2012-06-11 11:50:21

Perhaps no symbol in American history carries with it the strong sense of infamy and controversy as the burning cross. Justice Thomas, dissenting in a 2003 U.S. Supreme Court opinion, penned, ‘‘Cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence.’’ Whether or not a burning cross conveys a message seems settled, especially against the backdrop of the Ku Klux Klan and the African-American struggle during Reconstruction and the Civil Rights Movement.

What has been, and continues to be, debated is whether a state should be free to proscribe and criminalize the act of burning a cross?

The U.S. Supreme Court’s 2003 ruling in Virginia v. Black provides an exhaustive overview of both the expressive elements of burning a cross and the constitutional constraints that exist that limit the manner in which a state can criminalize the act of burning a cross.

In Virginia v. Black, the U.S. Supreme Court held that Virginia could criminalize the burning of a cross provided that it was done ‘‘with the intent of intimidating any person or group or persons.’’ The Court found that cross burning was a particularly virulent type of intimidation. The Court relied on previous First Amendment precedent and exceptions related to ‘‘true threats’’ and ‘‘fighting words’’ that may be regulated in a manner consistent with the Constitution.

Although the Court held that the act of burning a cross for the purposes of intimidation could be criminalized without offending the First Amendment of the Constitution (made applicable to the states by the Fourteenth Amendment), the Court further held that there are instances where crosses are burned without any intention to intimidate. For example, Justice White, concurring in R.A.V. v. St. Paul, (1992) stated, ‘‘[b]urning a cross at a politically rally would almost certainly be protected expression.’’

Whenever expressive conduct such as a burning cross is intertwined with such strong historical underpinnings, a short review of the symbol’s place in American culture becomes relevant.

Cross burning was used as early as the fourteenth century as a means for Scottish tribes to signal one another. Sir Walter Scott used the burning cross to symbolize both a summons and a call to arms. The integration of the burning cross into American subculture began in the spring of 1866 in Pulaski, Tennessee. The Ku Klux Klan (hereinafter ‘‘Klan’’), an organization that originated as a social club, transformed into a group that resisted Reconstruction efforts and fought to exclude freed blacks from the political process. The Klan’s victims included not only African Americans but also northern whites known as ‘‘carpetbaggers’’ and southern whites who disagreed with the Klan’s policies or methods. Justice Thomas, concurring in Capitol Square Review and Advisory Board v. Pinette (1995), reminded us that the Klan not only disfavored individuals on racial and geographical bounds but also on religious and political grounds, hating Jews, Catholics, and Communists alongside ‘‘Yankees’’ and blacks. The Klan, which had generally died out in the late 1870s, was ‘‘reborn’’ around 1915. The ‘‘second’’ Klan’s first initiation ceremony, on Stone Mountain, Georgia (near Atlanta), used a 40-foot burning cross.

Throughout the life of the ‘‘second’’ Klan, cross burnings were used as a tool to intimidate and threaten imminent violence against individuals and groups the Klan disfavored. The burning cross was not only an outward symbol to send a message to others but also served as a symbol to identify and express shared ideology and purpose among Klan members.

The Commonwealth of Virginia, in its Petitioner’s Brief in the Virginia v. Black case, summed up the common perception of cross burning’s expressive effect: ‘‘A white, conservative, middle-class Protestant, waking up at night to find a burning cross outside his home will reasonably understand that someone is threatening him. His reaction is likely to be very different than if he were to find, say, a burning circle or square. In the latter case, he may call the fire department. In the former, he will probably call the police.’’


References and Further Reading

  • Brannon, Chris L., Note, Constitutional Law—Hate Speech—First Amendment Permits Ban on Cross Burning When Done with the Intent to Intimidate, Miss. L. J. 73 (Fall 2003): 323.
  • Gey, Steven G., A Few Questions About Cross Burning, Intimidation, and Free Speech, Notre Dame L. Rev. 80 (2005): 1287.

Cases and Statutes Cited

  • Virginia v. Black, 538 U.S. 343 (2002)
  • Capitol Square Review and Advisory Bd v. Pinette, 515 U.S. 753 (1995)
  • R.A.V. v. St. Paul, 505 U.S. 377 (1992)