In a ruling with important symbolic implications, the Supreme Court has upheld the right of states to ban cross burning - marking a setback for many free-speech advocates but a victory for African-Americans.
The court, in a 5 to 4 decision, reaffirmed that the First Amendment's guarantee of free speech is not absolute when it comes to certain forms of expression.
By upholding a 51-year-old Virginia law that outlaws the burning of a cross on public or private property with the intent to intimidate, the court decreed that such an act amounted to a form of terror that could be regulated.
"While a burning cross does not inevitably convey a message of intimidation, often the cross burning intends that the recipients of the message fear for their lives," wrote Justice Sandra Day O'Connor for the majority. "And when a cross burning is used to intimidate, few if any messages are more powerful."
The decision is expected to reverberate across the country, affecting states that have passed cross-burning laws in recent years. In 1992, the Supreme Court struck down, 5 to 4, a Minnesota law banning cross burning.
Since then, state courts have struck down cross-burning laws in Maryland, South Carolina, and New Jersey. But similar laws have been upheld in Florida, Washington, and California.
Clarence Thomas, the only African-American on the Supreme Court, ruled with the minority, saying that the court didn't need to consider the First Amendment in this case, since cross-burning is clearly intimidation. Also in dissent were Justices Ruth Bader Ginsburg, David Souter, and Anthony Kennedy, one of the court's top advocates of free speech.
"I don't think any decent human being believes in cross burning," says John Whitehead of the Rutherford Institute in Charlottesville, Va., who had filed an amicus brief in support of the three men charged with cross-burning. "The question is, should the government be able to target a specific symbol and say you can't display that symbol or burn that symbol on private property with the intent to intimidate?"
Last year, the commonwealth of Virginia banned the burning of any object with the intent to intimidate, a law that Mr. Whitehead believes would pass constitutional muster.
In the past, the Supreme Court has sought to protect the free-speech rights of those holding unpopular points of view, such as the Ku Klux Klan, pornographers, and flag-burners. But in its ruling Monday, the majority made clear that some forms of speech were beyond the pale. To some court-watchers, this could signal the beginning of a trip down a slippery slope.
"I fear once you start down this road, you can easily wind up in a place where PC police rule the world - [such as] patriots coming back to flag-burning," says Paul Rosenzweig, a senior legal fellow at the Heritage Foundation. But, he adds, "I think this court will likely [limit] the decision very closely. Cross burning does have a very unique history and comes from a unique experience - slavery - that is not replicated in any other context."
In the case decided Monday, Virginia v. Black, a Ku Klux Klan leader and two other men were convicted and sentenced to jail or fined under the Virginia law.
Proponents of the ban lauded the ruling. "This is a great day for Virginia and America," says Tim Murtaugh, spokesman for the Virginia Attorney General's office, which defended the statute. "We have always felt and the court has now agreed that we do have the ability to ban cross burning with the intent to intimidate others."
"The site of a burning cross really is like no other," he added. "The message is clear. It's a threat of impending violence."
Many civil rights and civil liberties groups were caught in a difficult position on the law - one that limited free speech but protected minority rights. Some most noted civil rights and civil liberties advocacy groups, such as the NAACP legal defense, stayed out of the case.
The liberal People for the American Way supported the right to ban cross burning, while the American Civil Liberties Union said it was a form of protected speech.
"It's fair to say there was not unanimity amongst civil liberties organizations about the constitutionality of the statute," says J. Joshua Wheeler of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va.
• Staff writer Seth Stern contributed to this story. Material from wire reports was also used.