The court was asked to consider a 50-year-old Virginia law making it a crime to burn a cross as an act of intimidation. Several lower courts ruled the law muzzled free speech, a position the Supreme Court overruled by a 6-3 plurality. Writing for the court, Justice Sandra Day O'Connor explained, "A burning cross is an instrument of terror, and government should have the power to stamp out or punish its use."
How was it this 50-year-old law was suddenly an issue?
In 1998 three men attempted to burn a cross on the yard of James Jubilee, a black resident of Virginia Beach, Va. Driving a truck onto his property, they planted and set ablaze a cross just 20 feet from his home. They wanted to "get back" at Jubilee for complaining about one of the men's use of his backyard for handgun practice in the neighborhood. The next morning, as Jubilee pulled out of his driveway, he noticed the partially burned cross.
Rather than admit to being malicious hate-mongers, the cross burners decided instead to assert that their action was protected speech under the First Amendment They even claimed the Virginia statute was an unconstitutional infringement on their free speech.
Notwithstanding Aristotle's admonition that "It is the mark of an educated mind to be able to entertain a thought without accepting it," justices David Souter, Ruth Bader Ginsburg and Anthony Kennedy bought the argument hook, line and sinker.
Fortunately the other six justices on the Supreme Court were not persuaded, though they are divided on the reason why the defendants' argument should be rejected.
The Ku Klux Klan was first started in the spring of 1866 in Tennessee. In that iteration, Klansmen actively opposed the U.S. government's effort at reconstruction -- especially but not exclusively those promises embodied in Lincoln's Emancipation Proclamation.
When efforts at moral suasion failed, the Klan introduced whipping, lynching, burning at the stake and murder. Victims of Klan violence included blacks, southern whites who resisted their efforts at intimidation and Republicans from the north, called "carpetbaggers" in reference to their luggage.
After his election in 1868, Republican President U.S. Grant asked the Republican-controlled Congress to enact the Ku Klux Klan Act, which made what had been crimes and misdemeanors under state laws that were not being enforced into federal crimes.
Ultimately, Grant was forced to send federal troops to restore law and order in areas where the violence was worst. Using authority derived from the act, Grant went so far as to declare martial law in nine South Carolina counties.
Republican Amos Ackerman, the U.S. attorney general, successfully prosecuted a few hundred Klansmen using predominantly black juries. Thousands of others fled. The insurrection was squelched by the end of 1877. The Ku Klux Klan had effectively ceased to exist.
The dawn of a new century brought with it a rebirth of the Klan, one that was more virulent and dangerous than what had preceded it.
"Birth of a Nation," the World War I era landmark motion picture created by D.W. Griffith, graphically revealed just how intricately cross-burning and the new Klan were intertwined.
The new Klan, and later iterations of it, used cross burning to threaten and to promote a separatist ideology. It was just one such cross burning in Suffolk, Va., that outraged Miles Godwin Jr., a member of the Virginia House of Delegates who would go on to serve as only the second Republican to be elected governor of the commonwealth after reconstruction.
Godwin intoned that that "law and order in the state were impossible if organized groups could create fear by intimidation." He introduced a bill in the Legislature to "ban the burning of crosses and other similar evidences of terrorism," a version of which the Supreme Court upheld in Virginia vs. Black.
Cross burning is no longer the problem in America it once was. While true that one is too many, the sordid history of this odious practice makes it clear that, by themselves, decency and goodwill are insufficient to keep evil at bay.
As another philosopher, George Santayana, observed, "Those who cannot remember the past are condemned to repeat it." The passage and enforcement of laws banning cross burning is not the result of the excesses of today's modern political correctness movement. As Justice Clarence Thomas, the court's lone black member, wrote in a separate opinion upholding the ban, "Cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence."
"Just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point," Thomas wrote.
To pretend that this isn't true, as some First Amendment advocates might argue, is to ignore history and to invite wickedness to return.
-- Horace Cooper is a senior fellow with the Center for New Black Leadership
-- "Outside View" commentaries are written for UPI by outside writers on issues of public interest.
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