Bring Your Own Fiery Cross

September 07, 1993

The Court of Appeals has ruled unanimously that Maryland's anti-cross burning law violates the First Amendment's guarantee free speech. The Maryland law is aimed at the Ku Klux Klan, whose members traditionally use the fiery cross as a way to threaten, intimidate and terrify African-Americans. (It used to target Jews and Catholics, too.)

The Supreme Court has long made it clear that symbolic speech is the same as written and spoken words, so perhaps the Court of Appeals decision should have come as no surprise. It did come as a surprise to many, including the attorney general's office. That is because the Maryland statute does not forbid cross burning. It just requires the Klansman or neo-Nazi or whatever to get permission in advance from the owner of the property -- private or public -- where the cross is to be burned and to notify the fire department.

The Court of Appeals' reasoning was that other forms of burning and expression do not require such permission or notification, so the law is a denial of the Klan types' right of free speech.

The legal reasoning may be impeccable, but it leaves the state with a problem: How to protect its black citizens from hateful assaults. The attorney general could appeal the decision to the Supreme Court, but the success of that seems unlikely, given the 7-0 vote in the Court of Appeals. Trespass and arson laws won't work, because they require the owner to notify the cross-burner to leave the premises -- and because it is perfectly legal to burn your own property. Bring your own cross, set fire to it and leave, and it's perfectly legal.

Maryland has another law, untested in this case, that may work. It forbids "harass[ing]" . . . a person because of that person's race, color, religious beliefs or national origin." Is cross-burning harassment? It might be. The next time a Klansman burns a cross on someone else's property, the local state's attorney should charge him with violating this section of the state's criminal code.

The state legislature also ought to rewrite the law the Court of Appeals threw out (if the decision is not appealed, or is appealed unsuccessfully), in the hopes of making it meet constitutional muster. One approach would be to require anyone burning anything on another's property to get permission in advance -- and to have graduated penalties for those who do not. Burn a cross or a pile of leaves or a hamburger without permission and it's a crime -- with triple, say, the fine and jail time for the cross burner. The Supreme Court ruled last term that "enhanced" punishment for "hate crimes" is constitutional.

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