Cross Burning: Free Speech or Not?

Over the last few years, the difficult question “is cross burning free speech” has been asked repeatedly in court and on the nation’s editorial pages (Richey). Let me preface this discussion by pointing out that I am in a so-called interracial marriage and I am of multi-generational multiracial heritage as well. This particular aspect of my life puts my family within the realm of those likely to be targeted by the type of individual who would burn a cross in hate. I do not come to my conclusions lightly, nor without personal confliction.

Cross burning, in my own view, is a hateful and vile practice. Further, practitioners of such make no excuses for their behavior and often revel in the media attention they receive for such acts. For the offender, it is an opportunity get exposure for their ideas and their names in the newspaper. Cross burning, as practiced by the Ku Klux Klan, Aryan Nations and other fringe groups, is primarily intended to promote a fear-based form of social control and is rooted in a political message (Southern Poverty Law Center). The goal of such acts are often to control access to property ownership and residency in certain locales, based on racial classification or religious affiliation via fear (Burek). A secondary goal of such acts is, of course, to gain free public relations exposure through the almost inevitable media frenzy following such events.

At issue, however, is not the morality of such acts, but rather, their legality. It is possible to be offensive and despicable without breaking the law. The First Amendment to the U.S. Constitution guarantees the citizenry “freedom of speech” and “the right of the people to assemble” and the Fourteenth Amendment guarantees “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. However, the Supreme Court has, in seeming contradiction with the First and Fourteenth Amendments, ruled that some forms of speech are not protected. For instance, in Chaplinsky v. New Hampshire, the Supreme Court ruled that “the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words–those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” are not protected speech. This ruling has sometimes been interpreted to include cross burnings by organization declaring themselves to be expressing a political message on private property (Urofsky 123). However, in 1969, via the Brandenburg v. Ohio decision, the Warren Court reversed its opinion on this matter by ruling that only “incitement to imminent lawless action” was justification for ruling speech as unprotected (Urofsky 120). Simply put, speech that directly leads to violence, rather than just plain ugly speech, was unprotected. However, in 2003, the Supreme Court upheld a fifty year old Virginia law banning all forms of cross burning (CNN). This ruling appears to conflict with the 1969 ruling and the First and Fourteenth Amendments to the Constitution, leaving the impression that this issue is not settled from a legalistic standpoint.

Cross burning can easily be divided into two categories. The first category involves the use of private property for such a political act, with the full permission of the owner. Such acts, committed without trespass, are at the heart of this debate. The second category of cross burning involves trespass by cross burners onto private property with the intent of targeting a specific individual or group of individuals without the property owner’s permission. Such acts can already be punished via laws against trespassing, arson, and vandalism (Southern Poverty Law Center). Such acts do not need a special law to merit punishment based on the thoughts behind them. The mere act of trespass is enough to merit punishment.

The first category of cross burning would seem to fall under the auspices of free speech according to the Brandenburg decision, as the intent is rooted in a political and social agenda, albeit an ugly one, while the second category involves breaking a law or series of laws in the process of making the statement. As a civil libertarian, I would be remiss in my duties and flawed in my principles if I were to advocate to disallow the first category of this despicable act on the basis of message or ideology. Let me qualify that further, by stating that such activity should be considered free speech if it occurs on the private property of a party willing to allow such activity. For example, if hate group leaders like Tom Metzger and Don Black wish to burn crosses in such a manner, according to the Constitution and Brandenberg, that should be their right. That doesn’t make it moral or nice, but the First Amendment isn’t about judging niceties and morality. It’s about protection of the citizenry from government censorship and control. Laws and legal precedent that can used against those we disagree with, can also be used against us when political tides change.

Free speech, especially in the case of such organizations as the Ku Klux Klan or the Aryan Nations is especially troublesome and difficult to tolerate. However, the question at hand is not one of tolerance or agreement, it’s a question of freedom and government control of political dissent. The First Amendment to the Constitution exists as the most important barriers of protection we have against government censorship and suppression of political speech. As distasteful as it is, cross burning, when it occurs on private property with the consent of the owner, fits that description.

We don’t have to like it, but the First Amendment does not exempt expressions of hatred or anger from its protections. That said, if you trespass on another person’s property with the intent of burning a cross, all bets are off. The intent behind your message may be protected, but the acts of trespassing, arson and destruction of property are not.

Annotated Bibliography and Works Cited

Richey, Warren. “Is cross burning a form of free speech?” The Christian Science Monitor. 11 Dec. 2002. 27 Jun. 2004. <http://www.csmonitor.com/2002/1211/p01s01-usju.html>

This article discusses court cases involving cross burnings.

Urofsky, Melvin I. The Warren Court. Santa Barbara: ABC-CLIO, 2001.

An encyclopedia of court cases and Supreme Court decisions occurring during the tenure of Chief Justice Earl Warren.

“Threat vs. Symbol.” Southern Poverty Law Center. 2003. 27 Jun. 2004. <http://www.splcenter.org/intel/intelreport/article.jsp?aid=33>

This report provides some background on the legal aspects of the cross-burning debate.

“Supreme Court upholds Virginia ban on crossburning.” CNN. 7 Apr. 2003. 27 Jun. 2004. <http://www.cnn.com/2003/LAW/04/07/scotus.cross.burning/index.html>

This article discusses court cases involving cross burning.

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