Burning Crosses and Other Objects

April 12, 1994

The Supreme Court recently turned down an opportunity to assert that there is a constitutional right to burn a cross, a la the Ku Klux Klan. It had ruled in the past that symbolic speech -- burning a flag, burning a cross, etc. -- is an exercise of the freedom of speech guaranteed by the First Amendment.

But by its inaction last month the court left standing the convictions of two Illinois white men who burned a cross to intimidate white neighbors who had entertained black friends. They had been charged under an anti-arson law.

Other similar cases are pending in the federal appellate system, and the Supreme Court may be planning to use one of them to make a fuller statement about this issue. It needs to. Since a 1992 Supreme Court decision (5-4) overturning an anti-cross burning ordinance in St. Paul, Minn., federal and state judges have ruled in contradictory ways. Guidance from the top is needed.

In Maryland, a unanimous Court of Appeals threw out Maryland's law last year, even though that law did not flatly forbid cross burnings; it merely required that before anyone chose to so exercise this form of free speech he get permission from the owner of the property upon which the cross would be burned and notify the local fire department in advance. The court's theory was that having that set of rules for cross burners but not other burners was aimed at the idea behind the burning, not the burning itself.

Both the Maryland House of Delegates and the state Senate have passed legislation that tries to correct the law declared unconstitutional. This legislation requires property owner consent and advance notice to fire departments before one burns any "objects."

The new law, if signed by the governor, would make burning objects a violation of the Maryland Code's section dealing with hate crimes. That should have the same effect the old state law intended. Since the Supreme Court has also ruled that hate crimes may be punished more harshly than others, this bill may be as acceptable to state and federal judges' sense of constitutionality as that implied by the Supreme Court's recent action.

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