WHICH WAS MORE surprising during oral arguments before the US Supreme Court last week in Virginia v. Black, a case that will settle whether cross-burning is a protected form of speech under the First Amendment: that Justice Clarence Thomas had something to say? Or that when Thomas described cross-burning as an act "intended to cause fear and to terrorize a population," he used Andrea Dworkin’s and Catherine MacKinnon’s arguments contending that pornography does not deserve First Amendment protection? Probably the latter. It’s ironic, to say the least, that the man who introduced mainstream Americans to the oeuvre of porn star "Long Dong" Silver is making convincing anti–First Amendment arguments that so closely resemble the work of radical anti-porn feminists. So convincing, in fact, that the New York Times on Sunday followed up Thomas’s words from the bench with an editorial in favor of the thrust of the Virginia law that makes cross-burning illegal.
There’s no question that the image of a burning cross surrounded by hooded men has haunted the American imagination — and, most particularly, the African-American imagination — for more than 150 years. It’s shameful that in 2002, we as a nation are still dealing with it. But as the continuing furor over Senate majority leader Trent Lott’s remarks during Senator Strom Thurmond’s 100th-birthday celebration shows, the public debate about race in US culture is lively and pugnacious.
The case before the Supreme Court is an attempt to repeal as unconstitutional a 50-year-old Virginia law that bans burning a cross "with the intent of intimidating any person or groups of persons." The appeal involves two separate incidents involving three men who were convicted under the Virginia law. In the first, Richard Elliott and Jonathan O’Mara burned a cross on the lawn of a black man who was a neighbor of Elliott’s. In the second, Barry Black burned a cross at a Ku Klux Klan rally held on private property, but frightened a neighbor. The Virginia Supreme Court last year ruled that the law was unconstitutional, a ruling that the state itself is appealing. The men are represented by noted First Amendment lawyer Rodney A. Smolla, who argues that cross-burning is a form of symbolic speech that is guaranteed First Amendment protection. US Solicitor General Theodore Olson has filed a friend-of-the-court brief defending the Virginia law.
Not surprisingly, as Thomas’s emotional words from the bench (lynchings of blacks constituted "a reign of terror and the cross was a sign of that") show, debates about cross-burning are highly charged and difficult. Between 1882 and 1930, there were 2500 documented cases of African-American men and women being lynched by white mobs in Southern states. If you do the math, that means that on average, a black child, man, or woman was murdered once a week, every week, between 1882 and 1930, always by a white mob driven by hate and often with the influence, support, backing, or direct help of the Ku Klux Klan. During this time, the Klan, and groups like it, used burning crosses as a potent symbol that they could — and would — get away with it. The "reign of terror," as Thomas rightly describes it, did not end with the passing of the civil-rights acts of the 1960s and 1970s. In 1981, 19-year-old Michael Donald was abducted, strangled, and lynched in Alabama by two Klansmen who had chosen Donald at random "to show Klan strength in Alabama." In 1984, the ringleader of that murder was executed in the electric chair — which marked the first time a Klan member had received the death penalty for the murder of an African-American.
This history doesn’t make Thomas right, however. He’s wrong. As were MacKinnon and Dworkin. But the discussion sparked by Thomas’s remarks — Virginia v. Black received scant attention before Thomas made it clear that he was sympathetic to the Virginia law — marks an important moment in US culture. The moment is defined not just by the fact that similar anti–First Amendment arguments over difficult topics can be made on both sides of the political fence, or by the fact that pleas to deal with these issues are being made by deeply heartfelt appeals to emotion rather than to the rule of law. No, the moment is defined by the fact that we are debating the philosophical issue of what constitutes speech and what constitutes action.
While Thomas never specifically cited Dworkin or MacKinnon in his zealous, impromptu remarks, his argument was nearly identical to the one made by MacKinnon in her 1993 book Only Words (Harvard University Press), in which she explicitly drew an analogy between the harm done to women by pornography and the harm done to African-Americans when crosses are burned. But even without specifically referring to MacKinnon’s ideas, Thomas raised in his remarks — as did MacKinnon in her book — complicated legal and social issues about the relationship between speech (symbolic as well as spoken or written) and action. Are words, as MacKinnon puts it, "only words," or do they have very real — and often very dangerous — effects upon the world?
UNLIKE THOMAS, MacKinnon is a determined and adroit debater. Even when you don’t agree with her, she can make you question your beliefs. In Only Words, she argues that American jurisprudence is marred by a deep "incoherence [in] distinguishing speech from conduct," especially when there are issues of social inequality involved. "Crossburning is nothing but an act, yet it is pure expression, doing the harm it does solely through the message it conveys," she writes. "Nobody weeps for the charred wood. By symbolically invoking the entire violent history of the Ku Klux Klan, it says, ‘Blacks get out,’ thus engaging in terrorism and effectuating segregation."
In linguistics there is a category of language classified as "speech action" — words that have real effects in the world. MacKinnon argues that much of what we have categorized as speech actually constitutes "speech actions" — or even plain action: cross-burning, violent pornographic images, American Nazi Party marches through neighborhoods of Holocaust survivors, anti-Semitic propaganda. This is exactly what Thomas and the New York Times said about cross-burning. As the Times wrote: "Courts must be especially careful reviewing statutes of this sort because of the danger that freedom of expression may be wrongly curtailed. Robust political expression, even of odious perspectives, is central to our way of life. But in the case of Virginia’s cross-burning law, the expression prohibited is a message of racial intimidation and a clear threat of violence." In Only Words, MacKinnon is more succinct and to the point: "Social inequality is substantially created and enforced — that is, done — through words and images."
But few who agree with Thomas and the Times would do what MacKinnon does in Only Words and use the same argument against cross-burning to claim that violent pornography should not be protected by the First Amendment. Surely there is a difference, they might argue, between the blatant public celebration of white racism — the intent of which is to intimidate African-Americans — and depictions of sexual activity. But just as this country has an appalling history of racism, there is an equally appalling history of violence against women — which continues, largely unabated, today. As appealing as this argument might be to those who want to use every available tool to fight racism and sexism, it takes us down a very slippery slope: how violent would pornography have to be before it is too violent? How close does a burning cross have to be to an African-American home before it is manifestly intimidating? Could you burn a cross on television — with the express intention of intimidating viewers — and still be persecuted under the law?
All that said, the idea of First Amendment absolutism is a comforting one. It allows us to bask in the notion that freedom is completely attainable, and that free expression holds no dangerous consequences. It shifts the effects of the very real fears of people — African-Americans, women, gay men, and lesbians — who have been targeted by groups and individuals more powerful than they, to the far less urgent status of having been "offended." Of course, the reality is that most Americans are "offended" by the actions of the Ku Klux Klan, but most Americans don’t experience the burning of a 25-foot-high cross in their neighborhoods.
But there’s something else to consider in MacKinnon’s challenge to the Supreme Court’s handling of freedom-of-speech issues — and in how her challenge has been echoed by Justice Thomas. It must be placed in a broader political context. It is, for instance, no surprise that the Bush administration is filing a friend-of-the-court brief to uphold the Virginia law. It fits in all too neatly with the administration’s general dictum that the less free speech our citizens have, the better off we’ll all be. It also dovetails with the administration’s domestic "protectionist" policies — i.e., everything we are doing to fight terrorism, such as dismantling a wide range of civil liberties, putting into place complicated systems to spy on private citizens, encouraging neighbors to report one another for suspicious activity, is done for our own protection. Just as the administration’s defense of an ill-conceived but well-intentioned law to ban cross-burning will purportedly protect African-Americans. But make no mistake, no matter who is its "beneficiary," such government protections are usually only about government control. (The Bush administration’s brief is also yet another not-very-subtle attempt to give the appearance — so much more necessary now after Trent Lott spoke his true mind about race relations and then had to lie with an apology — that the Republican Party cares about the concerns of African-Americans.)