Cross-burning decision sound

Your editorial objecting to the U.S. Supreme Court’s decision Monday to uphold bans on cross-burnings appears to misunderstand the court’s reasoning (‘Offensive speech must stay free,’ April 8, pg. 6). I agree that free speech is a foundational value to be vigorously protected. But unlike your editorial position, I find that the court, in its 6-3 decision, has adequately safeguarded speech while wisely banning a threatening activity of the most noxious sort.

Consider an analogy. If I approach you with a knife, any of a number of meanings may be in play. For example, I may wish simply to show you my new cutlery. Or I may wish to scare the daylights out of you because of some perceived betrayal on your part. These are both expressive acts of communication. The difference is in the intent in one case benign, in the other malign. Context and expression together decide the matter.

Notice that in the betrayal situation, I have committed the crime of assault even if I didn’t attack you with the knife. If it can be proven beyond a reasonable doubt that I simply intended to intimidate you into rectifying the wrong (say, returning the money you owe me), I will be convicted of the crime and punished. Of course, the legal distinction involved in these two uses of knives is uncontroversial.

In its decision Monday, the Supreme Court made just this sort of distinction in distinguishing intimidation from free speech. Your editorial erred in saying that the court upheld Virginia’s 50-year-old ban on cross burning. The court found that statute unconstitutional, in part precisely because the Virginia law banned all cross-burnings regardless of demonstrable intent. What the majority of justices determined to be constitutional was any such ban that requires the prosecution to prove beyond a reasonable doubt in criminal court that the cross-burning was meant to intimidate rather than simply to express an ideological position. The burden of proof is on the state, not on the defendants.

In the context of U.S. history, no thinking person can deny that racially motivated cross-burnings have the potential to intimidate. When the Ku Klux Klan burns a cross at a secluded retreat as a ritual meant only to symbolize members’ racial ideology, that should be their prerogative. But this matter cannot be left at protecting minorities’ private property from cross burning, as the editorial suggested. Whether crosses are burned in hate on the lawns of minority citizens, next door on the burner’s own lawn or across the street in the public park, there can be little question that a serious assault on those citizens’ sensibilities and sense of physical security has taken place. Even here, however, the prosecution would need to prove intent to intimidate.

In such cases the act is to political speech as the priestly sexual abuse of children is to pastoral care. Both offenses darken lives for lifetimes. Freedom of speech is properly enshrined as a cardinal value in our democracy. And so is the right to life, liberty and the pursuit of happiness.