Jewish World Review Dec. 17, 2002 / 12 Teves 5763
To rob a burning cross of its power
Slowly but surely we are discovering what it takes to get a rise out of the usually mute Supreme Court Justice Clarence Thomas.
This time it took a burnt cross.
In his decade or so on the high bench, Thomas has earned a reputation as The One Who Does Not Speak.
When he does speak in public, it is usually to nonpartisan youth groups or adult conservatives. On one such occasion, during a broadcast by C-Span a few years ago, he told some middle-school students that he grew up avoiding public speeches because he had an embarrassing speech impediment. As someone who grew up with the three impediments of stuttering, dark skin and the first name "Clarence," I sympathized.
But my fellow Clarence rose to full voice in the case of Virginia vs. Black.
The question was whether a state may make it a crime to burn a cross without stomping all over the protection that the First Amendment gives to symbolic expression.
As usual, it was not clear which way the court was going to lean in this case, which concerns a 50-year-old Virginia law.
Then Justice Thomas spoke. A burning cross is indeed highly symbolic, he said, but only of something that does not deserves any constitutional protection, recalling the "reign of terror" that the Ku Klux Klan visited on black communities for almost 100 years before Virginia passed the law.
A burning cross is "unlike any symbol in our society," he said. "There's no other purpose to the cross, no communication, no particular message," he continued. "It was intended to cause fear and to terrorize a population."
On that point, Thomas gets no argument from me. The burning cross is intended to cause fear, rage and terror. The question is how we should best respond to it.
Thomas' statement seemed to have a riveting effect on his fellow justices. By all accounts, those who previously sounded doubtful about the constitutionality of Virginia's statute now sounded more convinced that they could uphold it without dancing a flamenco on the Bill of Rights.
Nevertheless, while I am no fan of burning crosses or of those who burn them, I cannot help but wonder whether there's a better way to put handcuffs on threatening behavior by bigots and others without getting embroiled in the quality of the "speech" they are trying to convey.
Besides, if this court decides to ban cross burning, I shudder to think what it might decide to ban next.
Bans against flag-burning, for example, came within one vote of being upheld by the high court in 1989.
That time around, both the liberal Thurgood Marshall, whose seat Thomas fills, and the conservative Antonin Scalia, with whom Thomas most often votes, voted against the flag-burning ban.
That, to me, was a relief. As a patriot and a Vietnam-era veteran, I find the act of burning Old Glory to be despicable. Yet I am also proud of how the constitution allows flag burners to make their clearly political statement without worrying about being thrown in jail. That freedom offers ironic evidence of why the flag is worth fighting for.
And what if the draft comes back? Will draft-card burners risk having that form of speech curtailed? Maybe not. In the 1968 decision, U.S. vs. O'Brien, the high court sidestepped that issue by allowing that the draft-card burning protestor had violated the Selective Service requirement that we who happened to be draft bait had to keep the card in our "personal possession at all times."
Similarly, there are ways to outlaw threatening or intimidating behavior without banning speech. A cross burner on my property, for example, is guilty of trespassing and probably vandalism and other offenses and should be prosecuted as such.
In addition, "hate crime" laws have been upheld when they have provided for additional punishment for criminal acts, like cross-burning, that obviously were motivated by bigotry.
Any law that tries to judge thought is problematic. Banning the expression of an idea, however despicable, invites future bans on other ideas that might not be as despicable.
The foundation of our Constitution, Justice Oliver Wendell Holmes Jr. once wrote, is "free thought - not free thought for those who agree with us but freedom for the thought that we hate."
As an African-American, I appreciate the emotional power of the burning cross as a symbol. I also resent the notion that any bonehead with a match, lighter fluid and a couple of sticks can send me into irrational spasms of rage.
When I refuse to lose my mind over the bigotry of others, that bigotry loses some of its power over me. I hope it loses that power over the Supreme Court as well.
Enjoy this writer's work? Why not sign-up for the daily JWR update. It's free. Just click here.
Comment on JWR contributor Clarence Page's column by clicking here.
12/03/02: Closing black-white test-score gaps
11/19/02: Uncle Same wants your data
11/15/02: Marriage vs. 'player' impulse
11/11/02: How Oz can help the Dems
11/05/02: We reserve right to be complicated
10/22/02: What the pro-gun lobby and anti-gun lobby have in common
10/18/02: Take Sharpton seriously? For Prez??
10/15/02: A beauty and the bullies
10/08/02: Time to start 'fingerprinting' bullets
10/08/02: Poet laureate hater fell for Internet hoax
10/04/02: Keeping it real, despite howls from black 'leaders'
10/01/02: Revisiting the 'Jogger' horror
09/27/02: Sometimes freedom is a necessary nuisance
09/13/02: Foil Fidel with free trade
09/10/02: Measuring the myth of 'super weed'
09/06/02: A year later: A reality-check
09/03/02: Make better choices before some jury somewhere does
08/20/02: Bid farewell to the Cigarette Century
08/16/02: Rights matter, even in circus trials
08/09/02: Jousting with Rumsfeld's fog of wit
08/06/02: Covert action is cool again
08/01/02: Powell's premature obituaries
07/30/02: A common sense tip on internal snooping
07/18/02: Jacko plays race card badly
07/12/02: Last flight for a pioneer airman
07/08/02: Dems will miss Watts, too
06/28/02: 'Supreme Court reads polls, too
06/25/02: 'The Body' bites, then bows out
06/21/02: Punishment first, then the crime?
06/18/02: Reporting still risky for Haiti's press
06/14/02: Bush's security plan leaves large gaps
06/04/02: Fix FBI's culture gap first
05/28/02: Fidel's new apartheid for tourists
05/21/02: Now McKinney's lunacy sounds like the Democratic Party line
05/19/02: A paradox of historical proportions
05/14/02: 'Murphy Brown' revisited in age of Ozzy
05/10/02: America looks like a model of tolerance and inclusion
05/07/02: Forget it, Bill, you're no Oprah
04/26/02: Mapping out ethnic and racial change
04/23/02: A game of another color
04/19/02: It's high time to open up pot-law debate
04/11/02: 'Osbourne' family values rock, aging Ozzy quakes
03/22/02: Zimbabwe election leaves world sleepless
03/19/02: A slur? Where is thy sting?
03/15/02: A Pearl of wisdom for reporter's unborn son
03/12/02: Army race and gender policies on trial
03/08/02: A short list of losers to be left behind
03/05/02: Revenge of the 'mediasaurus'
02/26/02: Jihads aren't just for Muslims
02/26/02: It's hard to be 'objective' during wartime
02/19/02: Hollywood's new villain: Your HMO
02/12/02: Father of 'Manchild' leaves lasting message
02/08/02: $nookering the reparations crowd
01/31/02: Prisoners of a War of Words
01/29/02: One more Enron woe: Al Sharpton & company
01/25/02: Searching for slaves in bin Laden's attic
01/22/02: Andrew Young's newest 'friend'
01/08/02: Hard-earned lessons from 9-11
12/18/01: Whatever happened to questions about the birds and the bees?
12/14/01: The "White Negro" Taliban?
12/07/01: Jackson's turn to gloat
11/27/01: Friendly warning from a lover of liberty
11/21/01: The face of hunger is changing
11/15/01: Our troubled sense of trust
11/08/01: Lessons about terror from the 'hood
11/06/01: Getting used to the 'new normal'
11/02/01: Wicked ways to make them talk
10/30/01: It's not just about bin Laden
10/26/01: More than mail fell between the cracks
10/23/01: Terrorists threaten urban recovery, too
10/18/01: Sometimes, assassination warranted
10/15/01: Self-censorship rises again
10/12/01: Contradictions illustrate the complicated nature of the new terrorism
10/05/01: Look who's 'profiling' now
10/01/01: Don't trash liberty to save it
09/28/01: Life, love and cell phones during wartime
09/24/01: How to catch an elusive terrorist
09/21/01: The war I was waiting for
09/17/01: When rage turns to hate
09/13/01: Terror attack tests US, let's give right response
09/06/01: U.S. should have stayed and argued
09/04/01: Columbine killer's parents get upclose and personal
08/31/01: Virtual kids? Log me out
08/28/01: Two Africans, one black, one white, same fight
08/23/01: Sharpton for president
08/20/01: Shaking up the rules on keeping secrets
08/16/01: Bush's u-turn on racial goals
08/09/01: Outsider Bubba comes 'in' again
08/06/01: Not ready for 'color-blindness' yet
08/02/01: Immigration timing couldn't be better
07/26/01: Summer of Chandra: An international traveler's perspective
07/17/01: Overthrowing a régime is only the beginning
07/10/01: Big Brother is watching you, fining you
07/05/01: Can blacks be patriotic? Should they be?
06/19/01: Get 'real' about marriage
06/12/01: Amos, Andy and Tony Soprano
06/07/01: Getting tough with the Bush Twins
06/05/01: Bringing marriage back into fashion
05/31/01: "Ken" and "Johnnie": The odd-couple legal team
05/24/01: Sharpton's challenge to Jackson
05/22/01: Test scores equal (a) MERIT? (b) MENACE? (c) ALL OF ABOVE?
05/17/01: Anti-pot politics squeeze the ill
05/15/01: Was Babe Ruth black?
05/10/01: U.N.'s torture caucus slaps Uncle Sam
05/08/01: 'The Sopranos' a reflection of our times
05/03/01: 'Free-fire' zones, then and now
05/01/01: War on drugs misfires against students
04/26/01: Another athlete gets foot-in-mouth disease
04/23/01: 'Slave' boat mystery reveals real tragedy
04/19/01: McVeigh's execution show
04/12/01: Not this time, Jesse
04/05/01: Dubya is DEFINITELY his own man, you fools!
04/02/01: Milking MLK
03/29/01: The candidate who censored himself?
03/22/01: "Will Hispanics elbow blacks out of the way as the nation's most prominent minority group?"
03/19/01: Blacks and the SATs
03/15/01: The census: How much race still matters in the everyday life of America
03/12/01: Jesse is a victim!
03/08/01: Saving kids from becoming killers
03/01/01: Parents owe "Puffy" and Eminem our thanks
© 2001 TMS