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George: In reading the responses to Lloyd Snook's excellent summary of First Amendment jurisprudence as it pertains to cross burning, there appear to be a number of misperceptions about the Virginia law criminalizing cross burning that was recently declared unconstitutional by the Virginia Supreme Court. Misperceptions are to be expected in this case because it involves the degree to which the First Amendment protects threats -- an area of law that is confusing, contradictory, and far beyond my limited faculties to understand, much less explain. I do know, however, that the state court's decision does not mean we cannot pass laws that criminalize the act of some moron going on someone else's property and burning a cross without the property owner's permission. Nothing in the Court's opinion precludes legislators from addressing that kind of activity through trespass and arson statutes. Further, safety concerns are a constitutionally permissible reason for prohibiting burning anything (a cross included) in public places such as streets, sidewalks, parks, etc. The problem with the Virginia law was that it went far beyond those circumstances. The Virginia Supreme Court decision correctly states that the First Amendment prohibits the government from singling out for punishment those individuals who express a viewpoint disapproved of by the government. By specifically criminalizing cross burning -- an act indelibly associated with the KKK -- the state was clearly targeting a specific viewpoint. As the U.S Supreme Court said in the case of RAV v. St. Paul, ""Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But [the state] has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire." Josh Wheeler (electronic mail, November 12, 2001)
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