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Supreme Court: Cross Burning Not Free Speech - 2003-04-08

The Supreme Court has ruled that burning a cross, a symbolic act associated with U.S. white supremacist groups, is not covered by the right to free speech. By a 6-3 majority, the Supreme Court upheld a Virginia state ban on cross burning, a half-century-old law meant to stop a practice widely seen as an act of racial hate.

The burning of wooden crosses is closely associated with the Klu Klux Klan, a white supremacist group founded at the end of the Civil War. Cases of Klan members burning crosses on the property of African-Americans or other minorities have a long history, and served as the target of the Virginia ban.

The court had previously decided similar cases in favor of protecting First Amendment rights to free speech. In an earlier decision, it struck down a broader law in Saint Paul, Minnesota, prohibiting the placing of any symbol of racial or religious bias on another's property.

But in the case of the Virginia cross-burning ban, the justices say the state does have the right to brand such acts as criminal.

Kent Scheidegger of the California-based Criminal Justice Legal Foundation, whose group filed a friend-of-the-court brief in favor of the ban, says the real decision involved whether cross-burning can be seen as a threat. "It's significant in that it clarified an area of First Amendment law that hasn't gotten a lot of attention," he says. "And that is the fact that threats are an area of speech that are outside the protection of the First Amendment."

Justice Sandra Day O'Conner delivered the majority opinion, writing that the burning cross is indeed an instrument of terror and that First Amendment rights are not absolute in such cases.