CROSS BURNINGS AND THE HARM- VALUATION ANALYTIC: A TALE OF TWO CASES

RONALD TURNER*

INTRODUCTION

Cross burning is a form of hate speech "inflict[ing] its harm through its meaning as an act which promotes racial inequality through its message and impact, engendering terror and effectuating segregation."' Does the First Amendment to the United States Constitution 2 forbid or permit laws regulating and criminalizing this expression and communication? Consider the following cases:

1. A group of white teenagers, angered at the presence of an African- American family in "their" neighborhood, assembled and burned a cross in the backyard of the black family's residence in St. Paul, Minnesota. One of the cross burners was arrested and charged with violating a city ordinance banning the burning of a cross on public or private property "which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender... ' 3 Arguing that this law violated the First Amendment, he sought dismissal of the charges.

2. Two whites tried to burn a cross at the home of an African-American neighbor; both were charged with and convicted of violating a Virginia statute making it a felony to burn a cross "with the intent of intimidating

Alumnae Law Center Professor of Law, The University of Houston Law Center, [email protected]; Visiting Professor of History, Rice University. J.D., The University of Pennsylvania Law School; B.A. Magna Cum Laude, Wilberforce University. I. Catherine A. MacKinnon, Pornographyas Defamation and Discrimination,71 B.U. L. REv. 793, 805 (1991). 2. See U.S. CONST. amend. I. 3. ST. PAUL, MINN. BIAS-MOTIVATED CRIME ORDINANCE, CODE § 292.02 (1990). 4 BERKELEYJOURNAL OFAFRICAN-AMERICANLA W& POLICY [VOL. IX: 1

any person or group of persons. A Another person in that state was arrested after a county sheriff observed a burning cross at a Ku Klux Klan rally held on private property. A jury found him guilty of violating the aforementioned Virginia statute. All three burners brought First Amendment challenges to Virginia's anti-cross burning law.

The challenge to the St. Paul ordinance referenced in the first cross burning incident described above succeeded. In its 1992 decision in R.A. V. v. City of St. Paul, Minnesota5 the United States Supreme Court held that the ordinance was facially unconstitutional and violated the First Amendment, reasoning that the law unlawfully "prohibit[ed] otherwise permitted speech solely on the basis of the subjects the speech addresses." 6 The aforementioned challenge to the Virginia statute failed.7 In Virginia v. Black8 the Court concluded that "a State, consistent with the First Amendment, may ban cross burning carried out with an intent to intimidate..." 9 Cross burning arousing anger, alarm, or resentment in others on the basis of race was held to be constitutionally permissible, while burning a cross with the intent to intimidate others can be constitutionally proscribed. Establishing the boundaries of the zone of "free speech" 10 for the expressive and communicative act of cross burning, the Court struck down St. Paul's and validated Virginia's statutory prohibitions of certain cross burnings. Cross burning can be a harmful and disturbing experience for those subjected to this noxious practice. When he saw the cross burning in the yard of his home in St. Paul, Minnesota, Russell Jones "thought of the stories my grandparents told about living in the South and being intimidated by white people. When a cross was burned down there they either meant to harm you or put you in your place.""1 Yet, conspicuously absent from the Court's decision in R.A. V. is any indication that the Court was cognizant of and appreciated the intimidatory effects, harms, and consequences of cross burnings. Unlike R.A. V., judicial evaluation of harm was front and center in Black and was a significant factor in the Court's adjudicatory calculus, as the explicit evaluation

4. VA. CODE ANN § 18.2-423 (1996). 5. 505 U.S. 377 (1992). 6. Id. at 381 (bracketed material added). 7. Failed only with respect to the claim that the state's ban on cross burning constituted unconstitutional content discrimination. See infra notes 149, 176-79 and accompanying text. 8. 538 U.S. 343 (2003). 9. Id. at 347. 10. In referring to free speech, I agree with Professor Larry Alexander that no speech is "free," for "[s]peech and listening are costly activities." Larry Alexander, Trouble on Track Two: Incidental Regulations of Speech and Free Speech Theory, 44 HASTINGS L.J. 921, 933-34 (1993). 11. Laura J. Lederer, The Case of the Cross Burning: An Interview with Russ and Laura Jones, in THE PRICE WE PAY: THE CASE AGAINST RACIST SPEECH, HATE PROPAGANDA, AND PORNOGRAPHY 30 (Laura Lederer & Richard Delgado eds., 1995) (quoting interview statement by Russell Jones). 2007] EVALUATING THE HARMS OF CROSS BURNINGS of harm not undertaken by the Court in striking down the cross-burning ban in R.A. V. was performed by the Court as it rejected the First Amendment challenge to Virginia's cross-burning proscription in Black. Why is this recognition and assessment of harm important? Where harm-valuation is not part of the analysis or discussion, one can more easily cast or depict cross burning as racist and bigoted but constitutionally protected expression and communication, and can more easily subordinate the rights and interests of those subjected to cross burning to the asserted free speech rights and interests of cross burners. Assessing the constitutionality of governmental bans on cross burnings with a full appreciation of the harms inflicted on and suffered by the targets of this nonlinguistic communicative act 12 makes it more difficult, both analytically and rhetorically, to characterize a cross-burning case as being about and between, not the cross burner and his or her target, but the cross burner and the governmental entity banning and criminalizing such expression.13 I have two goals in this essay. The first and general goal is to identify the important role that judicial evaluation of harm has played in the Supreme Court's First Amendment jurisprudence and decisionmaking. The second and more specific goal is to examine and identify the way in which harm-valuation was not (in R.A. V) and was (in Black) a factor in the Court's reasoning in its cross burning decisions, and to address and answer the question whether the Black Court's emphasis on and explicit evaluation of the harms of cross burnings is the preferred interpretive approach. As we shall see, I answer this question in the affirmative and suggest that Black is an important exemplar of the analytical and adjudicative power of contextualized, perspectival, and 14 experientialist approaches to and readings of the First Amendment. This essay has three parts. Part I provides a brief overview of the Supreme Court's interpretation and application of the First Amendment and the Court's determinations that certain speech and expression can be regulated on the basis of harm without running afoul of the constitutional free-speech guarantee. Part II examines the Court's construction of the First Amendment in two cases involving challenges to anti-cross-burning laws, R.A. V. and Black. Part III argues that the different methodologies employed and results reached

12. See Frederick Schauer, Intentions, Conventions, and the First Amendment: The Case of Cross-Burning, 55 SUP. CT. REV. 197 (2003). 13. As the First Amendment "affords protection to symbolic or expressive conduct as well as actual speech," Black, 538 U.S. at 358, state regulation and prohibition of nonlinguistic acts, such as the burning of a cross, may be challenged under that amendment. See also Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (holding that, absent a demonstration of disruption of or interference with school activities, school district's prohibition of the wearing of black armbands was an unconstitutional denial of students' free speech rights). 14. tn making this suggestion and argument I speak only to the relevance and usefulness of context, perspective, and experience in constitutional challenges to cross burning bans, and do not posit or proffer an overarching theory applicable to all constitutional issues. 6 BERKELEYJOURNAL OFAFRICAN-AMERICANLAW& POLICY [VOL. IX: 1 by the Court in R.A. V. and Black illustrate the importance of judicial recognition of the harm-valuation analytic in this area of First Amendment adjudication and jurisprudence.

I. HARM ASSESSMENT AND THE FIRST AMENDMENT

A. InterpretingThe FirstAmendment "Congress shall make no law... abridging the freedom of speech... 15 The First Amendment to the Constitution, a "safeguard against governmental suppression of points of view," 16 generally prohibits government suppression of speech and expression simply because the government disapproves of the ideas and views expressed. 17 Regulating or proscribing speech solely because "some or many in the audience find what is said or written offensive, abridge[s] '1 8 essential free speech interests." The general propositions noted in the preceding paragraph do not hold in all situations, however, for the First Amendment free-speech principle is not 19 2 absolute. The absolutist view that no law can abridge the freedom of speech 0 has been rejected by the Supreme Court, and it is now well settled that the amendment does not cover and protect any and all communications. 21 Thus, unlike absolutists like Justices Hugo Black and William 0. Douglas, 22 non- absolutists have to grapple with the question whether certain communications and expressions are protected by the First Amendment or may be proscribed without running afoul of the free speech mandate. Some approach and seek answers to this question by balancing the at-issue speech against the weight of competing public or private interests. Others employ a categorization

15. U.S. CONST. amend. I. 16. Cass R. Sunstein, Neutrality in Constitutional Law (With Special Reference to Pornography, Abortion, and Surrogacy), 92 COLUM. L. REV. 1, 22 (1992). The amendment "means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972). 17. R.A. V., 505 U.S. at 382; see also Texas v. Johnson, 491 U.S. 397, 401 (1989). 18. DAVID A.J. RICHARDS, TOLERATION AND THE CONSTITUTION 171 (1986) (bracketed material added). 19. See Ashcroft v. ACLU, 535 U.S. 564, 573 (2002). 20. See STEVEN H. GRIFFIN, THE FIRST AMENDMENT, DEMOCRACY, AND ROMANCE 13 (1990) (for the absolutist, the First Amendment is unequivocal: "Congress shall make NO LAW abridging speech"). 21. "[T]he First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses." Cohen v. California, 403 U.S. 15, 19 (1971). 22. See CBS v. Democratic Nat'l Comm., 412 U.S. 94, 156 (1973) (Douglas, J., dissenting); Konigsberg v. State Bar of Cal., 366 U.S. 36, 61 (1961) (Black, J., dissenting); Beauharnais v. Illinois, 343 U.S. 250, 275 (1952) (Black, J., dissenting); see also ROGER K. NEWMAN, HUGO BLACK: A BIOGRAPHY 496 (1994) (noting Justice Black's First Amendment absolutism). 23. See, e.g., Dennis v. United States, 341 U.S. 494, 524-25 (1951) (Frankfurter, J., concurring); Heidi Kitrosser, Containing Unprotected Speech, 57 FLA. L. REV. 843 (2005); 2007] EVALUATING THE HARMS OF CROSS BURNINGS approach-speech in a certain category, say political speech, is protected while speech in another category, for example obscenity, is not.24 Once pure First Amendment absolutism is set to the side, the axiom (indeed the mantra) that there is an unqualified and constitutionally protected free speech right is not an accurate statement of law. Without violating the First Amendment, government may lawfully restrict the speech of those who illegally infringe on copyrights, may protect minors from obscene speech and expressions, 26 and may criminalize speech involving and communicating the unauthorized disclosure of state secrets 27 as well as treasonous speech. 28 The First Amendment provides no constitutional shield or safe harbor for those who engage in and facilitate through speech an unlawful conspiracy 29 or violate securities laws, 30 breach the peace, 3 1 commit perjury, 32 make harassing telephone calls, 33 or make political campaign contributions exceeding statutorily prescribed limits.34 Thus, a more accurate statement of the real- world free speech principle posits that speech can be and is lawfully regulated in certain circumstances, with the courts deciding whether certain speech is or is not "free" from government proscription. Indeed, "even the briefest glimpse

Ronald Turner, Regulating Hate Speech and the First Amendment: The Attractions of and Objections to, an Explicit Harms-BasedAnalysis,29 IND. L. REV. 257, 266 (1995). 24. See S. Elizabeth Wilborn Malloy & Ronald J. Krotoszynski, Jr., Recalibratingthe Cost of Harm Advocacy: Getting Beyond Brandenburg, 41 WM. & MARY L. REV. 1159, 1186 (2000); Turner, supra note 23, at 267. 25. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). 26. See Sable Comm'cs of Cal., Inc. v FCC, 492 U.S. 115 (1989); FCC v. Pacifica Found., 438 U.S. 726 (1978). 27. See New York Times Co. v. United States, 403 U.S. 713, 743 (1971) (Marshall, J., concurring). 28. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 389 (1992). 29. See Cynthia L. Estlund, The Architecture of the First Amendment and the Case of Workplace Harassment, 72 NOTRE DAME L. REV. 1361, 1368 (1997); Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog that Didn't Bark, 1994 SUP. CT. REV. 1, 22-23. See also Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances, " and the UnchartedZones, 90 CORNELL L. REV. 1277, 1284 (2005) (noting categories of speech "whose First Amendment status the Court has never squarely confronted, such as aiding and abetting, criminal solicitation, conspiracy, perjury, agreements to restrain trade, and professional advice to clients"). 30. See Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765, 1778 (2004) [hereinafter Boundaries] (noting that the Securities and Exchange Commission "engages in pervasive content- based control of speech" in administering and enforcing the Securities Act of 1933); id. at 1806 (listing executive and administrative agency regulatory schemes involving the content-based regulation of speech). 31. See Schenck v. United States, 249 U.S. 47 (1919). 32. See Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 CORNELL L. REV. 1258, 1286 (1992). 33. See State v. Gattis, 730 P.2d 497 (N.M. Ct. App. 1986); State v. Thorne, 333 S.E.2d 817 (W. Va. 1985); Alan E. Brownstein, Hate Speech and Harassment: The Constitutionality of Campus Codes that ProhibitRacial Insults, 3 WM. & MARY BILL RTS. J. 179, 192-206 (1994). 34. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). 8 BERKELEYJOURNAL OFAFRICAN-AMERICANLA W & POLICY [VOL. IX: l

at the vast universe of widely accepted content-based restrictions on communications reveals that the speech with which the First Amendment deals 35 is the exception and the speech that may routinely be regulated is the rule."

B. Harmful Speech And Expression

Of especial relevance to this essay are the views that the law constitutionally prohibits some speech based on "the concrete prospect of significant-and involuntary-exposure to harm," 36 and that "some speech causes harm precisely because of its content... "37 For instance, the Supreme Court has determined that fighting words-"those which by their very utterance inflict injury or tend to incite an immediate breach of the peace"-are not protected by the Constitution.38 In the area of obscenity the Court, in Miller v. California,39 held that obscene material ("disgusting to the senses" and "grossly repugnant to the generally accepted notions of what is appropriate") is not protected by the First Amendment. 40 As noted by Elena Kagan, the Court's "standard for identifying obscenity was justified in part by reference to real- world harms...' In addition, the real and possible harms related to the presence of adult motion picture theaters and nude dancing establishments have been recognized and evaluated by the Court.42 Judicial assessment of harm is also on display in First Amendment cases involving speech on racial subjects and issues. In Feiner v. New York,43 for example, the Court upheld the conviction of a soapbox speaker who called on

35. Schauer, Boundaries, supra note 30, at 1768. 36. Henry Louis Gates, Jr., Truth or Consequences: Putting Limits on Limits, ACADEME (Jan.-Feb. 1994), at 14. 37. Steven J. Heyman, Spheres ofAutonomy: Reforming the Content Neutrality Doctrine in FirstAmendment Jurisprudence, 10 WM. & MARY BILL RTS. J. 647, 650 (2002). 38. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (footnote omitted). Chaplinsky declared that "[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words..." Id. at 571-72. The fighting words exception did not allow the state to convict an individual for wearing a jacket with the words "Fuck the Draft" in a courthouse corridor. In Cohen v. California, 403 U.S. 15 (1971), the Court concluded that "[n]o individual actually or likely to be present could reasonably have regarded the words on [Cohen's] jacket as a direct personal insult." Id. at 20 (bracketed material added). "There is .. .no showing that anyone who saw Cohen was in fact violently aroused or that [Cohen] intended such a result." Id. 39. 413 U.S. 15 (1973). 40. Id. at 18 n.2. See also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69 (1973) (prohibiting obscenity is necessary to protect a decent society's interest in morality). 41. Elena Kagan, Regulation of Hate Speech and Pornographyafter R.A.V., 60 U. CHI L. REv. 873, 893 (1993). 42. See Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). 43. 340 U.S. 315 (1951). 2007] EVALUATING THE HARMS OF CROSS BURNINGS

"negroes" to "rise up in arms and fight for their rights... ' In the Court's view, the arrest was the "means which the police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order., 45 In another case, Beauharnais v. Illinois,4 6 the Court rejected a constitutional challenge to an ordinance prohibiting the display of any publication that "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots.' '47 In the Court's view, that ordinance was violated by the president of the White Circle League when he passed out lithographs calling on the mayor and city council of Chicago, Illinois "to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro..."48 The state of Illinois, having experienced race riots and other racial tensions, was not "without reason in seeking ways to curb false or malicious libel or defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. 'A9 While it is generally understood that Beauharnais is no longer good law, 50 the Court did consider and discuss the harm-related aspects of speech generated by the contents of the at-issue lithograph. The foregoing discussion should not be read as advancing the position that some notion of harm recognition and prevention is always enough to establish a 5 violation of the First Amendment. In Brandenburgv. Ohio 1 the Court upheld a constitutional challenge brought by Clarence Brandenburg, who was prosecuted and convicted under a criminal syndicalism law 52 following his attendance at a Ku Klux Klan rally where racist statements were made and a cross was burned. Wearing Klan regalia, Brandenburg made a speech in which he said, among other things, that "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there

44. Id. at 330. The speaker also called the mayor of Syracuse, New York a "champagne- sipping bum" and the American Legion a "Nazi Gestapo." Id. 45. Id. at 321. See also id. at 319 (the motivation of the police in arresting the speaker was a "proper concern for the preservation of order and protection of the general welfare"). 46. 343 U.S. 250 (1952). 47. Id. at 251. 48. Id. at 252. 49. Id. at 261. 50. Subsequent to the Court's decision in New York Times v. Sullivan, 376 U.S. 254 (1964), "most people think that bans on group libel or hate speech, broadly defined, are no longer permissible. CAss R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 186 (1993). 51. 395 U.S. 444 (1969) (per curiam). 52. The law made it a crime to "advocate ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and to assemble "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Id. at 445 (quoting OHIO REV. CODE ANN. § 2923.13). 10 BERKELEYJOURNAL OFAFRICAN-AMERICANLA W& POLICY [VOL. IX: 1 might have to be some revengeance taken." 53 The Court overturned Brandenburg's conviction and declared that the First Amendment does "not permit a state to forbid or proscribe advocacy of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." 54 As the Ohio law did not distinguish mere advocacy from incitement to imminent lawless action, 55 the Court held that the statute was unconstitutional. Harm prevention as justification for banning expression also failed in the flag burning case, Texas v. Johnson.5 6 In that case the Court rejected the argument that the prohibition of flag desecrations constitutionally furthered the state's interest in preventing breaches of the peace. Government "may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable," Justice William Brennan wrote in his opinion for the Court.5 7 Dissenting, Chief Justice William Rehnquist, joined by Justices Byron White and Sandra Day O'Connor, likened flag burning to "an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." 58 Explicitly speaking to the harms of flag burnings, Rehnquist stated that one of the "high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to a majority of people-whether it be murder, 59 embezzlement, pollution, or flag burning." In sum, judicial assessment of harm and recognition of governmental interest in the prevention and remediation thereof has been a factor in the

53. Id. at 446. 54. Id. at 447 (footnote omitted). The Court cited Dennis v. United States, 341 U.S. 494 (1951), a decision upholding the convictions of defendants charged with conspiring to organize the Communist Party for the purpose of teaching and advocating the overthrow of the United States by force or violence. See also Schenck v. United States, 249 U.S. 47, 52 (1919) ("The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils Congress has a right to prevent. It is a question of proximity and degree."); David R. Dow, The Moral Failureof the Clear and PresentDanger Test, 6 WM. & MARY BILL RTS. J. 733 (1998). 55. Brandenburg "seem[s] to permit the punishment of subversive advocacy only if three conditions are satisfied: there must be express advocacy of law violation; the advocacy must call for immediate law violation; and the immediate law violation must be likely to occur." GEOFFREY R. STONE, PERILOUS TIMES: FREE SPEECH IN WARTIME FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM 523 (2004) (bracketed material added). 56. 491 U.S. 397 (1989). See also United States v. Eichman, 496 U.S. 310 (1990) (holding that federal law prohibiting flag burning violated the First Amendment). 57. Johnson, 491 U.S. at 414. 58. Id. at 432 (Rehnquist, C.J., dissenting). 59. Id. at 435. In a separate dissent Justice John Paul Stevens (who reportedly "wept in outrage during the Court's discussion of the case," MARK TUSHNET, A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW 146 (2005), argued that "sanctioning the public desecration of the flag will tarnish its value" and that flag burning "diminishes the value of an important national asset." 491 U.S. at 437, 438 (Stevens, J., dissenting). 2007] EVALUATING THE HARMS OF CROSS BURNINGS

Supreme Court's consideration of First Amendment challenges to prohibitions of certain speech and expressive conduct. Whether and how harm was evaluated in constitutional challenges to anti-cross burning laws are discussed in the ensuing parts.

II. R.A.V. AND BLACK: TWO CASES, TWO APPROACHES

The expressive act of cross burning is a form and subset of hate speech. 61 Hate speech based on the race or ethnicity of the subjects and targets of this category of communication 62 can cause "loss of self-esteem, economic and social subordination, physical and mental stress, silencing of the victim, and effective exclusion from the political arena.' '63 Such speech can induce some to commit acts of violence against others because of their race, religion, gender, and sexual orientation, 64 and can "make them targets, degrade them, strip them of their humanity, and set out others against them."65 A burning cross "does not so much harm a group's reputation as it effectuates terror, intimidation, and harassment on a group basis," 66 "warn[s] newcomers out of segregated neighborhoods," and "draw[s] upon and promote[s] the fear that began with the nightriders of the Reconstruction era and continues to this day in the rituals of skinheads, Klansmen, and local thugs." 67 This "communicative symbol" is "highly charged with religious, historical, social, and political meanings.... Admittedly, it may also be seen, in a given time and place, as a 68 true threat." In its 1992 decision in R.A. V. and its 2003 ruling in Black the Supreme Court considered First Amendment challenges to statutory proscriptions of cross burnings, a "particularly virulent species" 69 of the symbolic communication of racists and bigots. Yet, as discussed in this part, the Court

60. See supra note 1 and accompanying text. 61. Hate speech, "ideology in capsule form," is the "term-of-art of a movement, most active on college campuses and in liberal municipalities, that has caused many civil rights activists to rethink their allegiance to the First Amendment, the very amendment that licensed the protests, the rallies, the organization and the agitation that galvanized the nation in a recent, bygone era." Henry Louis Gates, Jr., Let Them Talk, NEW REPUBLIC (Sep. 20 & 27, 1993), at 37. 62. See generally Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320 (1989). 63. Calvin R. Massey, Hate Speech, Cultural Diversity, and the Foundational Paradigms of Free Expression, 40 UCLA L. REV. 103, 105 n.2 (1992). 64. See Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV. 1321, 1349 (1992). 65. RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 151 (1992). 66. MacKinnon, supra note 1, at 805. 67. Cedric Merlin Powell, The Mythological Marketplace of Ideas: R.A.V., Mitchell, and Beyond, 12 HARV. BLACKLETrER L.J. 1, 19 (1995). 68. Rod Smolla, Cross Burning: Virginia v. Black, in A YEAR AT THE SUPREME COURT 162 (Neal Devins & Davison M. Douglas eds., 2004). 69. Edward J. Eberle, Cross Burning, Hate Speech, and Free Speech in America, 36 ARIZ. ST. L.J. 953, 979 (2004). 12 BERKELEYJOURNAL OFAFRCAN-AMERJCANLA W& POLICY [VOL. IX: I

struck down one anti-cross-burning statute while holding that the other passed First Amendment muster.

A. R.A. V 's Content And Viewpoint DiscriminationApproach

In June 1990 Robert A. Viktora70 and a group of white teenagers met and discussed "their dissatisfaction with racial incidents and their 'disgust' at having an African-American family, the Joneses, living in the neighborhood" in 7 St. Paul, Minnesota. 1 When one member of the group allegedly suggested "'Let's go burn some niggers',,,72 the group taped together the broken legs of a chair in the form of a cross, went to the home of Russell and Laura Jones at 2:30 a.m., placed the cross in the backyard of the family's fenced property, and set it afire.7 3 Approximately two hours later the group returned and burned another cross on a street comer near the Jones' home.74 Viktora was subsequently arrested and charged with violating the St. Paul, Minnesota Bias- 75 Motivated Crime Ordinance.

Prior to trial, a state district court dismissed this charge on the grounds that the ordinance was substantially overbroad and unlawfully content based. Reversing that dismissal, the Minnesota Supreme Court declared:

Burning a cross in the yard of an African American family's home is deplorable conduct that the city of St. Paul may without question prohibit. The burning cross is itself an unmistakable symbol of violence and hatred based on virulent notions of racial supremacy. It is the responsibility, even the obligation, of diverse communities to 76 confront such notions in whatever form they appear.

70. Viktora is the "R.A.V." in the United States Supreme Court's decision in R.A. V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992). His full name is used in Breaking the Codes, NEW REPUBLIC (July 8, 1991), at 7, and in Don Terry, Rights Advocates Uncertain About Ruling's Impact, N.Y. TIMES, Jun. 23, 1992, at A16. 71. United States v. J.H.H., 22 F.3d 821, 823 (8 h Cir. 1994). The group's discussion included Viktora's statement that an African-American male had pulled a knife on him and his reference to the movie Mississippi Burning, "a movie which portrays Klan violence, cross- burnings, and murders, which gave the group the idea of burning a cross." Id. at 826-27. 72. Id. at 823 (citation omitted). 73. Id.; R.A.V., 505 U.S. at 379. 74. See J.H.H., 22 F.3d at 824. A third cross was burned by the group at an apartment building which was the home of a number of persons of color. See id. 75. See ST. PAUL, MINN. BIAS-MOTIVATED CRIME ORDINANCE, CODE § 292.02 (1990). The ordinance provided: Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. 76. In re R.A.V., 464 N.W.2d 507, 508 (Minn. 1991) (footnote omitted), rev'd, 505 U.S. 2007] EVALUATING THE HARMS OF CROSS BURNINGS

Rejecting Viktora's overbreadth argument, the court noted that it had previously and narrowly construed the statutory phrase "alarm, anger or resentment in others, 77 "to refer only to 'fighting words'... Similarly limited to expressive conduct that amounts to 'fighting words'... the ordinance in question withstands constitutional challenge."7 8 Furthermore, the state high court concluded, the ordinance was constitutional to the extent that it prohibited incitement to imminent lawless action, 79 and was "a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the ' 8 ° community against bias-motivated threats to public safety and order... Concluding that the ordinance was facially unconstitutional, the United States Supreme Court reversed the Minnesota high court's judgment. 81 Writing for the Court, Justice Antonin Scalia 82 reasoned that the ordinance unconstitutionally "prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. ' 83 Accepting the Minnesota court's construction of the law as applying only to fighting words,84 Scalia opined that the "government may not regulate [fighting words] based on hostility-or favoritism-towards the underlying message expressed." 85 The St. Paul ordinance was fatally flawed, in his view, in that the

ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion, or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality-are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who

377 (1992). 77. 464 N.W.2d at 510. See In re S.L.J., 263 N.W.2d 412, 419 (Minn. 1978) (construing the same phrase in different Minnesota statute). 78. 464 N.W.2d at 510 (citations omitted). The court cited Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942), discussed supra note 38 and accompanying text. 79. See464 N.W.2dat510. 80. Id. at 511 (citation omitted). 81. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 391 (1992). For additional and more detailed discussions of this case, see EDWARD J. CLEARY, BEYOND THE BURNING CROSS: THE FIRST AMENDMENT AND THE LANDMARK R.A.V. CASE (1994); Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124 (1992); Kagan, supra note 41; Ronald Turner, Hate Speech and the First Amendment: The Supreme Court's R.A.V. Decision, 61 TENN. L. REV. 197 (1993). 82. Joined by Chief Justice William Rehnquist and Justices Anthony Kennedy, David Souter, and Clarence Thomas. 83. Id.at 381 (footnote omitted). 84. See supra note 78 and accompanying text. 85. Id. at 386 (citation and footnote omitted). 14 BERKELEYJOURNAL OFAFRICAN-AMERICANLA W& POLICY [VOL. Ix: 1

express views on disfavored subjects8 6 Reasoning that the ordinance "goes even beyond mere content discrimination, to actual viewpoint discrimination, '87 Justice Scalia concluded that the ordinance did not prohibit fighting words "directed at certain persons or groups" but did proscribe "fighting words that contain.., messages of 'bias- motivated' hatred and in particular... messages based on virulent notions of racial supremacy." 88 While St. Paul could confront those notions, "the manner of that confrontation cannot consist of selective limitations upon speech."8 9 that the city is seeking to "Selectivity of this sort creates the possibility90 handicap the expression of particular ideas." Additionally, Justice Scalia was not persuaded by the city's argument that the ordinance was narrowly tailored to serve the compelling state interests of insuring the human rights of groups historically subjected to discrimination and the rights of members of those groups "to live in peace where they wish.,, 91 Not doubting that such interests were compelling and were promoted by the ordinance, Scalia wrote that the "dispositive question... is whether content discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not."92 "An ordinance not limited to the favored topics... would have precisely the same beneficial effect."93 The ordinance unconstitutionally "display[ed] the city council's special hostility towards the particular biases thus singled out"; that hostility could not be expressed "through the means of imposing unique limitations upon speakers who (however benightedly) disagree. '94 Accordingly, and as Justice Byron White noted in his concurring opinion, "Should the government want to criminalize certain fighting words, the Court now requires it to criminalize all fighting 95 words."

86. 505 U.S at 391 (citations omitted). 87. Id. Scalia explained: Displays containing some words-odious racial epithets, for example-would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke race, color, creed, religion, or gender-aspersions upon a person's mother, for example-would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents.... St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury rules. Id. at 391-92. 88. Id. at 392 (citation omitted). 89. Id. 90. Id. at 394. 91. Id.at 395. 92. Id. at 395-96. 93. Id. at 396. 94. Id. (footnote omitted and bracketed material added). 95. Id. at 401 (White, J., concurring in the judgment). See also id. at 402 (the city could comply with the Court's underinclusive and underbreadth analysis "by adding to its ordinance a catchall phrase such as 'and all other fighting words that may constitutionally be subject to this 2007] EVALUATING THE HARMS OF CROSS BURNINGS

Cross burning and the harms thereof received little mention in an opinion containing an extensive discussion of "quirky examples" 96 involving the First Amendment and libel, 97 flag burning, 98 obscenity, 99 threats to the President,'00 and workplace sexual harassment.' 0' In the next to last paragraph of his opinion Justice Scalia wrote: "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."' 0 2 As for the harms of cross burning, Scalia rejected the argument, made by Justice John Paul Stevens, that the injuries inflicted by that communication are "qualitatively different from that caused by other fighting words...' 0 3 "This is wordplay," Scalia wrote.0 4 "What makes the anger, fear, sense of dishonor, etc., produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc., produced by other fighting words is nothing other than the fact that it is caused by a distinctive idea,

ordinance"'); id. at 419 (Stevens, J., concurring in the judgment) ("Within a particular 'proscribable' category of expression, the Court holds, a government must either proscribe all speech or no speech at all."); Steven G. Gey, A Few Questions About Cross Burning, Intimidation, and Free Speech, 80 NOTRE DAME L. REV. 1287, 1300 (2005) ("The conceptual problem with the R.A. V.majority's theory is that it seems to lead to an all-or-nothing approach to the regulation of unprotected expression."). 96. Guy-Uriel E. Charles, Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits?, 93 GEO. L.J. 575, 589 (2005). 97. While "the government may proscribe libel . .. it may not make the further content discrimination of proscribing only libel critical of the government." R.A. V, 505 U.S. at 384. 98. "[B]urning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not." Id. 99. States may "prohibit only that obscenity which is the most patently offensive in its prurience" but "may not prohibit, for example, only that obscenity which includes offensive political messages." Id. at 385. 100. The criminalization of threats made against the President, see 18 U.S.C. § 871, is lawful "since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President." 505 U.S. at 388. See also Watts v. United States, 394 U.S. 705, 707 (1969) (Section 871 is facially valid given the interest in protecting the President's safety and "allowing him to perform his duties without interference from threats of physical violence"). 101. "[S]exually derogatory 'fighting words' . . . may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices..." 505 U.S. at 389. Such regulation is permissible regulation of the "secondary effects" of speech directed against conduct and not the content of the expression. See id; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). But see R.A.V., 505 U.S. at 410 (White, J., concurring in the judgment) (arguing that "because a general ban on harassment in the workplace would cover the problem of sexual harassment, any attempt to proscribe the subcategory of sexually harassing expression would violate the First Amendment"); Charles, supra note 96, at 594-95 (arguing that "empirical reality belies the contention that sexual harassment claims are directed primarily at conduct and secondarily or incidentally towards speech"). 102. R.A. V.,505 U.S. at 396. Viktora's conduct may have violated state laws concerning terroristic threats, arson, and criminal damage to property. See id. at 380 n. 1. 103. Id. at 424 (Stevens, J., concurring in the judgment). 104. Id. at 392. 16 BERKELEYJOURNAL OFAFRICAN-AMERICANLA W& POLICY [VOL. IX: 1 conveyed by a distinctive message." 10 5 Seeing no constitutionally recognizable difference between the respective harms generated by racist and non-racist fighting words, Scalia opined that "[t]he First Amendment cannot be evaded 1 6 0 that easily." As one analyst remarked, this "language and tone suggested' 0 7a dismissiveness toward claims grounded in the heightened harms of racism..." Emphasizing again that St. Paul had engaged in unlawful content-based discrimination, Justice Scalia noted the city's concession that the ordinance applied only to burning crosses, Nazi swastikas, and like symbols, and that the city had argued in another case that the burning cross "'does express a message and it is, in fact, the content of that message which the St. Paul Ordinance attempts to legislate..." '110 On that view, there is no constitutionally relevant difference between the harms of and injuries caused by a cross burning and, say, calling someone a "bleeding heart liberal" or a "heartless conservative" or "playing the dozens" and talking about someone's mother.' 09 The concurring justices agreed that the St. Paul ordinance violated the First Amendment, albeit with different rationales. 1 0 But their opinions focused on the specific form of hate speech before the Court-cross burning. Justice White, concerned that the Court "legitimates hate speech as a form of public discussion,"1 11 argued that Justice Scalia's majority opinion

signals that expressions of violence, such as the message of intimidation and racial hatred conveyed by burning a cross on someone's lawn, are of sufficient value to outweigh the social interest in order and morality that has traditionally placed such fighting words

105. Id. 106. Id. 107. Kitrosser, supra note 23, at 869 n.125. See also Alexander Tsesis, Hate in Cyberspace: Regulating Hate Speech on the Internet, 38 SAN DIEGO L. REV. 817, 852 (2001) ("Scalia's holding focuses on the value of speech, while giving short shrift to the social harms associated with hate speech."). 108. R.A. V., 505 U.S. at 393. 109. See id. at 391 (stating that the ordinance does not cover fighting words expressing hostility based on political affiliation or words casting "aspersions upon a person's mother"). Playing the dozens "is a custom derived from the oral tradition in African American culture" in which individuals "take turns kidding or insulting ... one another, their adversary's mother, or other family members until one of them has no comeback." Wikipedia, http://en.wikipedia.org/wiki/Playingthedozens (visited March 10, 2006). See also ROBIN D.G KELLY, YO' MAMA'S DISFUNKTIONAL!: FIGHTING THE CULTURE WARS IN URBAN AMERICA 32- 40 (1997) (discussing "playing the dozens"). 110. See 505 U.S. at 397 (White, J., concurring in the judgment) ("the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment"); id. at 415, 416 (Blackmun, J., concurring in the judgment) (agreeing that the ordinance "reaches beyond fighting words to speech protected by the First Amendment"); id. at 417 (Stevens, J., concurring in the judgment) (agreeing that the ordinance was unconstitutionally overbroad). 111. Id. at 402 (White, J., concurring in the judgment). 2007] EVALUATING THE HARMS OF CROSS BURNINGS

outside the First Amendment. 112 For White, the ordinance's selective regulation of a subset of "evil and worthless" fighting words' 3 "reflects the city's judgment that harms based on race, color, creed, religion, or gender are more pressing public concerns than 4 the harms caused by other fighting words."' " Agreeing with that judgment, White stated, "In light of our Nation's long and painful experience with discrimination, this determination is plainly reasonable. Indeed, as the majority ' concedes, the interest is compelling." 15 Justice Harry Blackmun feared "that the Court has been distracted from its proper mission by the temptation to decide the issue over 'politically correct speech' and 'cultural diversity,' neither of which is presented here." 6 He opined that it was possible that the case would "be regarded as an aberration-a case where the Court manipulated doctrine to strike down an ordinance whose premise it opposed, namely, that racial threats and verbal assaults are of greater harm than other fighting words." ' 1 7 Seeing "no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns," Blackmun saw "great harm in preventing the people of Saint Paul from specifically punishing the race- 18 based fighting words that so prejudice their community."'' "Conduct that creates special risks or causes special harms may be prohibited by special rules."' 19 So began Justice Stevens' concurrence. In his

112. Id. (footnote ommitted). White made clear that he was not suggesting that all cross burnings fall outside the protection of the First Amendment, noting that cross burnings at political rallies "would almost certainly be protected expression." Id. at 402 n.4 (citing Brandenburg v. Ohio, 395 U.S. 444 (1969)). See also id. at 436 (Stevens, J., concurring in the judgment): [Viktora] is free to burn a cross to announce a rally or to express his views about racial supremacy, he may do so on private property or public land, at day or at night, so long as the burning is not so threatening and so directed at individuals as to "by its very [execution] inflict injury." Such a limited proscription scarcely offends the First Amendment. 113. Id. at 402 (White, J., concurring in the judgment). 114. Id. at 407. 115. Id. 116. Id. at 416 (Blackmun, J., concurring in the judgment). See also Jeremy J. Ofseyer, Speech or Opinion?: Two Objects of FirstAmendment Immunity, 2002 UTAH L. REv. 843, 921-22 (R.A. V "misused the traditional fighting words doctrine to enforce prevailing standards of political correctness"). In noting Justice Blackmun's reference to political correctness, I do not agree with the view that the politically correct are those on one side of a political or cultural debate (the usual suspects are supposedly those on the "left" side of the political spectrum) who seek to impose their preferred views and ideologies on others. As Stanley Fish argues, political correctness "is not the name of a deviant behavior but of the behavior that everyone necessarily practices," as disputations are not "debates between political correctness and something else, but are between competing visions of political correctness." STANLEY FISH, THERE'S No SUCH THING AS FREE SPEECH AND IT'S A GOOD THING Too 9 (1994). 117. 505 U.S. at 415 (Blackmun, J., concurring in the judgment). 118. Id. at 416. 119. Id. at 416 (Stevens, J., concurring in the judgment). 18 BERKELEYJOURNAL OFAFRICAN-AMERICANLA W&POLICY [VOL. IX:1 view, St. Paul could "determine that threats based on the target's race, religion, or gender cause more severe harm to both the target and to society than other threats."'120 As fighting words prohibited by the ordinance were "qualitatively 2 different and more severe" than other fighting words,' 1 the question "[w]hether the selective proscription of proscribable speech is defined by the protected target ('certain persons or groups') or the basis of the harm (injuries 'based on race, color, creed, religion or gender) makes no constitutional difference..."' 122 Rejecting Justice Scalia's view that the ordinance regulated speech and expressions concerning certain subjects, 123 Stevens urged that "the ordinance regulates only a subcategory of expression that causes injuries based on 'race, color, creed, religion or gender,' not a subcategory that involves discussions that concern those characteristics. ' 24 On that view, the at-issue cross burning-"directed as it was to a single African-American family trapped in their home" 125-was not just a way of expressing a racist and discriminatory view; rather, it was an intimidating and injurious act subject to legislative proscription and was not protected by the First Amendment.

B. Black's Harm-Valuation Approach

In May 1998, in Virginia Beach, Virginia, Richard Elliott and Jonathan O'Mara attempted to burn a cross in the yard of Elliott's next door African- American neighbor, James Jubilee. 126 Their conduct was a response to Jubilee's complaint to Elliott's mother that guns were being fired in the Elliott's backyard.127 Using a racial epithet when referring to Jubilee, 128 Elliott, O'Mara, and another individual constructed a wooden cross, drove onto Jubilee's property in a truck and planted the cross in the ground, and tried to light it. The following morning Jubilee saw "the partially burned cross approximately 20 feet from his house."' 29 Retaining the right to appeal, O'Mara pled guilty to violating Virginia's cross burning law and was sentenced

120. Id. at 424. See also The Honorable John Paul Stevens, The Freedom of Speech, 102 YALE L.J. 1293, 1311 (1993) ("We should at least consider the possibility that racial, religious, and gender-based invectives can cause distinct and especially grievous injury, particularly when used by members of a powerful group against an individual already disadvantaged by a hostile environment."). 121. 505 U.S. at 425 (Stevens, J., concurring in the judgment). 122. Id. 123. See supra note 83 and accompanying text. 124. 505 U.S. at 433 (Stevens, J., concurring in the judgment). 125. Id. at 432. 126. See Virginia v. Black, 538 U.S. 343, 350 (2003). 127. "Elliott's mother explained to Jubilee that her son shot firearms as a hobby, and that he used the backyard as a firing range." Id. 128. See Black v. Virginia, 262 Va. 764, 768 (2001), rev'd, 538 U.S. 343 (2003). 129. See 538 U.S. at 350. "Jubilee was 'very nervous' because he 'didn't know what would be the next phase,' and because 'a cross burned in your yard ... tells you that it's just the first round."' Id. 2007] EVALUATING THE HARMS OF CROSS BURNINGS to 90 days in jail and was fined $2,500. 130 A jury found Elliott guilty of attempted cross burning and sentenced him to 90 days in jail and a $2,500 13 1 fine. In August 1998 Barry Black led a Ku Klux Klan rally on private property, with the permission of the property's owner, in Carroll County, Virginia. Speakers at the rally "talked real bad about the blacks and Mexicans."' One speaker "said that he would love to take a .30/.30 and just random[ly] shoot blacks" and wanted to "'send the blacks and the Mexicans back where they came from.."."133 Other speakers "talked about President Clinton and Hillary Clinton" and about "how their tax paying goes to keep the black people up...' 34 At the end of the rally a 25 to 30 foot cross was ignited as the song "Amazing Grace" was played over loudspeakers.'3 5 The county sheriff, observing the rally and the burning cross, arrested Black. Black was charged with and indicted for violating Virginia's cross burning statute, which provided that it is "unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.' ' 136 Black was convicted by ajury and fined $2,500.137 All three cross burners appealed their convictions. Ruling in their favor and relying on R.A. V v. City of St. Paul, Minnesota,138 the Supreme Court of Virginia held that the Commonwealth's cross-burning statute was unconstitutional on its face and was overbroad. The court determined that the Virginia law, like the at-issue ordinance in R.A. V., "seeks to proscribe expressive conduct that is intimidating in nature, but selectively chooses only cross burning because of its distinctive message."' 39 Specifically referring to "the historical and current context of cross burning"' 140 and the background leading to the enactment of the Virginia law, the court opined:

130. Forty five days of the sentence and $1,000 of the fine were suspended. See id. 131. Seeid. at351. 132. Id. at 349 (quoting witness testimony). 133. Black, 262 Va. at 782 (Hassell, J., dissenting) (bracketed material added). 134. Id.; Black, 538 U.S. at 349. 135. In addition to "Amazing Grace," the Klan bums crosses while playing and singing "The Old Rugged Cross" and "Onward Christian Soldiers." See CAROL M. SWAIN, THE NEW WHITE NATIONALISM IN AMERICA: ITS CHALLENGE TO INTEGRATION 387 (2002). 136. VA. CODE ANN. §18.2-423 (1996). The statute further provided that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Id. On the constitutionality of this prima facie evidence provision, see infra note 149. 137. See 538 U.S. at 350. 138. 505 U.S. 377 (1992). 139. Black v. Commonwealth of Virginia, 262 Va. 764, 774 (2001), rev'd, 538 U.S. 343 (2003). 140. 262 Va. at 775. In the court's view, given "the statute's reliance on such context for the provision of an inference of intent to intimidate from the mere act of burning a cross, it is clear that the Commonwealth's interest in enacting the cross burning statute is related to the suppression of free expression as well." Id. 20 BERKELEYJOURNVAL OFAFRICAN-AMERICANLA W&POLICY [VOL. IX: I

In an atmosphere of racial, ethnic, and religious intolerance, the General Assembly acted to combat a particular form of intimidating symbolic speech-the burning of a cross. It did not proscribe the message is burning of a circle or 4a 1 square because no animating contained in such an act.' The Commonwealth sought and obtained the United States Supreme Court's review of the Virginia high court's ruling. An interesting and important occurrence during the parties' December 2002 oral argument before the Court warrants comment.14 2 As Deputy Solicitor General Michael Dreeben argued on behalf of the United States as amicus curiae in support of Virginia, Justice Clarence Thomas asked whether Dreeben was "understating the... effects of... the burning cross?' ' 143 This question led to the following exchange:

[Justice Thomas]: Now, it's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and-and the Ku Klux Klan, and this was a reign of terror and the cross was the symbol of that reign of terror. Was-isn't that significantly greater than intimidation or a threat? [Dreeben]: Well, I think they're coextensive, Justice Thomas, because it is- [Justice Thomas]: Well, my fear is, Mr. Dreeben, that you're actually understating the symbolism on-of and the effect of the cross, the burning cross. I-I indicated, I think, in the Ohio case that the cross was not a religious symbol and that it has-it was intended to have a virulent effect. And I-I think that what you're attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society...... [M]y fear is that the-there was no other purpose to the cross. of a particular message. It was intended There was no communication 144 to cause fear... and to terrorize a population. According to one journalist's account, these statements by Justice Thomas

141. Id. at 776. Addressing this problem, Virginia subsequently enacted a law prohibiting the burning of "an object" "with the intent of intimidating any person or group of persons." VA. CODE ANN. § 18.2-423.01 (2002). This law did not repeal the cross burning statute. See Black, 538 U.S. at 352 n.1. 142. Interestingly, the oral argument of the case before the Virginia Supreme Court took place on September 10, 2001, one day before the terrorist attacks on the World Trade Center and the Pentagon. Dean Rodney Smolla, counsel for the defendants, remarked: "I felt at the time, and still feel, that the events of that day, along with other events in our history and culture, strongly influenced the ultimate resolution of the case." Smolla, supra note 68, at 158. 143. Virginia v. Black, Oral Argument, U.S. S. Ct. No. 01-1107 (Dec. 11, 2002), 2002 WL 81838589 at *22. 144. Id., 2002 WL 81838589 at *22-*24. The Ohio case referenced by Justice Thomas is to his dissent in Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995). 2007] EVALUATING THE HARMS OF CROSS BURNINGS

provided an "emotional high point" as the Justice "broke his customary silence during oral argument to drive home the point that the history of cross burning... makes it uniquely threatening not only to minorities, but to others as well.' 45 For Dean Rodney Smolla, participating in the oral argument as counsel for the challengers to the Virginia law, "the impact of Justice Thomas's remarks was palpable and physical.' 46 "In all my life as an advocate and observer of legal proceedings," Smolla has reported, "I have never seen the mood in a courtroom change so suddenly and dramatically.' 47 Consider Smolla's observations and reaction:

Justice Breyer, who sat next to Thomas on the bench, drew closer to him, putting an arm on his back in a gesture of collegial respect and good will. Justice Scalia, who sat on the opposite side of Thomas but nearly facing him (because of the curvature of the bench), seemed to viscerally connect with his fellow justice, nodding in agreement as he spoke. By my preliminary reckoning, Justices Scalia and Thomas had been the two surest votes for our side. Scalia was the author of R.A. V., our strongest precedent. Thomas had joined in the R.A. V opinion. Thomas had also written an opinion on cross burning that explained how the Klan had used it as a political and social symbol of racial supremacy. These were the last two justices whom I would have expected to be against us. Suddenly, in the space 14of8 a minute, they seemed the two justices most hostile to our position.

145. Charles Lane, High Court Hears Thomas on KKK Rite, WASH. POST. (Dec. 12, 2002), at Al. Lane wrote that "Thomas's remarks electrified the courtroom and appeared to bolster Virginia's case, by signaling that a key member of the court strongly agreed with a crucial element of the state's argument: that its law proscribes not mere 'hate' speech, but actual threatening conduct." Id.; see also Charles, supra note 96, at 611 (arguing that Justice Thomas's participation in the Black oral argument "best explains the Court's decision to turn away from the absolutist position of R.A. V. to the more flexible and nuanced approach reflected in Black"); Angela Onwuachi-Willig, Using the Master's "Tool" to Dismantle His House: Why Justice Clarence Thomas Makes the Case for Affirmative Action, 47 ARIZ. L. REv. 113, 148 (2005) ("Clearly, Justice Thomas and his unique perspective impacted the way the other Justices approached the case, forcing them to view the cause of action from a different angle, even if they ultimately rejected his analysis."). For additional discussions of Thomas's statements in the Black oral argument, see Paul Brest, Diversity Gives Depth to the Law, L.A. TIMES (Jan. 3, 2003), at B13; Linda Greenhouse, An Intense Attack by Justice Thomas on Cross-Burning,N.Y. TIMES (Dec. 12, 2002), at Al; Patricia J. Williams, Strange Fruit, NATION (Jan. 13, 2003), at 9. 146. Smolla, supra note 68, at 164. 147. Id. 148. Id. at 164-65. Believing that Thomas's words "had obviously affected everyone in the courtroom, particularly his eight fellow justices," Smolla did not try to deny the history of the KKK or cross burning's "evil connotations." Id. at 165. Positing that a cross burning "is not a particularly virulent form of intimidation," 2002 WL 31838589 at *31, he argued, among other things, that society could protect the victims of cross burnings via content-neutral alternatives and penalty enhancements, and that criminalizing the burning of the cross but not other symbols constitutes content-based discrimination within a category of proscribable activity and communication. See id. at *31, *32, *33. Arguing, further, that R.A. V. and Black were identical cases, Smolla contended that 22 BERKELEYJOURNAL OFAFRICAN-AMERICANLA W& POLICY [VOL. IX: 1

In April 2003 the Supreme Court issued its decision. Writing for the Court, Justice O'Connor concluded that the state, "consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate..." 49 In a notable departure from R.A. V., Part II of O'Connor's opinion contained an extended discussion of the history and threatening and menacing messages of cross burnings, beginning with the origins and violent tactics of the Ku Klux Klan.15 0 "[T]he association between cross burning and the Klan became indelible" after the 1915 release of W.D. Griffith's movie The Birth of a Nation; since that time, O'Connor stated, "cross burnings have been used to communicate both threats of violence and messages of shared ideology."' 15 1 She noted that the "first known cross burning in the country" occurred in Atlanta, Georgia "when a Georgia mob celebrated the lynching of Leo Frank,"'152 with the second recorded burning occurring in a Klan initiation

the reason they don't seem identical perhaps is that it is harder ... to locate the viewpoint and content discrimination in our minds when we think of the burning cross than when we think of the language of R.A. V., which talked about anger or resentment on the basis of race, color, creed. And that may well be because of the kind of Pavlovian connection that you have identified where we feel this loathing, and we feel this-this generalized fear when we see the sight of the burning cross. Id. at *40-*41. 149. Virginia v. Black, 538 U.S. 343, 347 (2003). The Court also held that the statutory "provision treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form." Id. at 348. Justice O'Connor reasoned that the provision "permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense" and "permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself." Id. at 365. The provision thus "blurs the line between" legally proscribable intimidation and core political speech and "chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute-and possibly convict-somebody engaging only in lawful political speech..." Id. Accordingly, the Court affirmed the Virginia Supreme Court's judgment in favor of Barry Black, and vacated the judgments against Elliott and O'Mara and remanded the case for additional proceedings. See id. at 367. On remand, the Virginia high court held that the prima facie evidence provision was overbroad and violated the First Amendment, and further held that the provision was severable and that Elliott and O'Mara were not entitled to retrials. See Elliott v. Commonwealth of Virginia, 267 Va. 464, 593 S.E.2d 263 (2004). 150. See 538 U.S. at 352-54. Justice O'Connor noted that the first Klan began in Pulaski, Tennessee in 1866. See id. at 352. "Their first meeting was not in the deep woods or in a cotton field, but in a law office in Pulaski, Tennessee." Catherine E. Smith, (Un)masking Race-Based IntracorporateConspiracies under the Ku Klux Klan Act, 11 VA. J. SOC. POL'Y & L. 129, 129-30 (2004). The origins of the second Klan commenced in 1905, the year of the publication of Thomas Dixon's book The Clansmen: An HistoricalRomance of the Ku Klux Klan. See 538 U.S. at 353. 151. Id. at 354. Birth of a Nation "stimulated the rebirth of the Ku Klux Klan" and "reflects the reassertion of the original understanding of the United States as a white nation in which blacks, now citizens, had no real rights." Taunya Lovell Banks, Exploring White Resistance to Racial Reconciliation in the United States, 55 RUTGERS L. REV. 903, 927 (2003). See also id. at 934 (Birth of a Nation "greatly revitalized" the Klan and "enrolled millions" in that organization). 152. 538 U.S. at 354. For accounts of the lynching of Leo Frank and the events leading to his murder, see STEVE ONEY, AND THE DEAD SHALL RISE: THE MURDER OF MARY PHAGAN AND THE LYNCHING OF LEO FRANK (2003); ROBERT S. FREY, THE SILENT AND THE DAMNED: THE 2007] EVALUATING THE HARMS OF CROSS BURNINGS

53 ceremony one month later in Stone Mountain, Georgia. 1 Justice O'Connor then turned to the violent activity engaged in by the Klan. 154 "Often, the Klan used cross burnings as a tool of intimidation and a threat of impending violence."' 55 Between 1939 and 1942 the Klan burned crosses at churches and synagogues, in front of a proposed housing project in Miami, and at a union hall and at the home of a union leader in Alabama. 156 In the late 1940's crosses were burned at the home of an African-American family after they moved into a previously all-white neighborhood in Richmond, Virginia, and another cross was set afire in Suffolk, Virginia.157 Reacting to Brown v. Board of Education and the Civil Rights Movement, 159 the' 60 Klan engaged in "bombings, beatings, shootings, stabbings, and mutilations."'

Members of the Klan burned crosses on the lawns of those associated with the civil rights movement, assaulted the Freedom Riders, bombed churches, and murdered blacks as well as whites whom the Klan viewed as sympathetic toward the civil rights movement. 161 Justice O'Connor also discussed the burning cross as a symbol of white supremacist ideology. "The burning cross became a symbol of the Klan itself and a central feature of Klan gatherings," with the kloran (the Klan constitution) designating the "'fiery cross' as the "'emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and principles we have espoused. ' ' 162 Crosses were burned at rallies and initiations, at the weddings of Klan members, and in opposition to state legislation and integration efforts and in support of politicians.' 63 "In short, a burning cross

MURDER OF MARY PHAGAN AND THE LYNCHING OF LEO FRANK (2002). 153. 538 U.S. at 354. 154. See id. ("By September 1921, the New York World newspaper documented 152 acts of Klan violence, including 4 murders, 41 floggings, and 27 tar-and-featherings."). 155. Id. 156. See id. at 355. 157. See id. 158. 347 U.S. 483 (1954). 159. See Jerome McCristal Culp, Jr., Colorblind Remedies and the Intersectionality of Oppression: Policy Arguments Masqueradingas Moral Claims, 69 N.Y.U. L. REV. 162, 163 n.3 (1994) (capitalizing "the Civil Rights Movement in order to distinguish its mythic stature in the discourse of colorblindness from the reality"). 160. 538 U.S. at 355 (citations omitted). 161. Id. at 355-56. The violent and often murderous responses to the Civil Rights Movement are detailed in TAYLOR BRANCH, AT CANAAN'S EDGE: AMERICA IN THE KING YEARS 1965-68 (2006); TAYLOR BRANCH, PILLAR OF FIRE: AMERICA IN THE KING YEARS 1963-65 (1998); TAYLOR BRANCH, PARTING THE WATERS: AMERICA IN THE KING YEARS 1954-63 (1988); DIANE MCWHORTER, CARRY ME HOME: BIRMINGHAM, ALABAMA: THE CLIMACTIC BATTLE OF THE CIVIL RIGHTS REVOLUTION (2001). 162. 538 U.S. at 356 (quoting The Ku Klux Klan Hearings before the House Committee on Rules, 67 th Cong., 1st Sess., 114, Exh. G (1921)). 163. See id. at 356-57. Justice O'Connor noted that the Klan burned crosses in response to state legislatures' consideration of antimasking bills. See id. at 356. (Antimasking laws prohibit 24 BERKELEYJOURNAL OFAFRICAN-AAERICANLA W& POLICY [VOL. IX:lI

64 has remained a symbol of Klan ideology and of Klan unity."' Having set forth this historical and factual backdrop, Justice O'Connor opined that the burning cross, a "symbol of hate," "sometimes carries no intimidating message, [and] at other times the intimidating message is the only message conveyed."' 165 That "message of intimidation" is "designed to inspire in the victim a fear of bodily harm" when a cross buming targets "a particular " person not affiliated with the Klan... 66 Given the Klan's violent history, that fear and "the possibility of injury or death is not just hypothetical,"' 67 for the cross burner "is making a serious threat, meant to coerce the victim to comply with the Klan's wishes unless the victim is willing to risk the wrath of the Klan."' 68 "In sum," she concluded, "while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the fear for their lives. And when a cross burning is used recipients of the message 169 to intimidate, few if any messages are more powerful."' That the burning cross is a symbol of hate associated with the ideology and rituals of the Ku Klux Klan did not end the First Amendment analysis, for that amendment "affords protection to symbolic or expressive conduct as well as to actual speech.' 170 Protection, but not absolute protection.' 7' Citing Watts v. United States, 172 Justice O'Connor noted that states may ban "true threats"-

"the wearing of hoods, masks, or robes in public," Terry A. Maroney, Note, The Struggle Against Hate Crime: Movement at a Crossroads, 73 N.Y.U. L. REV. 564, 589 n.143 (1998)). And, O'Connor noted, after a 1960 presidential debate between John F. Kennedy and Richard Nixon, in which "both candidates renounce[ed] the Klan," "the Klan reiterated its support for Nixon by burning crosses." 538 U.S. at 357 (citation omitted and bracketed material added). 164. Id. 165. Id. (bracketed material added). 166. Id. 167. Id. 168. Id. 169. Id. 170. Id. at 358 (citations omitted). 171. See supra notes 25-35 and accompanying text. 172. 394 U.S. 705 (1969) (per curiam). Robert Watts was convicted of violating a federal law prohibiting any knowing and willful "threat to take the life or to inflict bodily harm upon the President of the United States.. " 18 U.S.C. § 871. Participating in a public rally and stating that he had received his draft classification and had to report for a physical, Watts said: "I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.," referring to President Lyndon B. Johnson. 394 U.S. at 706. The jury's decision that Watts violated the statute was affirmed by the United States Court of Appeals for the District of Columbia Circuit in an opinion by Chief Judge (later Supreme Court Chief Justice) Warren Burger. See Watts v. United States, 402 F.2d 676 (1968). The Supreme Court reversed. Concluding that the law was constitutional on its face, the Court reasoned that "a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech." 394 U.S. at 707. The Court did "not believe that the kind of political hyperbole indulged in by [Watts] fits within" the statutory term "threat." Id. at 708. Taking Watts' statement "in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners," the Court agreed with Watts that "his only offense here was a kind of very crude offensive method of stating a political opposition to the President." 2007) EVALUATING THE HARMS OF CROSS BURNINGS

"statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."' 173 Intimidation "is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. 174 As cross burning "is often intimidating" and is "intended to create a pervasive fear in victims that they are a target of vioience,"' 75 a state may ban these burnings when those engaging in this expressive conduct do so with intimidatory intent. Did Virginia's statute unconstitutionally prohibit cross burnings? Rejecting the Virginia Supreme Court's reliance on R.A. V., Justice O'Connor opined that R.A. V. did not hold that all content-based discrimination within a proscribable area of speech is prohibited by the First Amendment. "[S]ome types of content discrimination" are permissible, the justice wrote, so long as the discrimination is "'based on the very reasons why the particular class of speech at issue... is proscribable." '' 76 Unlike the statute struck down by the Court in R.A.V, O'Connor determined, Virginia's ban on cross burning with the intent to intimidate did not single out or discriminate against speech directed toward any particular topic. 17 7 (Query whether this is an accurate statement given the statute's ban on one and only form of symbolic speech- 178 the burning cross.) O'Connor concluded: The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly

Id. (internal quotation marks omitted). 173. 538 U.S. at 359 (citation omitted). For more on the Court's "true threats" jurisprudence, see Steven G. Gey, The Nuremberg Files and the First Amendment Value of Threats, 78 TEX. L. REv. 541 (2000). 174. Black, 538 U.S. at 360. 175. Id. 176. Id. at 362 (quoting R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 393 (1992)). 177. "Indeed, in the case of Elliott and O'Mara, it is at least unclear whether the respondents burned a cross due to racial animus." Id. at 363 (citation omitted). For discussion of an incident of allegedly non-racial and non-racist cross burning, see Ronald Turner, "Little Black Sambo, "Images, and Perceptions: Professor Cohen 's Critique of ProfessorLawrence, 12 HARV. BLACKLETTER L.J. 131, 159 (1995) (discussing Charles Murray's teenage participation in a cross burning in Newton, Iowa and his claim that "There wouldn't have been a racist thought in our simple-minded minds. That's how unaware we were."). 178. "Virginia says its law did not discriminate on the basis of the content of symbolic speech because the law applies to anyone who bums a cross with the intent to intimidate anyone for any reason. Oh, please." George Will, Burning to Regulate Expression, WASH. POST (Apr. 13, 2003), at B7 (internal quotation marks omitted). Professor Steven Gey, positing that Justice O'Connor's opinion "borders on the incoherent," Gey, supra note 95, at 1288, has argued that if the burning cross is "a historical symbol of impending violence tied to the Klan's hatred of certain racial and religious groups .. . then the symbol is a content- and viewpoint-laden symbol of targeted hatred." Id. at 1306. If, instead, it is a symbol with "no particular significance, and is just one of many methods of communicating a threat," then cross burning "is just one of many methods of communicating a threat, which should not be used as the focal point of a specialized threats statute. The Court cannot have it both ways." Id. 26 BERKELEYJOURVNAL OFAFRICAN-AMERICANLA W& POLICY [VOL. Ix: 1

virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating message in light of cross burning's long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R.A.V. and is proscribable under the First Amendment. 179

III. R.A.V. OR BLACK?: CONFLICTING ANALYSES

R.A. V. and Black: two cases addressing the constitutionality of laws prohibiting certain cross bumings. One decision striking down St. Paul, Minnesota's legislative proscription of cross burnings "one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race" and other specified characteristics.' The other decision holding that a statutory ban on cross burning with the intent to intimidate 18 did not violate the First Amendment. One decision (R.A. V) rejecting a city's attempt to outlaw cross burning with little said about the harms of this expression, the other (Black) emphasizing the harms of certain burnings of this "single vertical bar traversed by a single shorter horizontal bar..."' 82 Both decisions treating cross burning as a vehicle for communicating racist and white supremacist beliefs, with this selectivity deemed to be violative of the First Amendment in R.A. V. and a constitutional exercise of governmental power in Black. Can the different outcomes in the Court's 1992 and 2003 decisions be explained, at least in part, by the absence and presence of an evaluation of the harms of cross burning in R.A. V and Black, respectively? As previously discussed, R.A. V 's analysis and resolution of the free-speech issue before the Court did not turn on, and indeed only briefly mentioned, the harms of cross burning. Justice Scalia's opinion for the Court made clear that the government may proscribe certain speech (the set) but may not selectively target some of

179. 538 U.S. at 363. In a separate opinion Justice Souter, joined by Justices Kennedy and Ginsburg, argued that the Virginia law "selects a symbol with particular content from the field of all proscribable expression meant to intimidate." Id. at 381 (Souter, J., concurring in the judgment in part and dissenting in part). Determining that the law did not fall within the R.A. V. exceptions and did not resemble the illustrative examples discussed in the 1992 decision, Souter wrote that a "content-based proscription of cross burning . .. may be a subtle effort to ban not only the intensity of the intimidation cross burning causes when done to threaten, but also the particular message of white supremacy that is broadcast even by nonthreatening cross burning." Id. 180. ST. PAUL, MINN. BIAS-MOTIVATED CRIME ORDINANCE, CODE § 292.02 (1990). 181. See VA. CODE ANN § 18.2-423 (1996). 182. Black v. Commonwealth of Virginia, 262 Va. 764, 770 (2001), affd in part, vacated in part and remanded, 538 U.S. 343 (2003). 20071 EVALUATING THE HARMS OF CROSS BURNINGS that speech (the subset) because doing so constitutes presumptively i 3 unconstitutional discrimination on the bases of content and viewpoint., Thus, and with certain exceptions,'8 4 under R.A. V.a governmental entity could constitutionally criminalize all but not only some expressions falling within a particular category of speech (for example, could criminalize all fighting words but not just racist fighting words). On that view, a legislature's prohibition of cross burning violates the First Amendment. There is no qualitative difference, the argument goes, distinguishing the harms related to and caused by a burning cross from the harms produced by other expressions and communications. The injuries caused by a cross burner's targeting of individuals because of their race, religion, or gender are no worse or any more severe than injuries caused by the communication of other non-racial, etc. ideas or messages. If this is correct, singling out cross burning for legislative prohibition is based upon the racist and bigoted views and ideas of cross burners and not the harms suffered by their targets and victims. Content and viewpoint discrimination, and not harm, were the foci of the R.A.V Court's analysis and holding. Unlike R.A. V., the harmful consequences of cross burning were discussed at some length and were evaluated by Justice O'Connor in Black.185 Her opinion for the Court, joined by Justice Scalia, focused on cross burning as a historical and contemporary phenomenon and as a white supremacist symbol and signal to African-Americans of actual or potential murders, beatings, whippings, bombings, and threats.18 6 Burning a cross with the intent to intimidate others is not just some abstraction or topic for philosophical rumination. Individuals who express their bigotry by the intimidatory placement and burning of crosses violate the human and civil rights of their targets. Those subjected to this noxious practice must deal with the horror and aftermath of this intentional and fear-generating intrusion into their lives. When cross burnings are viewed and understood in this way, the argument that there is no qualitative difference between the harms of cross burning and the harms of communications regarding other subjects is less persuasive and, in this writer's view, is ultimately unconvincing. Approaching the issue of the constitutionality of bans on cross burnings from the vantage point of the injuries inflicted and the harms caused by that expression thus reveals a significant analytical difference between R.A. V. and Black. To reiterate, R.A. V. 's First-Amendment-sans-harms analysis stands for the proposition that selective anti-cross-burning laws are "never permissible, regardless of the harms sought to be prevented."18 7 Judicial harm-valuation is

183. See supra notes 85-90 and accompanying text. 184. See supra notes 100-01 and accompanying text. 185. See supra note 165-69 and accompanying text. 186. See supra note 160-64 and accompanying text. 187. ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 230 28 BERKELEYJOURNAL OFAFRICAN-AMERICANLA W&POLICY [VOL. IX: 1

not a helpful or informative analytic for a jurist taking this approach, for there is no need to evaluate that which does not matter. As we have seen, Black's analysis placed the harms of cross burnings front and center. Governments can protect persons from true threats' 88 and can single out one communicative act-cross burning-from the universe of expressions where it has been determined that intimidation-by-cross-burning warrants a focused statutory response and prohibition. Given R.A. V. one could have thought, understandably, that Virginia was required to address this issue by outlawing all intimidation (the set) and could not selectively proscribe the white supremacist symbol of the burning cross (the subset). 189 The Black Court's willingness to focus on and assess the harm of cross burnings stands in contrast to the conspicuous absence of an evaluation of harm in R.A. V. Harm-valuation in constitutional challenges to cross-burning bans, like harm-valuation in other First Amendment cases,1 90 makes necessary and relevant the consideration of context, perspective, and experience. As both the historical and situational contexts of cross burnings were taken into account in Justice O'Connor's opinion in Black,191 the Court's analytical focus was on those victimized by such incidents and not on "abstract, foundational principles"'192 of First Amendment law and jurisprudence. The importance of perspective and experience are illustrated by Justice Thomas's statements in the Black oral argument'9 3 and in his opinion dissenting from the Court's judgment. That dissent, written by a member of the R.A. V. majority,' 94 opened with the following observation: "In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred... and the profane. I believe that cross burning is

(1996). 188. See supra note 173 and accompanying text. 189. See supra note 86 and accompanying text. 190. See supra Part I(B). 191. See supra notes 150-64 and accompanying text. Professor Jeannine Bell has argued that cross burnings "have both a historical context and a situational context." Jeannine Bell, 0 Say, Can You See: Free Expression by the Light of Fiery Crosses, 39 HARV. C.R.-C.L. L. REv. 335, 343 (2004). She writes: The historical context describes the way in which a particular type of event, such as the burning of a cross, has been generally used and understood by a particular group of people over a discrete period of time. I use the term situational context to refer to the circumstances of a particular event, for example the cross burning on the Joneses' front lawn [in the R.A. V. litigation]. Id. (bracketed material added). 192. Robert L. Tsai, Fire, Metaphor, and ConstitutionalMyth-Making, 93 GEO. L.J. 181, 223 (2004). 193. See supra notes 143-44 and accompanying text. 194. One scholar has noted that "[i]t is not clear to me why Justice Thomas joined Justice Scalia in R.A. V. without writing or speaking, but dissented so vigorously in Black. One can surmise that perhaps as a new member of the Court, Justice Thomas did not want to make waves." Charles, supra note 96, at 608 n.250. 2007] EVALUATING THE HARMS OF CROSS BURNINGS the paradigmatic example of the latter." 195 The justice's reference to "outsiders" is interesting in that the only African-American member of the Court appears to position himself as an outsider who is privy to something that insiders (including, in this case, the other justices) may not understand and fully appreciate-the real impact and harms of cross burnings. As the late Judge Leon Higginbotham (no fan of Justice Thomas)196 once pointed out, "The danger of a homogeneous court is that there is no 'outsider' within the court to '1 97 challenge the biases the dominant group accepts as 'self-evident' truths." Thomas assumed this "outsider" role as he "analyzed the harm caused by cross burning from his perspective as a person of color."' 19 8 This critical race theory moment' 99 is all the more intriguing and ironic in light of Thomas's repudiation of critical race theory200 and his previously stated position that an impartial judge must "not look to his or her sex or racial, social, or religious background when deciding a case. It is exactly these factors that a judge must push to one 201 side in order to render a fair, reasoned judgment on the meaning of the law." Thomas's racial background was not pushed aside in Black. His understanding of the meaning and cultural significance of the burning cross cannot be separated from his experience as an African American, and it appears that his views influenced the other members of the Court. 202 Thus, to the extent that

195. Black, 538 U.S. at 388 (Thomas, J., dissenting). 196. See A. Leon Higginbotham, Jr., An Open Letter to Justice Clarence Thomas from a FederalJudicial Colleague, 140 U. PA L. REv. 1005 (1992) (expressing concern about Thomas's knowledge of history and judicial philosophy). 197. A. Leon Higginbotham, Jr., Seeking Pluralism in Judicial Systems: The American Experience and the South African Challenge, 42 DUKE L.J. 1018, 1041 (1993). 198. Charles, supra note 96, at 608. See also id. at 611: Justice Thomas-an African-American colleague, a conservative, raised in the South, a victim of racism-possesses epistemic authority and commands epistemic deference. He alone on the Court is positioned to explain, on the basis of what he knows to be true and what he has experienced as a person of color, the distinctive harm caused by cross burnings from the perspective of one of its likely victims. For accounts of Justice Thomas's life and experiences with discrimination and racism, see KEN FOSKETT, JUDGING THOMAS: THE LIFE AND TIMES OF CLARENCE THOMAS (2004); KEVIN MERIDA & MICHAEL A. FLETCHER, SUPREME DISCOMFORT: THE DIVIDED SOUL OF CLARENCE THOMAS (2007); CLARENCE THOMAS, MY GRANDFATHER'S SON: A MEMOIR (2007). 199. See Charles, supra note 96, at 626 ("Justice Thomas's dissent in Black and his participation in the case is critical race theory"). For another and more recent example of Thomas's focus on the implications of law and legal rulings on communities of color, see Kelo v. City of New London, Conn., 545 U.S. 469 (2005), wherein the Court held that a city's use of the eminent domain power in furtherance of an economic development plan was a "public use" within the meaning of the Takings Clause of the Fifth Amendment to the Constitution, U.S CONST. amend. V. In his dissent in that case Thomas argued that "[u]rban renewal projects have long been associated with the displacement of blacks" and that "the predictable consequence of the Court's decision will be to exacerbate these effects." Id. at 522 (Thomas, J., dissenting). 200. See Justice Clarence Thomas, Judging, 45 U. KAN. L. REV. 1, 3 (1996) (discussing and criticizing critical race theory and other schools of legal analysis). 201. Id. at 4. 202. See supra notes 145-48 and accompanying text. 30 BERKELEYJOURNAL OFAFRICAN-AERICANLA W& POLICY [VOL. IX: 1

Thomas's position in Black is grounded in and flows from his racialized perspective, his approach to the issue of the constitutionality of laws banning cross burnings is a departure from his impartial and deracinated model jurist. Disagreeing with the Black Court's imputation of "an expressive component to the activity in question," Justice Thomas opined that "whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means."2 °3 Thus, any conclusion that the Virginia law "sweeps beyond a prohibition of certain conduct into the zone of expression overlooks not only the words of the statute but also reality., 20 4 "In our culture," Thomas said, "cross burning has almost invariably meant lawlessness and understandably instills in its victims well- grounded fear of physical violence. 20 5 Although Justice Thomas dissented from the Black Court's holding and judgment, he agreed with Justice O'Connor that the harms of cross burnings should be recognized and assessed by the Court in construing and applying the First Amendment. Far from a novel development, this interpretive approach is consistent with and is the latest in the line of Court decisions justifying the regulation of certain speech by reference to harm. 20 6 This harm-valuation analytic, so prominent in Black and so conspicuously absent in R.A. V, was a critical factor in Black's constitutional calculus and explains the different analyses and ultimate conclusions reached in two cases which "are more alike than unlike. 20 7 The harms caused and inflicted by cross burnings were as real in 1992 as they were in 2003 and do not disappear or dissipate just because Supreme Court Justices choose to employ a methodology in which harm is rendered invisible or is relegated to an afterthought status.

CONCLUSION

The potential and actual harms of cross burnings in certain circumstances and contexts have always existed. That African Americans and other targets of

203. Black, 538 U.S. at 388 (Thomas, J., dissenting). Thus, for Justice Thomas, Black was not a First Amendment case involving arguably protected speech and expression; rather, the at- issue cross burning was simply unprotected conduct. In support of his argument that the legislature criminalized conduct and not expression, Thomas noted that "racial segregation was not only the prevailing practice, but [was] also the law in Virginia." Id. at 393. "It strains credulity to suggest that a state legislature that adopted a litany of segregationist laws self- contradictorily intended to squelch the segregationist message." Id. at 394. Accordingly, he concluded, "[i]t is simply beyond belief that . . . the Virginia Legislature was concerned with anything but penalizing conduct it must have viewed as particularly vicious." Id. 204. Id. at 388. 205. Id.at391. 206. See Kagan, supra note 41, at 893; supra Part I(B). 207. Eberle, supra note 69, at 979. This argument assumes a St. Paul, Minnesota ordinance without the overbreadth deficiency found by all members of the R.A. V. Court. 2007] EVALUATING THE HARMS OF CROSS BURNINGS such communicative acts could be placed in fear and be legitimately concerned about violence and bodily harm as they looked out of the windows of their homes at crosses burning on their property was and should have been as clear to all in 1992, when the Court decided R.A. V, as it was in 2003 when the Court issued its decision in Black. Why the Court undertook a harms-based analysis in Black after not employing that analytic in R.A. V. is an important question, one made all the more significant by the different emphases and reasoning of those decisions with regard to the harms of cross burnings. By some accounts, as discussed above, the focus on harm in Black is attributable to and is the direct result of Justice Thomas's critical race theory moment.20 8 Whatever the explanation(s), the Court's emphasis on and explicit evaluation of the harms of cross burning in Black is a departure from and cannot be squared with R.A. V 's acontextual and ahistorical application of the First Amendment.

208. See supra note 199 and accompanying text.