When it comes to this week's Supreme Court ruling upholding the constitutionality of cross-burning as an expression of free speech, the justices are at least consistent.
They are consistently wrong.Just as it did in an earlier ruling upholding flag-burning on the same basis, the high court this week failed to draw a necessary distinction between the ordinary speech protected by the Bill of Rights and extraordinarily offensive deeds involved in destroying property.
Basically, it is a distinction between words that are designed to change minds and deeds that in the case of burning crosses and flags is clearly meant only to ignite passions.
As a result of the decisions on burning crosses and flags, the country is left with a muddled situation in which:
- The courts have upheld laws making it illegal to burn draft cards during the war in Vietnam as an act of free speech but not laws making it illegal to burn crosses, flags and who knows what else.
- It's all right to pass laws making it illegal to blare political speeches at night but not laws against burning crosses and flags, acts that can be just as disturbing in their way as a loudspeaker in the wee hours.
- Protesters can be prohibited from sleeping in parks to draw attention to the plight of the homeless, but hate-mongers cannot be prohibited from burning crosses as an attention-getting device.
Instead, cross-burners can be prosecuted only for trespassing and arson. But what if such acts take place on a public street only inches from the property line of a private home? And what if the only property burned is that belonging to the cross-burners? Are we really to believe that such acts will be any less offensive and intimidating? Or that the human rights of the targets of such hatred are any less violated?
If it takes a constitutional amendment to straighten out the muddled thinking of the Supreme Court on this score, so be it.