Law can't always produce justice, even for Klan

November 12, 2001|By Leonard Pitts

SO NOW it's legal to burn a cross in Virginia. The state Supreme Court recently struck down a 49-year-old statute that outlawed the practice. Unconstitutional, said the court.

Virginia's attorney general is considering an appeal, the NAACP is weighing its options and I'm thinking the court probably did the right thing. Or at the very least, the only thing it could. Any other ruling, it seems to me, would have violated the constitutional guarantee of free speech.

Yes, I'm aware the guarantee is not absolute. There's no free speech right to publish child pornography, for instance, or to yell "Anthrax!" in a crowded theater. There is also no right to threaten or intimidate, which is, some might argue, precisely what a burning cross does.

For my money, though, the question of threat depends on context. A cross burned anonymously on some black family's lawn carries a different weight than one burned by a bunch of Klan idiots rallying on a Klansman's private property. If the latter gathering can be outlawed because it's perceived as a threat, can't a Nation of Islam gathering be outlawed for the same reason?

More to the point, while it's tempting to write statutes specifically designed to make life difficult for the good ol' boys in the hoods, the lesson of the Virginia ruling is that there are limits to the effectiveness of that tactic. Meaning that the law is a blunt instrument, unable to make fine distinctions of morality and common sense. Human judgment can mitigate those failings to some degree, but the failings remain nevertheless.

Agents of intolerance have come to understand this, which is why they seek to exploit the protections of the law to their own hateful ends. What does it tell you that Virginia cross burners went to court in the first place? Professional bigots have internalized a fundamental lesson of the civil rights movement: You can use the system to change the system.

What shall the rest of us do in response? Go to court whenever some Klansman finds a loophole to weasel through? There will be days when that's necessary. But there'll be many others when it is not. This is one of them. I don't feel less secure because some moron is allowed to use his First Amendment rights to set a cross on fire.

I am not convinced that law can still be, as it once plainly was, the knife's edge of progress for black people. Truth is, most - not all, perhaps, but most - of what the law can do to help African-Americans achieve full citizenship has already been done.

The obstacles remaining between black folk and that goal are primarily based not in legalities, but in culture and custom. Which means the struggle will be won or lost not in the courtroom, but in the classroom, the living room, the locker room, the barroom, the boardroom, the newsroom and every other room where human beings gather to do business and interact. This is where our energy should be focused.

It's not that we should ignore the soldiers of intolerance. Not while they're working overtime to restore to white supremacy its former patina of respectability. I consider that a frighteningly achievable goal. And where law can reasonably interdict that goal, it should.

But law and justice are not the same. The one does not always produce the other. And where law cannot produce justice, it's a mistake to force it. Besides, there are other ways.

If you don't believe me, ask Missouri. The Show Me state spent five years in court fighting to keep the Klan out of its Adopt-a-Highway program. That's the one where a business or civic group gets to put its name on a road sign in exchange for keeping a section of the highway clean.

Missouri lost its case. There was no way under the law that it could bar the Klan from participating in the program. So last year, the state agreed to let the hate group pick up trash on Interstate 55. Or, as it has since been renamed: Rosa Parks Highway.

Sounds like justice to me.

Leonard Pitts Jr. is a columnist for the Miami Herald. Readers may e-mail him at leonardpitts@mindspring.com or call toll-free 1-888-251-4407.

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