Should cross burnings be protected as a form of free speech?
Does sending of Obscene Material Over the internet Constitute the transportation of Obscene Material in Interstate Commerce?
This Article concerns the criminalization of cross burning. This act of
symbolic expression sometimes communicates hate, inspires fear of
impending bodily harm, expresses an ideology and solidarity with others,
or encompasses combinations of these. In 1991, Edward Cleary
defended a White juvenile, known in court documents as R.A.V., who 2
had burned a cross on the lawn of a Black family. In that litigation,
Did cleary begin his oral argument to the Supreme Court by posing this
question: To what degree does abhorrence of cross burning justify
banning it?3 That question still baffles us. Establishing appropriate
boundaries for the protection of speech that can both intimidate and
express an ideology constitutes a profound challenge for a progressive
society committed to the twin goals of free expression and civil order.4
When it was decided in 1992, R.A.V. v. City of St. Paul5 became the
most recent in a line of cases, reaching back six decades, that invited the
Court to demarcate the limits of the First Amendment’s protection for
- Professor of Law, The Catholic University of America, Columbus School of Law.
- United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).
- See R.A.V. v. City of St. Paul, 505 U.S. 377, 378-79 (1992).
- See Transcript of Oral Argument, RAY. (No. 90-7675), 1991 WL 636263, at *3.
Petitioner’s oral argument to the Court in the R.A. V. case began with the observation:
Each generation must reaffirm the guarantee of the First Amendment with
the hard cases. The framers understood the dangers of orthodoxy and
standardized thought and chose liberty.
We are once again faced with a case that will demonstrate whether or not
there is room for the freedom for the thought that we hate, whether there is
room for the eternal vigilance necessary for the opinions that we loathe.
A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF.204, 217-18 (1972) (explaining that this challenge arises at least in part because protecting
freedom of expression sometimes conflicts with government’s prerogative and duty to
enact laws designed to deter and punish threats of substantial harm to another).
- 505 U.S. 377 (1992).
Catholic University Law Review [Vol. 54:1
hate speech in general and “true ‘threat[s]”‘ in particular.6 As it had so
often in the past, the Court in R.A.V. avoided the most difficult First
Amendment questions.’ Indeed, for half a century the Court has resisted
confronting the web of constitutional and political complexity hate
speech creates-that is, until its 2003 decision in Virginia v. Black.”
Through five separate opinions, none of which commanded a majority,
the Court in Black upheld in part and struck down in part the Virginia
ban on cross burning with an intent to intimidate.9 While hardly a model
of clarity, the decisions in Black provide our best understanding yet of
the constitutional protection accorded hate speech.