George:

I agree with the Virginia Supreme Court that the Virginia cross-burning statute, under U. S. Supreme Court controlling precedent, is unconstitutional. I have read the opinion, and I am persuaded that the Virginia Supreme Court decided the case correctly under governing caselaw. Your readers might judge for themselves by going to this web address: http://www.courts.state.va.us/txtops/1010123.txt

We have long held that odious speech is nonetheless protected speech. Just in the last 25 years, the U. S. Supreme Court has held that it the Nazi Party has a right to march in the streets, including in the streets of heavily Jewish Skokie, Illinois. Skokie had argued that they had a particular right to ban the Nazi march because many concentration camp survivors lived in Skokie, and that the Nazis having killed their families, the survivors would feel intimidated by the march. The Supreme Court said that the proper response is to post guards and police officers, not to say that they can't march.

Any just to be clear -- the term "speech," in constitutional terms, refers to expressive conduct. Flicking someone "the bird" is expressive conduct, and is protected even though it doesn't require to words to pass anyone's lips.

In 1989, the U. S. Supreme Court held that government cannot ban burning the flag. Such an act is likely to elicit an angry response from friends of the flag, but that cannot mean that the flag can't be burned.

In 1992, the U. S. Supreme Court invalidated a Minnesota law that said that anyone who "places on public or private property a symbol, object, [etc.], including ... a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race... commits disorderly conduct."

Virginia's law was similar; it provided:

"It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

"Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

Frankly, I see no real basis to draw a line between Virginia's law and Minnesota's law.

The Virginia Supreme Court's conclusion hardly counts as an endorsement of cross-burning:

"Under our system of government, people have the right to use symbols to communicate. They may patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry. Neutrally expressed statutes prohibiting vandalism, assault, and trespass may have vitality for the prosecution of particularly offensive conduct. While reasonable prohibitions upon time, place, and manner of speech, and statutes of neutral application may be enforced, government may not regulate speech based on hostility - or favoritism - towards the underlying message expressed."

This is one of the most confusing and most debated areas of First Amendment law, and we can only truly say that the answer is clear if the U. S. Supreme Court has spoken directly on the matter. And it is preferable if they have spoken on the matter recently. Nonetheless, let me hazard a few guidelines as to what words or actions may be punishable.

1. The law remains that if you go onto someone's property to burn a cross against the will of the property owner, it is still trespass. If you burn a cross on your own lawn, even as supposedly "intimidation" of someone else, that is not trespass. It may violate burning ordinances, but not because of the nature of what has been burned or the message attempted to be conveyed.

2. I have a constitutional right to say obnoxious things (which some would say I exercise too freely). I have a constitutional right to be rude and offensive. I have a constitutional right to be generally intimidating and threatening.

3. There are statutes that have generally been upheld on constitutional grounds that punish sending threatening mail or making threatening phone calls, though frankly, I am not sure how those rulings might be squared with either the U. S. Supreme Court's cases on flag-burning and cross-burning, or with the Virginia case decided a few weeks ago. For example, Virginia has a statute that has been upheld in the Virginia courts that makes it a crime to use "obscene, vulgar, profane, lewd, lascivious or indecent language ... or threaten any illegal or immoral act with the intent to coerce, intimidate or harass any person over any telephone ..." Certainly, a statute could punish placing an obscene phone call, or making a threatening call, on the theory that it is in essence an electronic trespass. But would that logic apply to answering a telephone call, and getting mad at the caller and cussing him out? Trial courts have generally said that it doesn't matter who placed the call, but maybe it should.

4. I may not directly threaten someone with imminent bodily harm, because such a threat would likely cause that person to fight back -- to provoke a breach of the peace.

5. Nor may I speak "fighting words" to someone -- words that would cause the ordinary person to respond by provoking a breach of the peace. Our local judges generally take the position that calling someone a "N-----" or a "m-----f-----" is a crime. But the reason is NOT that such words are rude or impolite. The Virginia Court of Appeals has held, for example, that if I tell someone to "Go f--- yourself," when I am 55 feet away from the person to whom the comment is directed and there is a chain link fence in the way, I have not violated this statute.

6. If I write the same thing on a sign and post it on my own property or with the consent of the owner of some other property, that does not violate the statute. If the legislature wrote a statute to punish posting a threatening or obscene sign, would that be unconstitutional? I think the decisions of the past 12 years would suggest that the Supreme Court would say that such a statute is unconstitutional, but that would be a very difficult case.

7. The legislature can make it a crime to utter a threat that is accompanied by the beginning of an attempt to carry out the threat. For example, I could tell someone that I hated them, and I wished they were dead. That would not be a crime. But if I said the same thing while pulling out a gun, that may be a crime.

8. If an act is otherwise criminal, it is permissible for a legislature to provide for enhanced punishment based on the intent of the actor. If I hit someone in the nose that is assault and battery. If I hit someone in the nose because he or she is black and I am motivated by hate, the legislature can provide for a mandatory minimum sentence that would not be applicable if I just hit someone without a racist intent.

9. But if I do something that is perfectly legal, no matter that it may be offensive, that act does not become a crime just because I do it out of racism.

Confusing? Yes. Unclear? You betcha.

Stay tuned.

Lloyd Snook (electronic mail, November 12, 2001).