Does freedom of speech give the right to burn crosses?
Carrying our burning crosses
Being a radical libertarian means having to defend the rights of some pretty sick people. I am, of course, referring to our ongoing debate about whether burning crosses is a form of speech that should be protected by the US first amandment and similar free-speech protection in other countries.
The debate actually started here, including some good comments from the readers, pro and con. Here are some other references, in a somewhat messed up chronological order:
The Raven added some thoughts in the comments at mine's and Rayne, and also posted a lengthy discussion from his perspective, well thought out as always.
Rob ranted from Emphasis Added. His position is clear: racism has been proven indefensible and does not merit any defence. Cross-burning serves to "create an atmosphere conducive to racial violence," and this expression is not legitimate in civilised society.
Kriselda of Different Strings replied to Rob with a very interesting comparison to the use of the Swastika by some fellow Norse pagans. I concur. Symbols have a life of their own in culture. It is people who attribute meaning to rituals and symbolic expression. Over time, meanings do change.
It seems we mostly concur that burning a cross can be compared to speech. It expresses an idea. It is not comparable, as the justices discussed, to actually pointing a gun at someone, even if it will be felt as a threat, maybe at a comparable level. Pointing a gun is a clear, direct threat. Yes, it is an expression, more or less like the words "I will kill you", and neither should be able to hide behind a stature protecting freedom of speech.
It could, I guess, be argued that a public cross burning is a direct threat against people. Cross-burning directed at e.g. an individual family or a black neighbourhood I have few problems seeing it as an explicit threat, and I think if someone was able to specifically formulate a law targeting this activity, and only that, it could be justified.
I do, however, have a very serious problem with the argument that we all agree racism is bad, this has been settled once and for all, therefor we can prohibit any expression of racism outright. It would be a serious infringment on freedom of expression, and I suspect the fallout of such a statute would be far more intrusive than putting an end to some pointy-hatted cross burners.
My take is, as always, a broader issue. Who should determe what kind of expression is legitimate and what is not? At what point in history should we sit down and make a select group determine what kind of expression is legitimate and what is not? Look a century back in time, and think about issues like women's rights, gay rights, reproductive rights and of course racial tension. Let us assume that at some point we took the majority opinion in even the most enlightened (whatever that is!) societies and hammered it into law. Think Germany in the 30s, the US in the 50s.
Freedom of speech should be as broad as absolutely possible. In times of high tension, people can easily be persuaded to overreact, and the constitution is not there to protect the majority's sensibilities, but the rights of the minority, especially the most unpopular minority.
During WWI, when war hysteria raged North America, a small sect were persecuted and their leaders were sentenced to lengthy prison sentences for religious rants against the military. These sentences were later overturned by a courageous supreme court. That sect later became known as Jehovah's Witnesses. It is not untypical that freedoms are tested for the benefit of the rest of us by such extremist religions and groups.
During WWII, the supreme court gave in to war hysteria when a number of Americans were interned for no other reason than their ethnicity; they were Japanese-Americans. Unlike the German-Americans or Italian-Americans, their origin was visible, and racial prejudices did the rest.
These examples merely serve to illustrate that to prepare for hysteria and mob rule, freedoms should be broadened as much as possible, and the defenses against oppression should be strengthened and fortified. And that needs to be done, even if it means tolerating the free speech of some very unsavatory groups and individuals.
During WWI, when war hysteria raged North America, a small sect were persecuted and their leaders were sentenced to lengthy prison sentences for religious rants against the military. These sentences were later overturned by a courageous supreme court. That sect later became known as Jehovah's Witnesses. It is not untypical that freedoms are tested for the benefit of the rest of us by such extremist religions and groups.