Virginia v. Black

Great Debates
1

Oral arguments wrapped up in Virginia v. Black earlier this week. The issue in the case is whether a state statute that prohibits the burning of a cross with the intent to intimidate violates the First Amendment.

Background: In 1992 the court decided unanimously that a St. Paul ordinance prohibiting any symbol which “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” was overly broad in scope. They struck the law down when three teenagers allegedly burned a cross across on the lawn of a black family.

So how is Virginia v. Black different? It narrows down what’s illegal so it’s not overly broad in scope, but I don’t understand how it’s not a content-based restriction on speech.

It’s content based because it specifically targets one form of speech for restriction. Those that wish to express themselves through the burning of a cross can no longer do so. Other people are able to through a variety of means but those wishing to burn a cross have no alternate method of expression.

Now, the counter argument to this is that cross burning is hate speech. It is obscene speech. It is threatening speech and it is therefore not protected under the 1st amendment.
But if ALL cross burnings were threatening in nature, then the phrase “with the intent to intimidate” would be superfluous, wouldn’t it? So by that logic not all cross burnings are used to intimidate.

If this is true, then there must be some instances of it being protected speech. It must be sending some sort of message worthy of protecting. So then perhaps even cross burnings meant to intimidate have messages worthy of being protected.

If this is so, where do our priorities lie? Protecting the 1st amendment or protecting people from intimidation? Is this case distinguishable from RAV v. City of St. Paul? Is this a content neutral law in Virginia? Should cross burning be a valid form of expression (i.e. does it carry a message)?
How do you think the court will decide anyway?

2

I tend to be something of a First Amendment absolutist, my reaction to “hate speech” is similar to my reaction to “hate crime”: it is impossible to know what is on the mind of anyone at any time. A man may be accused of being motivated by hate in the commission of a crime, but if he denies it, what evidence can be offered to contradict his denial?

As to cross burning, the message is, of course, repugnant. But if someone wishes to associate himself with such views, I say let them, let them be seen, let us know who they are, that we may argue with them.

At bottom, the message “Hate the blacks, the Jews, etc.” is a political message, and all such are protected by the First Amendment. I do not admit that anyone has a right to determine what is an “acceptable” political message, not even such an enlightened person as myself.

3

There is already a thread about the case.
http://boards.straightdope.com/sdmb/showthread.php?threadid=149512

4

From my understanding of the statute, burning a cross is still legal, it’s burning a cross WITH THE INTENT TO INTIMIDATE that is illegal. Cross burning may be done where it is not threatening in nature (on your own property with no one around to see it), so that may not be an issue. And you’re absolutely right that cross burnings meant to intimidate have a message, that message being “I hate you because of the color of your skin or your religion, and I’m going to come after you next.” That message is not one that should be protected.

5

Gah, I looked around the first couple of GD pages for anything dealing with the Supreme Court or Virginia and couldn’t find this topic. I didn’t actually do an actual search though. Thanks for pointing it out, sua
Sorry for the repeat topic. The other one ended 3 days ago so I’ll leave it to the mods to determine if we should keep this thread open or resurrect the other one.