WASHINGTON — Cross burners who try to frighten or intimidate others can be prosecuted as criminals and are not protected by the Constitution's shield for free expression, the Supreme Court ruled Monday.
However, a Ku Klux Klan rally that features a cross-burning in an open field cannot be punished simply because of its hateful message, the justices said.
The ruling invalidates laws like those in Virginia, which criminalize all cross-burnings. But by a 6-3 margin the court upheld hate-crime laws in California and other states that target those who burn a cross or display a Nazi swastika on private property to "terrorize" residents.
Under these measures, skinheads and thugs who burn a cross in the yard of a black family can be prosecuted for a hate crime. But the same people cannot be prosecuted if they burn a cross in their own yard.
In issuing Monday's ruling, the justices split three ways. Five of them, led by Justice Sandra Day O'Connor, would uphold cross-burning as a crime only when it was done "with the intent to intimidate." Justice Clarence Thomas, though he voted with the majority, said in his concurring opinion that he would have upheld laws against cross-burning in all cases.
Three others, taking the free-speech view, would strike down cross-burning laws because they single out a symbol due to its message. The three were Justices David H. Souter, Anthony M. Kennedy and Ruth Bader Ginsburg.
The court's opinion limits the scope of the 1st Amendment in cases of "symbolic expression."
Between 1989 and 1992, the court struck down a series of laws against flag-burning or cross-burning. It said the government could not punish people who use a symbol to convey a loathsome or hateful message.
In Monday's opinion, the court backtracked somewhat. The move was foreshadowed by an oral argument in December, when Thomas denounced cross-burning as a "symbol of a reign of terror," not an act of free speech.
Writing for the court on Monday, O'Connor said the violent history of the Ku Klux Klan and its use of a flaming cross justify special punishment as a hate crime and that those who commit such crimes are not protected under the Constitution.
"Threats of violence are outside the 1st Amendment," O'Connor stressed. "The burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm.... In light of cross-burning's long and pernicious history as a signal of impending violence ... Virginia may choose to regulate [these] intimidating messages."
