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.