The Supreme Court decided this week that states can treat cross burning as a symbolic act not protected as free speech when it is intended to intimidate others.
The decision partially upholds a Virginia law banning cross burning and represents a victory for African-Americans, who historically have been recipients of the racial violence that often followed cross-burnings, usually by the Ku Klux Klan.
In its 5-to-4 ruling, the court struck a balance between the act of burning a cross with criminal intent and the act as another form of political expression, albeit heinous, and thus protected under the First Amendment. Cross burning, for instance, could still legally occur at a KKK rally if not directed at specific persons.
The court said the Virginia law, which assumed that all cross burnings involved intimidation, went too far. Justice Sandra Day O'Connor, writing for the majority, said that would "create an unacceptable risk of the suppression of ideas."
Still, the majority seemed to regard cross burning, with its own unique history, as something more serious than hate speech or pornography, which the courts have upheld as protected by the Constitution.
The court could be opening new legal ground by advising prosecutors to consider the "contextual factors" when trying to prove whether a defendant's symbolic acts were intended to intimidate.
States now must be cautious not to criminalize all symbolic acts that just may appear threatening. Placing a burning cross on someone's lawn has a long, clear history of intimidation with potentially dire consequences. The court was right to support a ban on such an action.