Because he seldom joins in the questioning of lawyers at oral arguments, U.S. Supreme Court Justice Clarence Thomas made news last week simply by being vocal at a hearing on the constitutionality of a Virginia law against cross-burning.
Even more newsworthy was the fact that Justice Thomas' condemnation of cross-burning as a uniquely intimidating symbol seemed to win over some colleagues who earlier had indicated that the law violated the First Amendment.
Justice Thomas, the court's only African-American member, is absolutely right in saying that cross-burnings historically were a feature of a "reign of terror" against black Americans, Catholics and Jews. Bigots and bullies continue to burn crosses to torment African Americans; and when they do, they can and should be arrested for terroristic threats, intimidation or trespassing.
The question in the Virginia case, however, was different, and it would be patronizing to Justice Thomas to suggest that he or his colleagues should ignore the specifics of the law that was before them.
That law, dating from the 1950s and aimed at the Ku Klux Klan, makes it a felony for any person to burn a cross in a public place or on someone else's property "with the intent of intimidating any person or group of persons." But the law also says that the burning of a cross "shall be prima facie evidence of an intent to intimidate a person or persons."
The latter provision presumes what prosecutors are usually required to prove. And in one of the cases before the court last week, a Ku Klux Klan cross-burning took place at a rally conducted on private property with the permission of the owner. The rally also featured verbal denunciations of Bill and Hillary Clinton, blacks and Mexicans.
Although the occupants of several cars (one carrying an African-American family) could catch sight of the rally from a public highway, the only person who got a sustained look at the cross-burning --other than two police officers -- was a woman who was a neighbor and relative of the owner of the land where the rally took place. She said the spectacle made her "feel awful."
That, we hope, would be the reaction of any sensitive American of any color not just to a Klan rally but to any racist oration. Yet the Supreme Court has ruled (in a case involving a KKK rally) that such speech is protected by the First Amendment unless it poses the danger of "imminent lawless action" or is part of an attempt to intimidate individuals.
This protection for what Supreme Court Justice Oliver Wendell Holmes called "the opinions that we loathe" is a distinctive feature of the American legal tradition. Other democracies do not give hateful speech such free rein. And "speech" for First Amendment purposes includes "expressive conduct" like the burning of an American flag -- or a cross.
Rodney Smolla, the lawyer who represented a Virginia Klan leader at the request of the ACLU, has crystallized the issue for the court this way: "The First Amendment embodies no right to engage in hate crime. It does embody a right to engage in hate speech." Oliver Wendell Holmes would have agreed -- and so should the current Supreme Court.
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