NCPA - National Center for Policy Analysis

Supreme Court Rules in Favor of Free Speech

April 10, 2003

An April 9, 2003, Supreme Court decision reaffirmed that cross burning, while hateful, is a constitutionally protected form of free speech -- except in cases where it is clearly intended to intimidate others.

The high court also provided useful guidance for judging the constitutionality of odious acts, making an important distinction between those that are threatening and those that are merely offensive.

  • The court overturned the conviction of a Pennsylvania man who torched a 30-foot cross at a sparsely attended Ku Klux Klan rally in a Virginia field five years ago -- he had not been charged with seeking to intimidate anyone, but with violating a Virginia statue that outlawed cross burning.
  • However, two young white men who put a burning cross in the yard of a black neighbor could be prosecuted, the court said.
  • The difference: The first incident constituted offensive but free expression; the second was clearly menacing behavior.

Observers say that the way to deal with hateful bigots who burn crosses is by punishing criminal behavior rather than criminalizing their free speech.

Source: Editorial, "Court makes fine distinction," April 10, 2003, USA Today.

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