Cross Burning: Free Speech?

Free speech has its limits – most famously, the cry of "fire" in a crowded theater. But does a symbolic gesture, such as burning a cross, carry the same kind of immediate threat to public order and safety and thus warrant prohibition?

The Supreme Court agreed to answer that question in accepting a case in which Virginia's highest court overturned a law against cross burning.

For most Americans, and particularly African-Americans, the instinctive answer to the above question would be "yes." Cross burnings, a standard ritual at Ku Klux Klan rallies, were in the distant past often a prelude to lynchings or other violence. Today, the hatefulness of the "message" lives on in anonymous acts, often on people's front lawns.

The Supreme Court, however, already has indicated in a 1992 ruling that symbolic speech, no matter how despicable, can't be banned because of its repugnance to certain groups. Earlier, in 1969, the court overthrew the conviction of a KKK leader whose racist invective aired on television. His ravings didn't reach the point where they were likely to produce "imminent lawless action," in the court's view.

The court's inclination has rightly been toward allowing few exceptions to the First Amendment. Regardless of how the court decides this case, cross burning and similar expressions of hatred deserve the strongest public censure, and they can often be prosecuted under other laws that don't raise free-speech concerns.

The best protection against the threat such symbols imply is a citizenry united against their messages.