Supreme Court’s Cross Burning Decision

I have believed for a long time that the Supreme Court has hopelessly screwed up 1st Amendment jurisprudence, mostly by failing to distinguish between speech and action. This failure has spawned a host of cases on “symbolic speech” and “expression” that put the courts in the ridiculous position of regulating phenomena such as nude dancing under the 1st Amendment.
It seem obvious to me that a person may utter words and nevertheless be “acting” rather than “speaking” for 1st Amerndment purposes. For example, a gangster who says “Shoot him, Bugsy,” does not have a 1st Amendment defense to a murder charge if Bugsy shoots. Similarly, a person who carries out an action–whether it be nude dancing or burning a cross in his neighbor’s yard–is not “speaking” merely because his action is motivated by a political, social or philosophical belief.
With the major caveat that I have not yet read the numerous opinions, I don’t have any trouble with the Supreme Court’s decision on the Virginia cross-burning statute. The Court held that the Virginia statute at issue was unconstitutional, but that a state may ban cross burning as long as the prosecution is required to prove that the action is intended as a threat and not as a form of “symbolic expression.” I think that’s right as far as it goes; burning a cross in someone’s yard is not unlike a gangster giving another gangster a box with a fish in it; i.e., a threat. I would go farther, however, and question, at least in this context, the whole concept of symbolic expression.
Justice Thomas appears to be doing this in his dissenting opinion. He noted that the Virginia statute prohibits “prohibits only conduct, not expression. Consequently, there is no need to analyze it under any of our First Amendment Tests.” That seems right to me. And it wouldn’t take much imagination to make a similar argument that flag-burning can constitutionally be proscribed.


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