WASHINGTON — Supreme Court Justice Clarence Thomas, who sits silently during most arguments, spoke up Wednesday to condemn cross burning as the "symbol of a reign of terror" that does not deserve the 1st Amendment's protection for free expression.
For nearly 100 years, the Ku Klux Klan used cross burning and lynchings to terrorize blacks and Jews throughout the South, he said.
A burning cross is "unlike any symbol in our society.... There was no communication of a particular message. It was intended to cause fear and to terrorize the population," said Thomas, the only black justice.
His comments came midway through the oral argument in a Virginia cross-burning case and seemed to turn the tide against the free-speech claim.
Ten years ago, the high court unanimously struck down a St. Paul, Minn., ordinance banning cross burning, ruling that this form of symbolic expression, like flag burning, is protected by the 1st Amendment.
But prosecutors in Virginia, California and half a dozen other states continue to enforce laws against burning crosses, saying they are punishing threats and intimidation, not speech. Similar laws also forbid the display of a Nazi swastika; those measures also depend on the outcome in the Virginia case.
"Cross burning is a tool of intimidation. The message is a threat of bodily harm," Virginia Solicitor Gen. William H. Hurd told the justices.
He was defending two prosecutions in 1998, one involving a Klan rally and the other involving a small cross burned outside the home of a black family in Virginia Beach.
Klansman Barry Black led a cross-burning rally in a farm field. The 30-foot cross, blazing near a state highway, could be seen by passing motorists.
Black was arrested and fined $2,500. In the Virginia Beach case, two men were also fined $2,500 and given 90 days in jail.
But when they appealed, the state Supreme Court overturned the convictions and struck down the cross-burning law last year. "Under our system of government, people have a right to use symbols to communicate," even if their message is one of contempt for America or an "expression of bigotry," the judges said.
Professor Rodney Smolla, a 1st Amendment expert at the University of Richmond law school, defended the state court ruling and urged the justices to uphold the principle that even obnoxious and loathsome expressions are protected by the 1st Amendment.
