What an odd majority. That means there was a minority of Kennedy, Souter, Thomas and Ginsburg.
This is one of those great cases where “party” ideology doesn’t put you down on one side of the decision or the other.
I wish more peoplesaw cases like this so that they would have faith in the SCOTUS. Not all decisions are 5-4 “straight” party decisions. Even if you disagree with this particular 5-4 ruling, you can’t say it is the work of political hacks.
As for the ruling itself, I have a bit of a problem with treating the two cases the same.
Sure it should be illegal to burn a cross in someone’s yard (that is a crime even if you are burning an old shoe or something), but the prohibition from burning it on private land strikes me as too over reaching.
As long as the expressive speech doesn’t expressly incite violence, should the SCOTUS define meaning, however obnoxious the cause?
Is the incitement of violence the only symbolic meaning of cross burning? Couldn’t it be a symbol to unite racists in common cause?
Interesting. I didn’t know that Justice Thomas was capable of disagreeing with Justice Scalia.
As far as the issue at hand goes, I’m a staunce libertarian, so it should strike nobody as odd that I find it erroneous. Burning your own cross on your own land with your own fuel terrorizes nobody in particular. That doesn’t make it a particularly nice thing to do, but the standard should not be niceness. Certainly the standard should not be whether one can work the word “terror” into one’s decision somehow. That’s the bit that peeves me.
I was thinking the same thing. And if you told me that they were going to disagree on the burning cross ban, I certainly would’ve assumed that Thomas would be the one voting for the ban.
Is the case up on Findlaw yet? I couldn’t find it. Reading the article, it sounds more like Thomas wrote a concurrence rather than a dissent. I’ll have to see how exactly he voted.
As for the decision, I’m disappointed. Generalized intimidation is a core part of political speech, unfortunately. What this ruling does (based only on the article) is find that some forms of intimidation are acceptable and some are not. And that’s a problem.
It’s silly. Outlaw cross buring and the KKK will find something else to burn, like giant circles. Then you outlaw circle burning and they move on to triangles.
Could you elaborate on this? I’ve no doubt that you’re right, but I’ve never heard the term “generalized intimidation” before, much less heard that it was okay; in fact, I thought that the Southern Poverty Law Center sued the pants off the KKK because of their advocacy of violence against black people in general.
The article is written very confusingly. Most of Thomas’s quotes seem to be in agreement with the majority, except for this paraphrase, "Thomas said in apparent exasperation that a government lawyer was providing only tepid, legalistic justification for the Virginia law. "
Question: Do cross burning cases like this ever really “intimidate” anyone anymore, or do they have the opposite effect of provoking outrage, defiance, and lawsuits?
Does this mean that Skokie, Ill. could pass a law preventing the Nazis from displaying a swastika when they march through there, so long as the law is couched in terms that the symbol is meant to intimidate? I mean, when you march through a Jewish community with a big-assed swastika banner, you’re not exactly asking the residents out to tea.
Can we now pass a flag-burning law so long as it is burned “with intent to intimidate?” Some guy wearing a shirt saying “9/11 was just the beginning” burns a flag – could that be prosecuted under such a law?
My impression from another article was that Thomas wrote his own supporting opinion. He was even more in favor of banning cross burning than the majority was.
Quite frankly, a political ad that says, “Vote for me because the other guy will cause a recession and you will lose your job and house,” is a form of intimidation.
I know people will say that there is a difference in kind between that and cross-burning, but I contend that there is only a (very large) difference in degree.
Well, I would see it as a degree of difference if it said, “Vote for me because if you don’t, I’ll do all sorts of illegal stuff to cause a recession.”
My (admittedly non-lawyerly) understanding of the burning-cross’s intimidation is that it’s
Symbolizing that the cross-burner is going to do harm to some folks, and
They’re going to commit that harm via illegal acts.
If I put on an ad threatening you with harm if you don’t vote with me, but I don’t threaten to be the one harming you, and/or I don’t threaten to harm you via illegal acts, it seems my intimidation is different in both kind and degree from a crossburner’s intimidation.
http://volokh.blogspot.com/ As I recall, this result was supported by several Dopers on this panel. Generalized threats are free speech; specific threats to individuals can be banned.
That makes thing a lot clearer. Clearly it can’t be legal to burn a cross (or anything else) on someone else’s property (i.e., w/o their consent). Is it felt that a mere “vandalism” statute is too light? I’m not sure what the penalty might be (w/o the law in question here) for this type of behavior.
Yeah. It was one of those multi-part, shifting majority decisions.
Daniel said,
That is what the court and the Va. Legislature seemed to suggest. But the question is: aren’t we putting words in people’s mouth? Aren’t we defining what THEIR expressive thought means?
I tend to agree that anyone who burns a cross is probably doing it to intimidate, but as with all other things criminal, I think the burden should be on the state to establish a prima facie case of intimidation.
