In the political swamp that passes for a legal system in today's intellectually befogged culture, what should be relatively simple and straightforward is transformed into a twisted miasma of self-contradictions, obfuscations, and downright silliness.
This is nowhere more evident than in the oddly zigzagging rulings emanating from the current Supreme Court. Without trying to appear immodest, I -- or probably most of my readers -- would be a better justice than any of those nine aging, black-robed people sitting in Washington, D. C....that is, if the Court were concerned with justice and not merely merely laws and precedents.
Who knows whether the Court will render more of their trademark twisted rulings this session or suffer a spasm of rationality and decide in accordance with proper principles?
One First Amendment case currently being scrutinized by the Supremes concerns three Virginia men in two different situations who were sentenced under that state's half-century-old anti-cross-burning statute. In one instance, two of the men apparently took umbrage to a black neighbor's relatively innocuous complaints about a shooting range the men maintained. They planted a cross on the neighbor's lawn and lit it aflame. Fearing for his safety, the man moved his family elsewhere.
The other issue deals with a man who placed a tall cross on private property where it was visible to the public. He set that cross afire, as well.
The men were convicted but had their convictions overturned by the Virginia state supreme court. The cases were combined and are now in the hands of the federal supreme court.
Immediately, a fundamental mistake is evident. In the first story, the two men clearly trespassed and violated their target's property rights. Whether they truly meant to drive him from the neighborhood or just wanted to scare him as they indulged a juvenile urge at revenge is unknown. But the perps did commit criminal acts.
But, as an online Christian Science Monitor article stated, "The Virginia court said that general laws against vandalism, assault, and trespass could be used to prosecute those who seek to terrorize others."
These cross-burning yo-yo's should not be excused their boorish and ignorant behavior by any laughable appeal to "free expression"...but neither should they be punished due to a bad law that singles out cross-burning anywhere, anytime as a no-no.
Combining this actual violation of rights with the second situation -- in which a cross was burned on private property and in no way violated anyone's rights via trespass or vandalism -- merely serves to stir the muck and obscure the reality of what property rights are.
But perhaps that is one unwitting motivation on the part of the State.
Free-expression, of course, is a right only when conducted on and/or via your own property or that of willing others. The travesty of "public" property creates significant problems in this regard since the property is simultaneously owned by everyone and by no one. (See the Nazis marching in Skokie, Illinois, as one example of this confusion.)
In contrast to the first two Virginia gits, the man who burned a cross -- even a twenty-five-foot tall one -- on private property should never have been arrested and charged.
The State is attempting in this case, however, to further fog the principles involved by invoking that be-all-and-end-all of modern society, "feelings."
The Solicitor General of Virginia, William Hurd, said the anti-cross-burning law "'...applies to anyone who burns a cross with the intent to intimidate anyone for any reason.'" He compared this action to that of uttering "fighting words" that lead to "an immediate incitement to violence and intimidation" and are thus prohibited. (This sentiment echoes a Constitutionally-illiterate Virginia state legislator I heard on C-SPAN who claimed that the Constitution "prohibited" "fighting words"...which it clearly does not.) He also made the astounding claim that the Virginia law "protects a very important freedom -- freedom from fear. And it does so without violating freedom of speech."
The hogwash gets worse.
Justice Antonin Scalia tells us that cross-burning is "'...not just speech. It's action with the intent to convey a message.'" (Gee. I thought speech was also an "action with the intent to convey a message..." Guess not. Or maybe Scalia doesn't count nonverbal communication as subsumed under the concept "expression" or "speech.") And further that..."'If you were a black man, you'd rather see a man with a rifle than a man with a burning cross.'" (!!)
Not to be outdone by his fellow judge, Clarence Thomas chipped in by proclaiming that "'...the cross was a symbol of that reign of terror," and rhetorically asks us, "'Isn't that significantly greater than intimidation or a threat?'"
And worse! Justice David H. Souter sagely tells us that, "'The cross has acquired a potency that is at least equal to that of a gun.'"
Consider what these folks are telling us:
All these "facts" are based solely on the emotions of the person who "feels" fear or intimidation. This travesty of justice borrows from the same screwy logic and blatant subjectivism employed by the anti-discrimination and verbal sexual harassment crowd.
"Feeling" threatened is not the same thing as being threatened. A real threat needs to be one that is actually being made by someone and that can be proven to be a legitimate peril (assuming it is not a real immediate risk such as a robber breaking into your house and pointing a gun at you). Granting full credence and acceptance to the "feelings" of an observer destroys objective law.
Along with this problem is that of equating a symbol with a physical threat. In a general sense, speaking words is an action, yes, but the old saying generally holds true regarding the difference between "sticks and stones" and "words." I may feel emotional "hurt" or "pain" when someone says mean things to me, but that hurt or pain does not violate any of my rights as would the damage from a fist or a slug or a stone wielded by another person and contacting my body.
For Supreme Court justices to blur the boundary between words and actions, between the abstract and the concrete, in order to promote their PC-version of free-expression is outrageous.
As I have written in another essay, "Hatred Is Not a Crime." An emotion -- a feeling -- cannot be a crime, i.e., a coercive action, either directly or indirectly, i.e., a threat to your physical well-being or to the sanctity of your property.
If we accepted the "reasoning" of some of these justices, we would have to outlaw all kinds of symbols:
If I really have a "right to be free of fear and intimidation" then, by golly, the State better start dismantling the PATRIOT Act, the Office of Homeland Security, random traffic stops, seat belt laws, the IRS, Social Security, Medicare, State-run education, the DEA, the FAA, the CIA, the FBI, the BATF, Congress, the Presidency...well, you get the idea.
I fear all of those out-of-control agencies and agents far more than I ever will a mental midget who gets his jollies burning a cross on his own property or that of a friend.
Let the racists express themselves openly. Make it easy for anyone and everyone to be aware of what these bigots are doing and what they actually believe. Let's not have the kind of sub rosa problems created by anti-discrimination laws that violate property rights and voluntary, free association. Such legal shenanigans drive racism and sexism underground where it is still expressed but in far more subtle and hidden ways that are harder to detect and to oppose.
I prefer to know openly who my opponents are so I can debate them, shun them, or boycott them as the occasion demands.
Professor Rodney Smolla of the University of Richmond said that "'It is but a short step from the banning of offending symbols such as burning crosses or burning flags to the banning of offending words.'"
But, of course, that line was crossed long ago. Try using some of those "offending words" at work or school, sometime, and see what happens...
If a racist -- or even a nonracist -- wants to torch a cross (or a U.S. flag or a Star of David or a swastika or any other symbol [on his own property]), then I say:
Let it burn.
(1) Holland, Gina. "Thomas finds voice during cross-burning case." Chicago Sun-Times, online, 12-11-02. http://www.suntimes.com/output/news/cross11.html
(2) Kirkland, Michael. "Court weighs cross-burning ban." The Washington Times, online, 12-11-02. http://www.washtimes.com/upi-breaking/20021211-114004-4107r.htm
(3) Richey, Warren. "Is cross burning a form of free speech?" Christian Science Monitor, online, 12-11-02. http://www.csmonitor.com/2002/1211/p01s01-usju.html