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Is Cross-Burning Constitutionally Protected Speech, Or Racial Intimidation and Hatred?

December 17, 2002

Last Wednesday, Republican Senate leader Trent Lott for the second time tried to distance himself from his remarks at Strom Thurmond’s birthday party, when he said the country would be better off if Thurmond had won the presidency on his Dixiecrat, Segregation Forever platform.

That same day, the Supreme Court held a hearing on whether states can ban cross burning.

Justice Clarence Thomas, who rarely utters a word in court, passionately denounced cross-burnings. He said: "the cross was the symbol of this reign of terror" for more than a century. There was no other purpose for the cross. It was intended to cause fear and terror." He said, "It is unlike any symbol in our society."

At issue is a 1952 Virginia law that makes it a crime to burn a cross or intimidate someone. Three white men in two separate cases were convicted of the offense in 1998.

In one case in August 1998, some twenty people gathered on private land for a rally that concluded with Ku Klux Klan members setting on fire a 30-foot cross made of metal and covered in cloth. The leader of that group was Barry Elton Black, the leader of a Pennsylvania branch of the Ku Klux Klan, who preaches racial separatism and doesn’t invite people of color into his home.

In another case, two Virginia men, Richard Elliott and Jonathan O’Mara, burnt a cross on the lawn of an African American neighbor.

All three men were convicted, but last year the Virginia Supreme Court ruled that the state law was unconstitutional and reversed the convictions.

Virginia prosecutors took the matter to the US Supreme Court.

Today, we’re going to have a debate about whether cross burning should be Constitutionally protected as free speech.


  • John Powell, founder of the Institute on Race & Poverty at the University of Minnesota Law School.
  • Rodney Smolla, Law Professor at the University of Richmond, Law School. He represented the three white Virginia men convicted of cross-burning in 1998. Smolla argued that while a burning cross may be "horrible, evil and disgusting," it’s no different from flag burning in that it constitutes constitutionally protected "free expression."

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