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.