Crosses were burned not only at lynchings but also more generally to terrorize African Americans, Roman Catholics, Jews, and others hated by the Klan. As the Klan declined in the late 1920s and 1930s, intimidation became the primary but not exclusive use of the cross.
During the civil rights era beginning in the 1950s, white supremacists burned crosses to express opposition to desegregated schools, to frighten civil rights workers, and to show support in 1960 for the Republican presidential candidate, Richard M. Nixon (who declined the support). In addition, people with no Klan affiliation have burned crosses on the lawns of African Americans moving into all white neighborhoods.
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States begin to ban cross burnings, leading to Supreme Court cases
Since the 1950s, a number of states, including Virginia, have passed laws banning cross burnings. The constitutionality of these laws did not reach the Supreme Court until the early 1990s, and then, in slightly more than a decade, the Court issued two seminal rulings on the subject. These decisions, R.A.V. v. St.Paul (1992) and Virginia v. Black (2003), addressed the constitutionality of laws banning cross burnings and gave the Court a chance to discuss the role of the practice in U.S. history.
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In R.A.V., Justice Antonin Scalia held for a majority of the Court that the Bias-Motivated Crime Ordinance of St. Paul, Minnesota, was unconstitutional because it targeted the display of symbols that inspired hatred based on “race, color, creed, religion or gender” but did not take other characteristics into consideration.
Thus, Scalia argued, the statute was viewpoint discriminatory as it allowed one side of a debate to fight “freestyle” while the other had to rely on stricter “Marquis of Queensbury rules.” Although Scalia deplored cross burning, he did not discuss its historical context in his opinion.
In Virginia v. Black, the Court held that states could ban cross burning undertaken with the intent to intimidate. In the opinion for the Court, Justice Sandra Day O’Connor provided ample historical background.
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She wrote several pages outlining the role of cross burning in terrorizing African Americans and other opponents of the Klan. She used historical evidence to support the ruling that a provision in the Virginia law was unconstitutional in allowing a jury to infer intent to intimate solely from the cross burning itself. This evidence led her to conclude that crosses were sometimes burned for expressive.
Dissenting in the case, Justice Clarence Thomas faulted O’Connor’s conclusion that a cross could have expressive meaning. Relying on a variety of evidence, including testimony from a victim of cross burning and newspaper articles from 1952, when Virginia passed its law, Thomas held that intimidation was the only meaning cross burning could have in the United States.
After R.A.V., several state courts invalidated cross burning laws on the basis that cross burning, as an expressive activity, is protected by the First Amendment.
This article was originally published in 2009. Professor Rob Kahn teaches at St. Thomas University School of Law in Minneapolis, Minnesota. His 2004 book Holocaust Denial and the Law: A Comparative Study (Palgrave 2004) dissertation examines Holocaust denial litigation. He has also written on topics such as cross-burning in the United States, blasphemy regulation and the defamation of religions debate, and use of law to ban statements about the past.
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