John Whitehead's Commentary
Banning Cross Burning: Just Another Step in the Slippery Slope to Tyranny
At the height of the McCarthy era, when anti-Communist phobia was at its peak and people's lives were destroyed at will, distrust and paranoia ruled the day. Much of the paranoia was aimed at our freedoms of speech and association.
And now, as our society marches toward mass conformity in a way no one would have imagined several decades ago, Americans do not seem to be enlightened about the censorship that plagues our current society. Political correctness has gotten so out-of-hand that children are being expelled from school simply for using their fingers as pistols in make-believe games of cops and robbers.
In our post-Sept. 11 world, the need for personal security and the so-called freedom from fear is growing so strong that it seems our most precious and sacred freedoms are at risk. We are facing a lock-down mentality that threatens to overwhelm our society and force alternative viewpoints underground.
Thus, it is appropriate that the U.S. Supreme Court has decided to hear the case of Barry Black, Imperial Wizard of the Keystone Knights for the Ku Klux Klan, who was convicted under a 50-year-old Virginia law for burning a 30-foot cross on private property during a Klan rally in Virginia. The law was intended to discourage cross burnings by Klansmen, acts often associated with ensuing violence and hatred against African Americans, particularly during the civil rights era.
Black, as certain of his bigoted opinions as he was of his constitutional right to free speech, turned to the American Civil Liberties Union for help. To reinforce the point that it's the principle--not the person--that needs defending, the ACLU assigned an African American attorney to challenge the cross-burning statute and defend the Klansman's right to freely express himself.
Last year, the Virginia Supreme Court declared the statute, which renders any burning of a cross evidence "of an intent to intimidate a person" and worthy of criminal prosecution, unconstitutional. As the court noted, while laws of neutral application can be enforced, "government may not regulate speech based on hostility--or favoritism."
Nevertheless, those supporting the law (such as Virginia Attorney General Jerry Kilgore, who equated cross burning with "acts of terrorism") argue that Americans have a right to freedom of speech, as well as freedom from fear. But the "freedom from fear" concept takes us into murky waters, leaving government officials to make subjective determinations as to what kinds of expression might induce fear. And while the lawmakers who drafted cross-burning laws were obviously trying to right a serious wrong, they lost sight of the bigger picture--and the document that protects all forms of expression, the U.S. Constitution.
Not surprisingly, state courts have exhibited a great deal of confusion in distinguishing political speech from speech engendering physical violence, resulting in some states striking down cross-burning laws, while others have upheld them. In an effort to determine the constitutionality of the statute, the State of Virginia has appealed this case to the U.S. Supreme Court.
Now the Supreme Court must decide once and for all whether cross burning laws violate the First Amendment free speech rights of groups such as the KKK. But the issue is much broader than whether a handful of hate groups can torch a cross as a sign of their intolerance. The debate is really about the state of our freedoms in a post-Sept. 11 world--and how willing Americans are to relinquish certain freedoms in the so-called name of greater safety.
Unfortunately for those who value a democratic nation, too many Americans are now more than willing to sacrifice a little liberty for security, as is evidenced by public support for national ID cards and monitoring devices. Yet if government officials are allowed to determine that burning a cross is a form of intimidation, what's to stop them from deciding that any other form of expression--harmless or not--is hate speech? It becomes a slippery slope when we start giving up our freedoms.
The genius of the First Amendment is that it was intended to keep debate public and open. Thus, it allows for the release of hostilities in a free speech forum without resorting to violence. When alternative viewpoints are silenced and driven underground, it only makes them stronger. But a free flow of ideas keeps the democratic process working.
The struggle over the First Amendment is crystallized in this particular debate: whether individuals such as Black have a right to express their opinions, even when those opinions are hateful, unpopular and steeped in the bigotry of racism. After all, the key to our democracy is the right to protest--even if it means burning a cross at a KKK rally.
James Madison once remarked that the First Amendment was intended to protect the "minority against the majority." By the minority, Madison meant the outcasts, those with alternative viewpoints, the dissenters. The right to freely express our views has long been a cherished part of our democratic society. Our First Amendment was created with these types of rebellious agitators in mind. And it was due to some of our nation's greatest radicals and dissenters--Patrick Henry, George Mason and Thomas Jefferson--that we even have a Bill of Rights.
The Constitution does not discriminate on the basis of content, and neither should our laws or the courts. As noted abolitionist Frederick Douglass wrote in 1860, "To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money."
Simply put, we don't have to approve of what people like Black say--we just have to be willing to protect their right to say it, freely and without retribution.
And now, as our society marches toward mass conformity in a way no one would have imagined several decades ago, Americans do not seem to be enlightened about the censorship that plagues our current society. Political correctness has gotten so out-of-hand that children are being expelled from school simply for using their fingers as pistols in make-believe games of cops and robbers.
In our post-Sept. 11 world, the need for personal security and the so-called freedom from fear is growing so strong that it seems our most precious and sacred freedoms are at risk. We are facing a lock-down mentality that threatens to overwhelm our society and force alternative viewpoints underground.
Thus, it is appropriate that the U.S. Supreme Court has decided to hear the case of Barry Black, Imperial Wizard of the Keystone Knights for the Ku Klux Klan, who was convicted under a 50-year-old Virginia law for burning a 30-foot cross on private property during a Klan rally in Virginia. The law was intended to discourage cross burnings by Klansmen, acts often associated with ensuing violence and hatred against African Americans, particularly during the civil rights era.
Black, as certain of his bigoted opinions as he was of his constitutional right to free speech, turned to the American Civil Liberties Union for help. To reinforce the point that it's the principle--not the person--that needs defending, the ACLU assigned an African American attorney to challenge the cross-burning statute and defend the Klansman's right to freely express himself.
Last year, the Virginia Supreme Court declared the statute, which renders any burning of a cross evidence "of an intent to intimidate a person" and worthy of criminal prosecution, unconstitutional. As the court noted, while laws of neutral application can be enforced, "government may not regulate speech based on hostility--or favoritism."
Nevertheless, those supporting the law (such as Virginia Attorney General Jerry Kilgore, who equated cross burning with "acts of terrorism") argue that Americans have a right to freedom of speech, as well as freedom from fear. But the "freedom from fear" concept takes us into murky waters, leaving government officials to make subjective determinations as to what kinds of expression might induce fear. And while the lawmakers who drafted cross-burning laws were obviously trying to right a serious wrong, they lost sight of the bigger picture--and the document that protects all forms of expression, the U.S. Constitution.
Not surprisingly, state courts have exhibited a great deal of confusion in distinguishing political speech from speech engendering physical violence, resulting in some states striking down cross-burning laws, while others have upheld them. In an effort to determine the constitutionality of the statute, the State of Virginia has appealed this case to the U.S. Supreme Court.
Now the Supreme Court must decide once and for all whether cross burning laws violate the First Amendment free speech rights of groups such as the KKK. But the issue is much broader than whether a handful of hate groups can torch a cross as a sign of their intolerance. The debate is really about the state of our freedoms in a post-Sept. 11 world--and how willing Americans are to relinquish certain freedoms in the so-called name of greater safety.
Unfortunately for those who value a democratic nation, too many Americans are now more than willing to sacrifice a little liberty for security, as is evidenced by public support for national ID cards and monitoring devices. Yet if government officials are allowed to determine that burning a cross is a form of intimidation, what's to stop them from deciding that any other form of expression--harmless or not--is hate speech? It becomes a slippery slope when we start giving up our freedoms.
The genius of the First Amendment is that it was intended to keep debate public and open. Thus, it allows for the release of hostilities in a free speech forum without resorting to violence. When alternative viewpoints are silenced and driven underground, it only makes them stronger. But a free flow of ideas keeps the democratic process working.
The struggle over the First Amendment is crystallized in this particular debate: whether individuals such as Black have a right to express their opinions, even when those opinions are hateful, unpopular and steeped in the bigotry of racism. After all, the key to our democracy is the right to protest--even if it means burning a cross at a KKK rally.
James Madison once remarked that the First Amendment was intended to protect the "minority against the majority." By the minority, Madison meant the outcasts, those with alternative viewpoints, the dissenters. The right to freely express our views has long been a cherished part of our democratic society. Our First Amendment was created with these types of rebellious agitators in mind. And it was due to some of our nation's greatest radicals and dissenters--Patrick Henry, George Mason and Thomas Jefferson--that we even have a Bill of Rights.
The Constitution does not discriminate on the basis of content, and neither should our laws or the courts. As noted abolitionist Frederick Douglass wrote in 1860, "To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. It is just as criminal to rob a man of his right to speak and hear as it would be to rob him of his money."
Simply put, we don't have to approve of what people like Black say--we just have to be willing to protect their right to say it, freely and without retribution.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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