A Burning Cross, Virginia v. Black

[Emsworth]

The decision was sound. The mere burning of a cross, absent any actual intimidation, is constitutionally protected speech, just like the burning of a flag.

[Emsworth]

The [burning] cross is a sign of terrorism, and is about as protected under the First Amendment as brandishing an assault rifle.

An assault rifle is a deadly weapon that can actually be used to attack someone. A burning cross is not.

Nor is a burning cross a symbol of terrorism. It has been used in a few specific cases to instill fear, but on the whole a burning cross is quite harmless, posing no actual threat, causing no actual breach of the peace.

[Emsworth]

The words, "I will kill you" can not attack someone either.

Such a statement involves an unmistakable and explicit threat to kill someone. A burning cross has, at most, mere connotations.

But that is not all. If someone says "I will kill you" in a threatening way, then his statement is not constitutionally protected. However, if he makes the statement in a playful or joking manner (with a friend, for example), then the state may not punish him. The same statement may or may not be a threat.

The same rule applies to cross-burning. Burning a cross with the intention or effect of intimidating someone is not constitutionally protected. But merely burning a cross cannot be a criminal activity.

[Emsworth]

This statute, as I understand it, was aimed specifically at intimidation. No one was saying the Klan couldn't use the symbol at its private rallies or any such thing.

If I recall correctly, the objection was to the part of the statute that stated, "Any such burning ... shall be prima facie evidence of an intent to intimidate a person or group."