VIRGINIA ATTORNEY GENERAL Jerry W. Kilgore was quick to declare victory yesterday when the Supreme Court handed down its decision concerning the commonwealth's legal ban on cross burning. "A great day for Virginia," he called it -- which is strange, considering that the court actually threw out the law as the Virginia courts interpreted it and invalidated a conviction obtained under it. Mr. Kilgore was not alone in his confusion; news stories also declared that the court had upheld the ban. And, to be sure, the distinction the court has drawn is subtle. But it is also useful. For the court yesterday managed to uphold the authority of a state to ban a particularly ugly type of intimidation while insisting at the same time that laws doing so be drawn carefully so as not to criminalize speech. Its opinion, therefore, looks rather different from the victory Mr. Kilgore sought.
The Virginia law bans the burning of a cross "with the intent of intimidating any person or group of persons." Six justices rightly agreed -- albeit for different reasons -- that there is nothing constitutionally suspect about such a ban in principle. Expressive conduct performed with intent to intimidate someone is beyond constitutional protection; the First Amendment simply doesn't guarantee one's right to threaten someone. This is true even of apparently innocuous speech. And there is nothing innocuous about a burning cross, a symbol with more than a century of threatening meaning behind it. A state that chooses to isolate in its laws particularly egregious or threatening forms of intimidation is, the court rightly ruled, free to do so -- provided that the law obliges the prosecution to prove to a jury that the expression was intended as intimidation.
The trouble with Virginia's law is that this requirement is particularly weak. For while the law requires intimidating intent, it also specifies that "any such burning of a cross shall be prima facie evidence of an intent to intimidate." In other words, the act itself proves its own motive -- and the burden then falls on the defendant to demonstrate that he was burning a cross for reasons other than intimidation. As odious as cross burnings are, not all people who engage in them are seeking to threaten. As Justice Sandra Day O'Connor noted for an eclectic four-justice plurality, for example, the Virginia law would potentially subject to prosecution the makers of a film like "Mississippi Burning" -- and would force them to prove that they were not guilty of a key element of the offense. That's surely unconstitutional. So the statute must fall, at least in its current form. Not all speech is protected, but the burden on the state in banning any form of expression must be high.