Where I Stand — Mike O’Callaghan: Only half a decision

Thursday, April 17, 2003 | 11:35 a.m.

Mike O'Callaghan is the Las Vegas Sun executive editor.

BY A 6-3 MARGIN, the U.S. Supreme Court distinguished between cross burnings that are conducted to intimidate a person or group of people and a cross burning that doesn't present a "true threat." This ruling upheld a Virginia law that was used to convict two men who burned a cross on the lawn of a black family. On the other hand, this same decision dismissed the conviction of a Ku Klux Klan member for burning a cross at a rally in an open field in Virginia. The rally had at least one speaker who used the situation to attack "blacks and Mexicans."

The justices struggled to protect free speech and still show concern for racial and religious minorities so often the target of the KKK and other hate groups. It was a decision, written by Justice Sandra Day O'Connor, which was designed to make everybody happy. The New York Times editorial board fell under its charm and told readers:

"The court's heavily fractured decision -- its dissents and concurrences crossed ideological lines -- sounds a welcome note of caution. Justice Sandra Day O'Connor warns that states cannot assume, or ask juries to assume, that every cross-burning carries with it an intent to intimidate. The burden is on prosecutors to show, based on 'contextual factors' surrounding a particular cross-burning, that the necessary intent was present.

"Yesterday's ruling gives law enforcement the authority it needs to go after cross-burners. Now it is up to the states and the courts to ensure that they do so without punishing protected speech."

Many people of my generation may find it difficult to believe the KKK only burns crosses to keep warm. Has the KKK become a nice little social group, which promotes activities that benefit the entire community? Not according to an Anti-Defamation League reminder that tells us about other violent activities, which include planning of terrorist bombings and poisoning of water supplies during the past five years. The ACLU lawyer probably didn't mention these activities in his legal brief designed to protect the First Amendment rights of cross burners.

During the coming years it will be most interesting to watch the KKK lawyers have prosecutors jump through the hoops created by this court decision. Don't tell a member of a racial or religious minority that the burning cross, surrounded by guys in white sheets, is a sign of welcome or brotherhood.

Justice Clarence Thomas agreed with the ruling that upheld the conviction of the two men who burned a cross in the yard of a black family. He did refuse to buy into the free speech loophole penned by O'Connor. The New York Times gave excerpts of Thomas' dissent, which included why the Virginia law was passed in 1952 and why cross burning is more of a threat than O'Connor has recognized. The same legislature that passed this statute also had passed several laws during that period of time supporting segregation.

Thomas gives this conclusion: "It strains credulity to suggest that a state legislature that adopted a litany of segregationist laws self-contradictorily intended to squelch the segregationist message. Even for segregationists, violent and terroristic conduct, the Siamese twin of cross burning, was intolerable. The ban on cross burning with intent to intimidate demonstrates that even segregationists understood the difference between intimidating and terroristic conduct and racist expression. It is simply beyond belief that, in passing the statute now under review, the Virginia legislature was concerned with anything but penalizing conduct it must have viewed as particularly vicious.

"In light of my conclusion that the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests."

You can safely bet the fallout from this Virginia v. Black decision will come back again in some other form.