Images of crosses burning in yards are almost automatically associated with the Ku Klux Klan and more than a century of appalling violence. Regardless of the most common use of flaming crosses and their typical associations, burning one by itself does not necessarily involve racial threats. Therefore, the Supreme Court’s 6-3 decision to allow states to punish cross burners infringes upon First Amendment rights.
The court specifically upheld a 50-year-old Virginia law outlawing cross-burning as an act of intimidation, but both this law and similar ones in at least 13 other states are far too vague. Intimidation is quite hard to prove in court or define legally and relies on each victim’s personal feelings and reactions. The Supreme Court ruling and the state laws do not clearly distinguish exactly when a cross may legally be burned. This is especially dangerous because the act of burning a cross itself is so similar to burning a flag or other actions of political speech that while widely offensive, rightly remain completely legal.
The court erred in its decision simply because the property and free speech aspects of political speech make a blanket ruling difficult, if not impossible. For example, as despicable and offensive as KKK rallies may be, people have the right to behave however they please on their own property as long as it does not threaten anyone else or create an overwhelming danger to public safety.
Burning crosses should also be allowed on public property in most circumstances. While overtly threatening others or encouraging violence must remain illegal, governments should only restrict cross-burning as they do other political speech. Officials only have the power to require cross-burners to get permits for demonstrations and to restrict them in time and manner. While an 80-foot flaming cross can certainly be deemed a flagrant public safety hazard, they cannot necessarily outlaw burning a smaller replica.
The only legal area where burning crosses is both morally offensive and legally wrong is when the flames occur on another person’s lawn, as most KKK burnings did. Under these circumstances, states and municipalities have every right to enact harsh bans upon burning anything on someone else’s property. Laws targeting this action rather than the material in flames are perfectly appropriate because the action endangers another’s property and cannot possibly be merely done in passing like picketing or other political demonstrations.
Cross burning as used by the KKK clearly qualifies as a threatening action and intimidation. However, the action itself does not necessarily involve hateful motives and should not be banned. While the Supreme Court is unlikely to overturn its ruling anytime soon, other courts and legislatures must ensure that lucid laws only restrict actions that harm others, not those that could just be reprehensible yet free speech.
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