Virginia v. Black, the Court found that Virginia's statute against cross burning was unconstitutional with respect to the text that stated, "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." This text was deemed unconstitutional as it violated the Fourteenth Amendment by presuming that the act of cross burning indicated an intent to intimidate. The Court held that the inference of intent drawn from cross burning could be rebutted by a defendant and that the prosecution bore the burden of proving intent beyond a reasonable doubt.
The Supreme Court has reaffirmed that there is no "hate speech" exception to the Free Speech Clause, but there is an exception for threats of violence, regardless of their nature. The Court has also stated that cross burning, as an expressive activity, is protected by the First Amendment. However, cross burning with the intent to intimidate can be punished by general laws banning threats and by laws specifically targeting cross burning due to its association with violence.
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The constitutional power of the government
Cross burning has a long and pernicious history as a form of intimidation against African Americans, Jews, and other minority groups. It is often associated with violent and racist ideologies, particularly those espoused by the Ku Klux Klan. The practice dates back to 14th-century Scotland, where tribes burned crosses as signalling devices. However, its modern use is directly linked to the revival of the Ku Klux Klan in the early 20th century, as depicted in the controversial film "The Birth of a Nation".
The constitutionality of cross burning has been the subject of several landmark court cases, including R.A.V. v. St. Paul (1992) and Virginia v. Black (2003). In these cases, the Supreme Court addressed the constitutional power of the government to prohibit cross burning and the interpretation of such acts as "true threats". The Court affirmed that while symbolic expression, including cross burning, is protected by the First Amendment, there is an exception for threats of violence.
In Virginia v. Black, the Court found that the Virginia statute against cross burning was unconstitutional with respect to the text that stated, "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." This text was deemed to violate the Fourteenth Amendment as it shifted the burden of persuasion regarding the intent to intimidate from the prosecution to the defendant. However, the Court upheld the constitutional power of the government to restrict cross burning when carried out with the intent to intimidate, as this furthered an important government interest unrelated to the suppression of speech.
In conclusion, the constitutional power of the government regarding cross burning is delicately balanced between protecting freedom of speech and prohibiting true threats. The interpretation of intent and the historical context of cross burning as a symbol of intimidation play crucial roles in determining the constitutional boundaries of such expressions.
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The Supreme Court's rulings
The constitutionality of laws banning cross-burning reached the Supreme Court in the early 1990s, resulting in two significant rulings: R.A.V. v. St. Paul (1992) and Virginia v. Black (2003). These cases addressed the legality of prohibiting cross-burnings and prompted discussions about the practice's historical context in the United States.
In R.A.V. v. St. Paul, the Court deemed the Bias-Motivated Crime Ordinance of St. Paul, Minnesota, unconstitutional due to its targeted focus on symbols inspiring hatred based on "race, color, creed, religion, or gender." Justice Antonin Scalia argued that the statute was discriminatory as it allowed one side of a debate unrestricted freedom while constraining the other.
In Virginia v. Black, the Court reviewed two incidents. In the first, Barry Black burned a cross at a Ku Klux Klan (KKK) rally on private property with the owner's consent. Black was charged under a Virginia law prohibiting cross-burning with the intent to intimidate. However, the Court found that his primary intention may have been to express racist solidarity rather than intimidate. In the second incident, Richard Elliot and Jonathan O'Mara attempted to burn a cross on a black neighbour's lawn. In this case, the Court determined that the act was intended to intimidate and could be punished under general laws banning threats and those specifically targeting cross-burning due to its historical association with violence.
The Supreme Court held that burning a cross constitutes "'speech' under the First Amendment, similar to displaying a cross, burning a flag, or flying a flag. While these forms of expression differ morally, they are all symbolic statements. Justice O'Connor's opinion emphasised that burning a cross as a statement of racist ideology and solidarity was "lawful political speech."
The Court's rulings in Virginia v. Black reaffirmed the absence of a "hate speech" exception to the Free Speech Clause, although threats of violence, regardless of bigotry, are exempt. The Court also clarified that the Fourteenth Amendment prohibits jury instructions that presume the intent to intimidate from the act of cross-burning alone, shifting the burden of persuasion to the defendant. Instead, the prosecution must prove the intent element beyond a reasonable doubt.
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Frequently asked questions
No, cross-burning is not protected by the Constitution. However, the Supreme Court has affirmed that there is no "hate speech" exception to the Free Speech Clause, and the First Amendment protects symbolic expression.
Cross-burning is considered a "true threat" and is therefore not protected by the First Amendment. The Fourteenth Amendment also prevents a jury instruction that assumes the intent to intimidate from the act of cross-burning alone.
Cross-burning has been used as a form of intimidation against African Americans and Jews. The practice dates back to 14th-century Scotland, where tribes burned crosses as signaling devices. The modern use of cross-burning is linked to the Ku Klux Klan, which used it as a ritual of group solidarity.
In Virginia v. Black, the Supreme Court found that while cross-burning with the intent to intimidate is unconstitutional, the state's statute against cross-burning was also unconstitutional in that it provided the presumption that cross-burning was evidence of the intent to intimidate.
Notable cases include Virginia v. Black, R.A.V. v. St. Paul, and the Nuremberg Files case, which involved implicit threats against abortion providers.
