SHOCK WAVES rarely emanate from the august chamber in which oral arguments are held before the US Supreme Court. But it happened at a December 11 hearing on the constitutionality of a Virginia statute that criminalizes cross-burning, when an outburst by Justice Clarence Thomas roiled legal, media, civil-liberties, academic, and political circles with speculation about whether the Court, a fairly reliable supporter of First Amendment free-speech rights since the early 20th century, would retreat from the protection of "hate speech."

The case at issue, Virginia v. Black, did not generate unusual interest prior to the oral argument. The statute in question makes it a crime "for any person ... with the intent of intimidating any person or group of persons, to burn ... a cross on the property of another, a highway or other public place." Most assumed that the high court, in keeping with its own prior decisions, would agree with the Virginia Supreme Court’s view that it is unconstitutional to outlaw cross-burning, a form of symbolic speech, regardless of how loathsome decent people find it. Despite its origins in the Jim Crow days of the Deep South, when the Ku Klux Klan adopted the practice as a way of communicating to black people that they’d best stay in their place or else face mutilation and death, cross-burning has been thought to fall into the same category as such protected expressive conduct as the wearing of black armbands in public schools by Vietnam War protesters and, more recently, burning the American flag to protest government policies.

Black’s outcome also seemed quite predictable because, a mere 10 years ago, the Court invalidated a municipal cross-burning ordinance in the case of R.A.V. v. City of St. Paul. In an opinion written by its current leading conservative, Justice Antonin Scalia, the Court in R.A.V. ruled that the city could not single out hate speech and treat it differently from other speech. The St. Paul ordinance outlawed the placement of any symbol, "including ... a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." "The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects," Scalia wrote.

So the argument in Black appeared to be proceeding as predicted, wrote New York Times Supreme Court reporter Linda Greenhouse in a front-page story (other journalists, including the Boston Globe’s Lyle Denniston and the National Law Journal’s Tony Mauro, also reported on the hearing), until Justice Clarence Thomas, the Court’s only black justice and more often than not Scalia’s ideological twin, piped up with a rare comment. (Thomas is famous for almost never saying a word during even the most contentious oral arguments.) A cross-burning, he inveighed, is indeed symbolic speech, but this does not necessarily entitle it to constitutional protection. The Ku Klux Klan used cross-burning to inflict a "reign of terror" on black communities for a century before Virginia finally outlawed the practice, Thomas intoned. "There’s no other purpose to the cross, no communication, no particular message," he thundered. "It was intended to cause fear and to terrorize a population."

Thomas’s remarks seemed surprising because, in 1992, he joined the Court in invalidating the St. Paul cross-burning ordinance in R.A.V.; then, three years later, he joined the Court majority in allowing the Klan to place a cross in a public square during Christmas season, pursuant to an Ohio law that made the square a "public forum" for the expression of citizens’ opinions. His unexpected blast, Greenhouse reported, appeared to change the tenor of the rest of the argument. The other justices, who had earlier seemed skeptical of the Virginia statute’s validity, suddenly appeared convinced that it might be constitutional after all.

If so, Black may indeed signal a startling shift in free-speech jurisprudence, one that carves out exceptions to the First Amendment based upon whose ox is being gored. The burning cross does not stand alone as a detested symbol — the swastika, for example, has special significance for Jews, and other groups who have endured oppression may react with equal sensitivity to icons that recall their suffering. Stamping out the burning cross could begin a slide down the slippery slope of censorship to avoid offending people.

But predictions of the demise of hate-speech protection are likely way off the mark. The Virginia statute — which bars cross-burning with the "intent of intimidating" — is aimed at threats, not mere insults. Symbolic speech can acquire a secondary meaning that turns it into a true threat of physical harm rather than a simple assertion of offense or hatred. In The Godfather, the Mafia leaves a severed horse’s head in someone’s bed. The implicit threat — that the recipient will die if he does not comply with the gangsters’ demands — is clear and makes the message criminal. So, as Thomas’s outburst emphasized, the question in Black is whether a burning cross has, as a result of history and practice, acquired a meaning more akin to a physical threat than to a mere racial epithet. R.A.V. protected "messages of ‘bias motivated’ hatred" based on notions of "racial supremacy." But, ugly as such symbolic speech is, it belongs to a different category than the threats of physical harm singled out in the Virginia statute. To outlaw cross-burning in such circumstances does not require any fundamental change in First Amendment jurisprudence.

In short, there may be little new under the sun when the Court issues its opinion, expected in the spring. To paraphrase Mark Twain, reports of the First Amendment’s death appear greatly exaggerated.

Harvey A. Silverglate is the co-author of The Shadow University: The Betrayal of Liberty on America’s Campuses (HarperPerennial, 1999) and co-director of the Foundation for Individual Rights