Chapter 6 A hundred years of history and a burning cross

I wrote an article before, "The Star-Spangled Banner in Fire and the People's Right to Express", which tells the story of the three branches of the U.S. federal legislation, judiciary, and administration in order to determine whether it is legal to burn the national flag.Although the conservative members of the Congress still want to propose bills or constitutional amendments banning the burning of the flag every now and then, due to the two rulings of the U.S. Supreme Court, so far, people have publicly used the flag burning method to express their political views. , is legal in the United States.The Supreme Court ruled that flag burning was a "symbolic speech" meant to express and convey ideas.Any expression of thought should be protected by the First Amendment to the Constitution. This principle is called the "content neutrality" principle of freedom of speech.

However, in a rich and diverse human society, freedom of speech cannot be absolute.The Federal Supreme Court has passed previous rulings, showing that freedom of speech protected by the Constitution has limitations "when, where and how".The most frequently cited example is that in a theater full of people, it is not allowed to yell "It's on fire" casually.Speech that raises an imminent "clear and present" danger is also not protected by the law.For example, it is illegal to publish the time, number, and location of the army's departure in newspapers; it is also illegal to point at others' noses and curse, that is, "combat language" that may cause violent conflicts.

The KKK group in the United States, their signature image is to cover themselves mindlessly with white robes, only revealing two eyes.This image is unique, not patented but never imitated.They also have a signature activity, which is to burn crosses during their ceremonies.This kind of cross-burning ceremony is often accompanied by intimidation, brutality and even lynching of black people in history.Therefore, this kind of cross-burning activity is a frightening behavior for black people.It not only heralds the danger of hatred and violence, but also casts an unspeakably terrible shadow on the hearts of generations of black people.

Since it is legal to burn the national flag, is it legal to burn the cross?Recently, there was a case of national attention that raised questions about this.This is the case of "Virginia v. Blake". 1. Virginia v. Blake The violence against blacks appeared in the American South after the abolition of slavery in the American Civil War.The south here is mainly the states of Guide, North Carolina, Georgia, Tennessee, Mississippi, Alabama and Virginia. Before the Civil War, most of the blacks there were slaves, and they were the private property of the slave owners.On the one hand, violence against blacks was rare during slavery because it amounted to self-destruction, or the destruction of other people's property.Blacks, on the other hand, were in slavery, and conflict between black and white was almost impossible.After the Civil War, slavery was abolished, and the situation changed dramatically.Although racial segregation was still practiced in the South, there were local laws that restricted blacks from realizing their civil rights.However, blacks are already free citizens and have begun to move freely, so there is the possibility of conflicts between black and white.At the same time, white extremist organizations such as the KKK combine with the white supremacist sentiment among the people at the bottom, and often use public violence to deal with conflicts among the people.Because public violence is very easy to spread, and because blacks are in a disadvantaged position, once violence arises, many innocent blacks will suffer violence and even be violently lynched to death.Such events mainly occurred in the period of about one hundred years from the Civil War to the 1950s.

In 1952, in response to the activities of the Virginia KKK group, the Virginia Legislature passed a law prohibiting the burning of crosses.For half a century, Virginia law has been amended several times to make cross-burning with the intent to threaten another a criminal offense. In the spring of 1998, a white man named Elliott told his friends at a gathering of friends that his black neighbor complained that he was practicing shooting in his backyard.He obviously thought of revenge because he knew that black people were afraid of this kind of cross burning.There was a white man named O'Mara who promised to help him.They hastily made a cross out of wood, dragged it to the lawn in front of the black neighbor's door, and set it on fire.

O'Mara was later charged, subsequently conditionally pleaded guilty, and was sentenced to ninety days in prison and fined $2,500.As a condition of his plea, he reserves the right to appeal.He pleaded guilty because Virginia did have a law against burning crosses, and his actions violated that law.And he wants to appeal because he thinks the constitutionality of this law is still questionable. Elliott, who was in the same case, was convicted by a jury of violating Virginia's cross-burning law and sentenced to the same prison term and fine. O'Mara and Elliott then appealed to the Virginia Court of Appeals, arguing that Virginia's cross-burning ban violated the state constitution and the free speech clause of the U.S. Constitution.The appeal court found that the burning of the cross intended to threaten others clearly amounted to threats of violence and "combat language" and upheld the original sentence.

Neither O'Mara nor Eliot was a member of the KKK group. In August of the same year, a person named Black was a "boss" of the KKK organization.He came to Virginia from the north and rented a piece of land where he held KKK rallies.After delivering speeches about race and religion, they set fire to a three-story-high cross. Blake was charged with violating Virginia's cross-burning law.Black argued that Virginia's statute was unconstitutional and asked the court to dismiss the charges, but the court refused. The jury found him guilty, and the court fined him $2,500. Blake appealed, and the state appeals court upheld the decision on the same grounds in the O'Mara and Elliott cases.

Blake appealed to the Virginia Supreme Court. The Virginia Supreme Court first examined the implications of crucifixes and burning crucifixes.The cross composed of a vertical bar and a horizontal bar has a very strong meaning to Christians. It is a symbol of Christ's crucifixion and resurrection.But, unfortunately, this symbol has also been interpreted in other ways.As we all know, the main appeal of the KKK is to establish a white racial nation in the United States.In KKK ceremonies, the cross is a symbol of white supremacy.The ceremony of burning the cross is a demonstration against ethnic minorities, Catholics, Jews, Communists or others hated by the KKK.

According to previous cases of the Federal Supreme Court, the First Amendment to the Constitution protects speech regardless of whether its "content" is "correct" or not, whether it is recognized by the government or the majority of people.An activity, or a "symbolic expression", as long as it conveys "ideas", can be regarded as a kind of "speech" and thus protected by the Constitution.In RAV v. City of St. Paul in 1992, the Supreme Court ruled that St. Paul, Minnesota's law prohibiting cross-burning was unconstitutional.Citing this jurisprudence, the Virginia Supreme Court pointed out that the First Amendment to the Constitution prohibits the government from specifying what kind of speech it likes and dislikes, or what expression methods are illegal. , are invalid.

In November 2001, the Virginia Supreme Court ruled in Blake's favor four to three, declaring Virginia's half-century-old cross-burning law unconstitutional. The Virginia Department of Justice appealed to the Supreme Court. 2. Justice Thomas' Anger On December 11, 2002, Wednesday, Washington, the federal capital, was rainy in winter, and it was bleak.The Supreme Court held a hearing to hear arguments from two lawyers in Virginia v. Blake.Virginia Attorney General Kil Gore personally represented the state government at the hearing.Representing Black was Professor Rotney Smoura, a prominent constitutional law expert at the University of Richmond School of Law.

The government of Virginia argues that the cross-burning ban is not aimed at the content of the speech, and is not a regulation based on the content, but because, according to the history of the 100-year post-Civil War in Virginia, cross-burning aims to intimidate others. cause terror and riots.What Virginia law prohibits is not any speech or expression related to race, color, religion, etc., but the burning of crosses intended to threaten and intimidate, no matter who it is, no matter what belief or thought it is, no matter what it is for The purpose, as long as the intention is to threaten and intimidate, then this kind of cross burning is prohibited by law.Therefore, this law does not violate the principle of "content neutrality" and does not violate freedom of speech. Since the triumph of the civil rights movement in the 1960s, the Supreme Court has ruled in some landmark cases in favor of the increasingly unpopular KKK because of the constitutional protection of free speech. It is legal for the KKK to hold rallies and parades, it is legal for the KKK to wear their pointed white robes during rallies, and it is legal for the KKK to display their crosses in parks during festivals.By the same token, neo-Nazi organizations are legal in the United States, and it is also legal for neo-Nazi organizations to apply to hold rallies and parades in Jewish ghettos.These rulings are based on the principle of "content neutrality", focusing on the protection of all expressions of thought by the Constitution. Therefore, as soon as the hearing began, the justices who walked on this line of thought interrupted and questioned Virginia's defense from time to time.Justice O'Connor asked: "Is it necessarily a threat if you burn a cross? If you burn a cross in a play or a movie, is that also a threat?" Justice Kennedy also seemed to ask in disbelief: "Is burning a cross any time a crime in Virginia?" Justice Scalia said half-jokingly: "It is obviously impossible for you to prohibit people from burning crosses in their bedrooms." Supreme Court hearings are usually brief, with half an hour each for presentations by lawyers from both sides, and interjected questions and comments from the justices.However, when the hearing was nearly halfway through, the black justice Thomas, who had been silent for more than ten years, suddenly spoke in his heavy baritone voice. He said that the purpose of burning crosses has never been any other purpose. The purpose of burning crosses is to intimidate, intimidate, create terror, and suppress the people with fear. Born in the southern state of Georgia during the apartheid era, the black man who went from a poor bottom to the highest hall of the federal judiciary step by step is a justice known for his conservative values.His deep voice was roaring with righteous indignation: "This is the reign of terror, and the burning of the cross is a symbol of this reign, which is different from other symbols of our society." He reminded everyone to pay attention, "We have almost a hundred years of Southern mob lynching". After Justice Thomas interjected, the atmosphere in the courtroom seemed to change subtly.Next came an opportunity to speak on behalf of Black's Professor Smola.Professor Smola insisted that the law cannot determine that burning a cross is a threat or intimidation. Burning a cross is an expression of behavior, an expression of thoughts, and all thoughts are protected by the Constitution.He admitted that burning crosses in other people's yards is a violation of other people's land and property; burning crosses in public places without the permission of the fire department may violate local fire regulations; if a fire is caused, it may be a crime of arson. and so on.Such activity is illegal, but should be dealt with by "neutral laws" that have nothing to do with the content of the expression.It should be lawful to burn a cross for a specific expression at a rally or ceremony on one's own land, or on land leased and licensed, under the conditions permitted or approved by the fire code, and it is impossible for the government to prove that This kind of cross burning is threatening and intimidating. At this time, Justice Suter interjected, perhaps, the burning of the cross has formed a Pavlovian conditioned reflex, and people will arouse fear when they see it, but other symbols do not have this effect. A special category". Professor Smaller reviewed the Supreme Court's ruling on the flag-burning case, and then said that everyone has to admit that the cross is the most meaningful symbol in human history.Since burning the national flag is legal, burning crosses should be the same.Judge Ginsberg interjected that there was a big difference between the two.She said, "The national flag is the symbol of the government." The title of the constitutional system should mean that "anyone can criticize the government." Burning crosses is attacking the people and threatening the lives and physical safety of others. Professor Smaller argues that it is impossible for the government to effectively prove that the burning of crosses was aimed at intimidation.He asked, "What's the difference between lighting a torch and burning a cross?" Justice Kennedy leaned forward and said word by word: "The difference is a hundred years of history." The audience was silent, and the atmosphere was as solemn as if it had been frozen.I only heard Professor Desmoola reply in a low voice: "Thank you, Justice Kennedy, this century-old history is on the side of freedom of speech." The hearing was over, and the rain outside was getting heavier.Reporters waited under umbrellas in front of the Supreme Court building.The lawyers of the two parties answered questions from the reporters. In the cold wind, the lawyer of the Virginia Department of Justice said, "We are not trying to suppress freedom of speech, we are trying to protect freedom from fear." 3. Freedom of expression and freedom from fear The case was discussed in the media.Whether the cross-burning ban is unconstitutional depends mainly on three points: first, whether the act is an expression.Second, whether the behavior threatened others.Third, how will "free speech" and "freedom from fear" be balanced. Let's look at the first point first.The party who proposed that the "Burning Cross Law" is unconstitutional refers to the fact that the law violates the First Amendment to the Constitution on freedom of speech.Therefore, if it cannot be proved that the act of burning a cross is an expression of a message, then burning a cross is the same as burning two sticks of firewood.It should be attributed to the environmental protection law that prohibits the burning of garbage. It has nothing to do with the First Amendment. So, is burning the cross an expression with a message?Several university professors have written that cross-burning may have originated from a Scottish custom.They have documented that the ancient Scots used burning crosses to rally troops, or to warn of enemy invasion.Burning the cross in the ceremony is used to show that one is invincible, and it is said to have the meaning of exorcising evil spirits.The professors pointed out that the KKK, which originated in the South in 1866 after the Civil War, probably retained some Scottish customs, which evolved into the KKK's signature behavior.According to KKK's own name, burning the cross is not called "burning", but "lighting the cross", not to destroy the cross, but to show that "Christ is still alive". If the first point is affirmed and the behavior is judged to be an expression, then it is necessary to turn to the second point, that is, whether the behavior "threats others".Here, it must be explained that if an act of expression directly threatens an individual, it is not protected by law.Laws prohibiting such expressions are not unconstitutional.Because the most basic prerequisite for the protection of personal freedom is that your freedom cannot be trampled on the freedom of others.If you insult someone verbally, such as by name or by pointing at someone and calling them a "nigger," you are certainly exercising freedom of expression, but you are violating the other person's freedom from insult and fear .Such expression that directly violates individual freedom is not protected by the Constitution. The current Virginia law prohibits a seemingly non-specific, generalized act of cross-burning. So, even if there is no specific target, is burning the cross a general threat to others?Does it violate the "freedom from fear" of others? The day after the Supreme Court hearing, the TV station invited Ms. Sears, a Virginia congressman, to face-to-face arguments with American Civil Liberties Union lawyer David Bow, who defended KKK Black in the court trial. Ms. Sears introduced a new bill that would ban "the burning of any object intended to intimidate" after the Virginia Supreme Court declared the cross-burning law unconstitutional.This is the first bill introduced by the young state legislator who once served in the Marine Corps.The bill was unanimously passed by the Virginia Legislature 98-0. David Bow is a criminal defense attorney and activist with the American Civil Liberties Union.After Black was charged, no lawyer was willing to defend him, so he had to turn to the American Civil Liberties Union for help.The league found David Bow.David Bow represented Blake in court all the way to the state Supreme Court. What's special is that Congresswoman Sears and attorney David Bow are both black. On television, Ms. Sears recalled a century of terror for blacks in the American South and condemned the KKK for threatening to intimidate blacks by burning crosses.She said that a hundred years of history has proved that the burning of crosses was accompanied by the persecution of black people, and black people still shudder to think of it.This kind of threat and intimidation to others is not freedom of speech and is illegal.Many listeners called in to express their support, not only blacks but also whites.Some white audience members recounted the horror the sight of the burning cross even created in their hearts.Many people emotionally expressed their disgust for such an ugly act of burning the cross.Burning a cross is a symbol, but a symbol that causes fear in others, a symbol of aggression.Banning such symbols protects the freedom of the population from fear. Lawyer David Bao also said that burning the cross also aroused fear and disgust in his heart, an indescribable depression and fear.He also hates the KKK's remarks and disgusts the KKK's behavior.Speaking of excitement, tears glistened in his eyes. That is to say, both sides of the argument have no objection that the behavior is a certain degree of pan-threat.Their dissent focused on whether the level of this pan-threat was serious enough to warrant a ban on its expression, i.e. "free speech" and how "freedom from fear" would balance in this case. After acknowledging that burning the cross did arouse some people's fear, lawyer David Bao said: "Unfortunately, burning the cross should be legal." People's right to freedom of speech must be protected at all times from government encroachment.The government's infringement and encroachment on freedom of speech always targets the minority in society, especially the unpopular minority.Therefore, you cannot let their rights be deprived just because you hate them yourself. He said that the protection of freedom of speech in the First Amendment to the U.S. Constitution has two meanings: one is to protect the freedom of speech of the public from persecution by the government; the other is to protect the freedom of speech of a minority from persecution by the majority.The KKK in this case is the latter case. A black female listener called and said that when white views like the KKK were the majority, we blacks, as a minority, spent a hundred years fighting for our rights and freedom.Now, KKK is a minority, we should not take away their freedom of speech.Things should not develop like this, this is not the result we asked for back then. David Bow says if we disagree with KKK ideas, we should They should be allowed to "speak up", so that you can know what they mean, and you can have a dialogue with them, so that they can understand that they are wrong, and they should not be prohibited from expressing. 4. The difficulties of living in a democratic system David Bow said with some seriousness, "Living in a democracy is difficult."For, it is to live in a democracy that one must face the dilemma between "freedom of speech" and "freedom from fear."Respect for freedom of speech is the most important part of maintaining a democratic system and a free society, so it must be treated with great care.Freedom of thought is at stake if an expression of thought that appears heretical is easily banned.For a speech and expression to be banned, there must be a very good reason.For example, it must be recognized that it arouses fear and its severity far outweighs the rationale for allowing its expression.Therefore, the same expression, in different times, places and groups, when balancing "freedom of speech" and "freedom from fear", draws different conclusions. It is clearly related to the experience of different social groups.Facing a specific object like burning the cross, what it elicits in people's minds can only be understood by connecting people's personal experiences and their specific situation in social conflicts.Like the reaction to the Nazi symbol, it is difficult for other peoples to feel the pain as deeply as the Jews.The disgust and fear of cross burning that most blacks and whites feel today is the result of a hundred years of black suffering.It is impossible for you to experience it yourself, but only after understanding the suffering of black people in the past century can you understand their grief and indignation.Only by understanding the grief and indignation of black people, under the legal logic, can we have solid human care and moral responsibility.With this kind of understanding and compassion, we will regard the establishment of laws to protect vulnerable groups as the responsibility of all members of society.Only in this way can a healthy society be built.Today's law cannot be separated from history, and cannot be separated from people's personal experience and experience in history. However, history is moving forward, and social groups are changing.When the suffering is far away, the catastrophic harm to society has basically disappeared in reality, the fear has weakened, and the self-confidence of individuals and society has also increased.Then, the balance between "freedom of speech" and "freedom from fear" in the same act of expression will obviously be different today, fifty years ago, and fifty years later.The United States today does not appear to be one-sided in the balance, precisely because the southern blacks have left this history for half a century.Those black people who overcame historical fears and supported the freedom of expression of the KKK are evidence of confidence in today's social progress.However, how widespread this self-confidence is, and how many black people have been able to overcome the fear that history has brought upon them, remains to be judged. In addition to the experience and time of specific groups, such a balance also involves the fear of disasters and the estimation of the ability of the whole society to bear.For example, in the United States, neo-Nazi organizations are legal and so are Nazi symbols; in Germany, neo-Nazi organizations are expressly prohibited by law.The reason is simple. The United States does not have the tragic experience of the Nazis and fascists. The American people can calmly regard Nazi ideology as a kind of ideology and regard Nazi organizations as a kind of association. They can operate legally and be protected by the Constitution. ; and Germany is a place that was almost wiped out by the Nazis.Nazi ideology and Nazi organizations not only brought back painful memories, but were also a source of social unrest.Half a century is not enough for Germany's trauma recovery.Measured there, the protection of "freedom from fear" is still the heaviest weight on the scale. A hundred years of history and a cross in fire have forced Americans into a dilemma between "freedom of speech" and "freedom from fear."David Bao said that, unfortunately, it is impossible to live in a democratic society free from all fear. The American system assigns the responsibility of judging before the dilemma to the nine justices of the Federal Supreme Court.They will make a ruling next spring.Until then, one cannot guess the outcome.This is because it is a very delicate period of time for this case to come to this day.Fifty years ago, the KKK had high arrogance, and the laws protecting blacks in the South were a sign of social progress. The judicial balance would also tend to protect "freedom from fear"; imagine that fifty years from now, According to the current trend, the KKK may be in a more declining state at that time, and the blacks are stronger and more confident, and they are no longer prone to fear. Then, the balance of measurement will tend to protect the freedom of speech of the KKK.Today, it is more or less somewhere in between these two situations. We care about this judgment, and what we care more about is this kind of thinking process, and pay more attention to how Americans recognize the dilemma and their cultural habits of recognizing and obeying judicial judgments in the dilemma.They are not simply dichotomizing black and white, but they admit and face it almost tragically: the life and the world in front of them are not perfect and inextricable; and human wisdom is limited, and no judgment is perfect before a dilemma.This way of thinking is often what we lack. Note: The Supreme Court of the United States ruled on this case: state legislatures have the power to make laws restricting the burning of crosses.