# Need some legal help understanding a CNN article **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [April 7, 2003, 9:34pm UTC](https://boards.straightdope.com/t/need-some-legal-help-understanding-a-cnn-article/167169 "2003-04-07T21:34:34Z")\ **Posts on this page:** 5\ **Page:** 1
**Author:** ![Lord\_Jim](https://avatars.discourse-cdn.com/v4/letter/l/ecccb3/32.png) [@Lord\_Jim](https://boards.straightdope.com/u/Lord_Jim)\ **Post date:** [April 7, 2003, 9:34pm UTC](https://boards.straightdope.com/t/need-some-legal-help-understanding-a-cnn-article/167169/1 "2003-04-07T21:34:34Z")
I’m having trouble understanding this ([**Supreme Court upholds ban on cross burning**](http://www.cnn.com/2003/LAW/04/07/scotus.cross.burning.ap/index.html)) article on CNN’s website. The subtitle is **Rejects free speech claim**. And the opening paragraph reads: > [@](#): > > WASHINGTON (AP) – A divided Supreme Court upheld a state ban on cross burning, ruling Monday that the history of racial intimidation attached to this symbol outweighs the free speech protection of Ku Klux Klansmen or others who might it. Followed by: > [@](#): > > A burning cross is an instrument of terror, and government should have the power to stamp out or punish its use, Justice Sandra Day O’Connor wrote. > > “The protections afforded by the First Amendment … are not absolute,” O’Connor wrote for herself and four other justices. This all seems okay. But then we have: > [@](#): > > Justice Clarence Thomas, the court’s only black member, **dissented** , but made clear his reasons have nothing to do with protecting free speech rights of the Klan. > > Thomas said the court didn’t even have to consider the First Amendment implications because cross burning is clearly intimidation. > > “Just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point,” he wrote. _Emphasis mine_. The article goes on to say how bad cross burning is and how it isn’t protected by first amendment and all that. However, it was curious as to why Justice Thomas, and three others, _dissented_, everyone seems to be on the same page. So, I followed the link to [FindLaw.com](http://FindLaw.com) [**VIRGINIA v. BLACK et al.**](http://laws.findlaw.com/us/000/01-1107.html) If I read this right, what actually happened was that the Supreme Court ruled the law unconstitutional on the grounds that it had a clause _“Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.”_ and overturned one conviction and sent the other two back to the lower court. Please don’t turn this into a debate about the validity of the judgment, but isn’t that article _very_ misleading. It implies, at least to me, that the KKK’s conviction for cross burning was upheld on the grounds that they weren’t protected by the first amendment claim of freedom of speech. When actually, unless I misunderstood (which is a definite possibility), the supreme court didn’t uphold any of the convictions and declared the law unconstitutional and _overturned_ one conviction completely. Did I miss something? Or get completely lost? ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [April 7, 2003, 10:37pm UTC](https://boards.straightdope.com/t/need-some-legal-help-understanding-a-cnn-article/167169/2 "2003-04-07T22:37:53Z")
They upheld the ban “in a certain manner of speaking”, sort of a “yes, but not like this.” The Virginia statute was being attacked on two grounds: 1. Cross burning is constitutionally protected speech; 2. Even if it isn’t, the part of the statute that said that the mere fact that the cross was burned can constitute _prima facie_ evidence of the intent to intimidate. O’ Connor’s opinion was saying cross burning _can_ be protected, but not if it’s meant to send a message of intimidation. However, just the fact that a cross was burned isn’t enough to permit an inference of intent to intimidate; there has to be something more. The Klan burns crosses with no intent to intimidate anybody sometimes. Thomas disagreed with this part, and said that the mere fact that a cross was burned could be considered prima intent to intimidate. He didn’t feel it was necessary to address the First Amendment portion either, since only conduct was regulated, not expression. Because one defendant got a jury instruction that allowed the inference, his conviction has to be overturned. However, the rest of the statute that is constitutionally o.k. may be “severable”; a cross-burning intended to intimidate (if there is independent evidence of intent to intimidate) may be prosecuted by the state. Since the provison may be severable, the other two might be able to be retried. Thomas would have let all three convictions stand. ---
**Author:** ![Lord\_Jim](https://avatars.discourse-cdn.com/v4/letter/l/ecccb3/32.png) [@Lord\_Jim](https://boards.straightdope.com/u/Lord_Jim)\ **Post date:** [April 8, 2003, 2:09pm UTC](https://boards.straightdope.com/t/need-some-legal-help-understanding-a-cnn-article/167169/3 "2003-04-08T14:09:10Z")
Thanks, pravnik. It would have been helpful if the article had mentioned all that. As it was, I couldn’t tell what Thomas was disagreeing with, since it failed to mention that they overturned the convictions and declared the law unconstitutional. Important points it would seem to me if you are writing an article about a supreme court ruling. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [April 8, 2003, 3:11pm UTC](https://boards.straightdope.com/t/need-some-legal-help-understanding-a-cnn-article/167169/4 "2003-04-08T15:11:01Z")
Yeah, the article wasn’t exactly a model of clarity. The decision itself was a little confusing, though, and it was a plurality. The writer was probably rushing to get the piece out. ---
**Author:** ![Munch](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/munch/32/5281_2.png) [@Munch](https://boards.straightdope.com/u/Munch)\ **Post date:** [April 8, 2003, 3:57pm UTC](https://boards.straightdope.com/t/need-some-legal-help-understanding-a-cnn-article/167169/5 "2003-04-08T15:57:41Z")
Just to let you know, there’s a discussion of this case in **Great Debates** currently: [http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=175644](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=175644) And I was confused as hell as well.