THE BALANCING ACT between protecting fundamental freedoms and securing personal safety is a difficult one. As painful as it may be, it is important that the Court rule that cross-burning is legally protected speech. There are other laws that might have been called upon in these cases. Certainly burning a cross on a lawn that is not your own is an act of trespassing, if not vandalism. And if a cross-burning is accompanied — as many are — with written or oral threats against individuals, the perpetrators can be prosecuted under harassment laws similar to those used against anti-choice protestors prosecuted for preventing individual women from entering abortion clinics. Thomas’s and MacKinnon’s arguments are powerful, but, at this moment in history, they are limited. It is true that Clarence Thomas (no matter what one thinks of his other political positions) is one of only two men who have ever served on the Supreme Court who — as African-Americans — have a distinct, and very visceral, relationship to cross-burning. It is also true that Catherine MacKinnon (no matter what you think of the legal ramifications of her positions on pornography) probably speaks for many women and men who share her revulsion of the degradation of women in visual, violent porn. These are not simply emotional — or as some have said of MacKinnon, hysterical — responses. They are important reactions from people who understand that the groups with which they identify are historically disadvantaged and have been forced into positions of extreme inequality in US society. So while Thomas’s and MacKinnon’s arguments should be defeated, they should not be dismissed. Their ideas deserve public debate.

Through such debate, other truths come to light. Such as the limitations of making law based on personal experience. It was more than a little frightening, as Dahlia Lithwick pointed out in a December 17 New York Times op-ed column, that the rest of the Supreme Court justices took the issue of banning cross-burning far more seriously after Thomas spoke. It is vital to remember that Thomas was not speaking on a point of constitutional law but of the horrors of American racism. Thomas and the other justices have a mandate to judge the law on the basis of its constitutionality, not on the basis of personal experience. Indeed, the seriousness with which Thomas’s statements were received bespeaks a level of racial patronizing that should be inimical to the court’s behavior and purpose. Imagine, for instance, if Ruth Bader Ginsberg or Sandra Day O’Connor spoke vehemently of their antipathy and disgust of violent pornography? They would be ridiculed and attacked for bringing their personal feelings into the discussion.

There’s no question that a justice’s personal experiences shape how he or she thinks, but that is quite different from invoking those experiences as a way of moving along debate. In fact, it is precisely this aspect of "identity politics" that the right — from Anne Coulter and William Bennett to Thomas himself — professes to hate. Who would have thought that Clarence Thomas would end up playing — to create a safer place for African-Americans — what he himself has maligned as "the race card"? Of course, the fault is not entirely his. In a culture such as ours in which racism is so entrenched, almost any statement from an African-American person carries, without that person’s intent, a different racialized meaning than if a white person utters it. But that is all the more reason why the Supreme Court — as it crafts laws for the entire country — must base its findings on the rule of law, not on emotion.

The point, ultimately, is to create a society in which cross-burning doesn’t exist. But that is not going to happen simply by banning it. If the Supreme Court upholds Virginia’s law on burning crosses — thus legally altering the definition of speech as an action, rather than as an expression of an idea — then the entire legal landscape is going to be changed. MacKinnon’s vision of what that change should be is deeply radical. It does not just concern pornography and cross-burning, but also reordering society in such a way that language is defined as action and thought as intent. This means that public utterances of any sort could be construed as threats, that queer-articulated hatred of heterosexuals could be construed as "action" in the same way that straight people’s verbal attacks on homosexuals would be. It means that anguished cries of African-American pain interpreted as intimidating by white people would be subject to a new form of legal interpretation. It means, in the end, that this current government, which has shown so little regard for US citizens — particularly African-Americans — will have far more control over our lives than it has now.

Michael Bronski can be reached at mabronski@aol.com