Ordering of Remaining Constitutional Principles
And Appended Commentary
Freedom of Speech: Statute from Virginia before the Present Court
Freedom of speech: previous precedents reaffirm the basic absolute quality of this right, attached as it is to the principle of national sovereignty acknowledging that ultimate power resides with the people themselves; they have it and they alone have the final say regarding the future direction of America as a democratic and justice-loving country. The Court acknowledges this most fundamental bedrock principle, that none of its following remarks may be taken amiss or misinterpreted as reflecting light or careless decision-making.
Nothing further from the truth: fundamental principles deserve the utmost protection from all, jurist and citizen alike. The Court will not entertain as a viable option any proposed limitation on freedom of speech, save that demonstrated to meet the most stringent standards for an “exception to the rule” based on clear constitutional principle.
In agreeing to hear the case, the Court acknowledges that the issue of the burning of the cross, in the context of freedom of speech, immediately presents certain challenges and difficulties, due in part to the nature of American history itself, especially as regards the period of Slavery, and the horrors thereunto appended, including the continuation of terrorism against African-Americans by mask-wearing, sheet-wearing, hood-wearing (disguise-wearing) murderers who perpetrated their most foul deeds by the coward’s love of the night and who spread mayhem and terror among frightened men, women, and children–often by the light of the burning cross.
The Klan’s cross-burning in association with violence and crime of this nature is too well documented over the years to become the object of dispute here.
Furthermore, the burning of the cross is an inexcusable hate crime against African-Americans and an insult to all Christians for it is an inexcusable desecration of one of their most holy and venerated symbols, the Cross upon which Christ was crucified by Roman soldiers.
Imagine terrified African-American men, women, and children, many of them deeply committed Christians themselves in every sense of the word, having the holy cross set afire in front of their homes, as dire lethal warning that the Ku Klux Klan was all-powerful and could and would commit violent acts of murder and mayhem with impunity against free-born Black American citizens seeking to exercise their constitutional rights!
Burning the Cross, historically, does not dredge up merely some minor memories of “intimidation” or a law class hypothetical situation, not when we are dealing with what the Klan actually did to terrorize African-American people.
Indeed, this cross-burning by the KKK represents the apogee of their brutal savagery against black people; many Negroes were hung in the night under the cover of darkness: the mangled body to be found swinging in the trees the next morning by surprised, shocked, and angry neighbors, perhaps a friend or close relative of the deceased; that is part of the constant threat of violence in the South. An increase in the frequency of cross-burnings served as an incitement to riot, an invitation to the mob-prone racists to grab their guns, knives, and ropes and murder Negroes en masse.
The Cross-Burning also carried with it intimidation of a very specific order: the ultimate terrifying, systematic and racist oppression of Black people on a scale that can hardly be imagined. In this sense, the burning-of-the-cross represented a pre-cursor to Hitler’s swastika fanaticism and genocidal mania, a comparison that can only begin to mark the depth of popular shock, horror, and repugnance aroused by the threatening violence promised with each and every cross-burning.
Could there be any other kind of intent than savage violence? To reduce this issue to a legalistic quibble is an insult to the pain and suffering of millions of Americans and their descendants; the Virginia statute is therefore upheld as Constitutional, with the above objections, appendages, and minority reports yet to come, duly noted.
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Other precedents that may be cited in defense of the principle that social contexts rightly influence limitations on the right of freedom of speech, are exceptions very limited in scope and do not cast doubt on the validity of the underlying principle itself: that freedom of speech in America should have as few limitations as possible to allow the free exercise of thought and speech across any and all topics imaginable by the minds of men and women. We put no arbitrary or bureaucratic straitjacket on this principle, let it be plainly stated.
However, the limiting doctrine of a clear and present danger, for instance, was not considered a minor matter by previous Courts; the doctrine was carefully considered from every angle before approval and explanation were given to the public, both lay and scholar. When speech crosses the threshold of from expressing opinion to actively encouraging or inciting violence or other criminal behavior, one sees that the hard shell around this cherished “freedom of speech” principle cannot always be conceived as absolute and impervious to limitation.
Does the burning of the cross represent a threat of intimidation to others? Asked another way, are there American citizens who feel threatened or intimated by the burning of the cross? Find it so, and every other issue resolves itself accordingly. One can uphold the constitutionality of a statute to outlaw the burning of the cross with the intent to intimidate, yes; and one day, a stronger statute may become tolerable to even this august body of jurists. The decision is affirmed and upheld in favor of the State of Virginia and its statute as constitutional, just, and wise.
APPENDAGE A: PURPOSE OF CROSS-BURNING
Advice to law students and interested public:
The burning of the cross carries with it the threat of violence in any and all contexts. However, if the Court chooses to ignore actual history in favor of a lukewarm lineage of precedent-setting cases alone, then be advised to discuss whether the current Rehnquist Court chooses to accept or reject the original 1896 Ferguson v. Plessy ruling in which segregation was upheld and separate but equal was found to be constitutional.
Be wise, ye modern gentlemen of the Court, lest you underestimate the democratic instincts of the American people themselves. They see chicanery elsewhere in the federal and state systems and cannot but wonder how far the protected inequalities and inequities can travel up the ladder? Has it reached the highest court? Are their decisions the fairest ones possible based on the Constitution alone, and not yet to be decried as weak-kneed apologia subject to influence from outside partisan interests?
Additional Commentary
The Black Man was dragged out of his cabin for the purposes of foul play by the white-hooded night riders and as a warning to all the neighbors; by the light of the Cross set ablaze by Ku Klux Klan night riders, they would burn a man alive or hang him by the neck until he strangled, often mutilating and torturing and terrifying the victim first.
Many of these perpetrators were never brought to justice, nor has the dishonor they inflicted on the entire nation ever been expunged entirely. This “Cross Aflame” in American History has a terrifying stigma attached to it, emblazoned there by a long, heinous list of crimes too horrible to repeat!
A burning cross held highest rank among all the many detested racist practices; a burning cross is abhorred by all people of good conscience and faith and believers in the American Constitution, the bedrock document which you gentlemen are pledged to use as your fundamental guide in deciding all cases meriting the attention of America’s highest court.
But is there not a world out here as well? Are not there American citizens for whom the burning cross meant the onset of terror to a degree unimaginable by those who never received such a threat or witnessed the bloody aftermath? Is there any Justice whose family, past or present, ever suffered such an outrage? But history teaches us much where personal experience is insufficient; are there no Justices who have studied American History? These brutal episodes demand we correct the shame!!
The Statute of Virginia could be stronger, not weaker, in my opinion, but for all that I remain needful of addressing primarily the specific issue before the Court: namely, legal validity of this new statute that makes the burning of the cross in Virginia with intent to intimidate (as a specific intention incorporated in the language of the bill) as a crime open to prosecution.
The court must decide whether said statute is constitutional in total or in part, or must be declared unconstitutional.
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The Statute is divided into two parts: both parts of the statute meet constitutional standards, in my opinion, but were one ruled constitutional and the other not, it is nevertheless the superior principle that would be upheld while the dependent corollary may safely and in isolation be struck down; in such a legal context, a sub-clause can be ruled unconstitutional without invalidating the main clause, etc.
The question remaining is that of precedent and the need to distinguish between cross burning (without intent to intimidate), as lawful, in contradistinction to cross-burning with intent to intimidate, which is not under challenge.
The original principle is freedom of speech; the question arose: does freedom of speech include the right to burn the cross (as political symbol) which the Court affirmed; wherefore a further question arose: is a statute aimed at prohibiting the burning the cross when such action carries with it the overt threat of intimidation, a lawful statute? Two principles deserve special comment:
- The Virginia statute upholds the right of the state government to prosecute, in the public interest, perpetrators of cross-burning with intent to intimidate. This principle is clearly constitutional in spirit and all that remains is the need to check the actual wording to ensure that no one’s rights are unintentionally diminished in the legal zeal to prevent racist violence by giving aid and relief to both actual and potential victims.
- Should a statute distinguishing two levels of intent in such a law and for such purposes be upheld as constitutional? That is to say: is it lawful to hold that the “intent to intimidate” makes cross-burning a criminal action and no longer protected free speech?
The Court answers in the affirmative and upholds the statute’s provision. In such instances, therefore, “cross-burning” loses its special protection under freedom of speech once the specific “intent” clause of the Virginia Statute has been invoked: be it so.
The state of Virginia, may apply its new law with this court’s stamp of approval upon it.
One Justice’s Opinion, 2002 (December 25)
Merry Christmas, one and all!
Judge “American Citizen”
