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[Detail] Where gold was firs [sic] discovered [between 1890 and 1910].

[Detail] Where gold was firs [sic] discovered [between 1890 and 1910].

Issue-Analysis and Decision-Making: Free Speech and Hate Crimes

On April 7, 2003, the U.S. Supreme Court made a ruling that upheld a Virginia law banning cross burning. The legality of the Virginia law had been challenged based on the idea that it interfered with Americans' right to free speech — in this case, the freedom to make a statement by burning a cross.

Though the First Amendment of the Constitution guarantees the right to free speech, this right is not absolute. For example, the Supreme Court has ruled that speech that presents a clear and present danger, such as inciting chaos by screaming "Fire!" in a crowded theater, is not worthy of protection as speech.

In trying free-speech cases, judges weigh the value and impact of a specific speech act against the need to protect free speech. In April, 2003, when the Supreme Court considered Virginia v. Black, they concluded, five to four, that the history of cross burning gave that symbolic act a particularly racist and hateful meaning that is not worthy of First Amendment protection. During the trial, Justice Clarence Thomas said that the cross was "unlike any symbol in our society," equating it with what he called a century-long "reign of terror" by the Ku Klux Klan.

Although the Ku Klux Klan developed in the post-Civil War South, the organization was not limited to the southern states, nor did it cease to exist after Reconstruction. Search on Ku Klux Klan and cross burning for images of Klan activity in Denver during the 1920s. Burning crosses were often placed in the yards of African Americans and civil rights sympathizers to intimidate them, and were often the prelude to lynchings and other violence.

  • According to the pictures, what was the status of the Ku Klux Klan in Denver in the 1920s?
  • What would this status have contributed to the impact of the Klan's use of a burning cross?
  • Do you agree with Justice Thomas that a burning cross is a unique symbol in American society because of its history?
  • Is burning a cross different from displaying a Confederate flag or burning an American flag? What are the historical meanings and effects of these acts? Should they be banned or protected by the First Amendment?
  • Is it appropriate to say that a symbol can be equated with any one meaning? If so, under what conditions?
  • What principle does the Supreme Court's ruling in Virginia v. Black establish? What was the rationale for banning cross burning?
  • Does the ruling open the way for other types of speech to be banned just because some people find them abhorrent?
  • Does the April 7th ruling already impede free speech by causing people to fear that they might be punished for voicing unpopular opinions? Is this a reasonable response to the ruling? Why or why not?
  • How do we draw the line between speech that we may find abhorrent and speech that is so abhorrent that it should not be considered worthy of First Amendment protection? Who should make such judgements? Should such judgements even be undertaken? Why or why not?