Of Burning Crosses and the First Amendment

Westchester County, an affluent, predominantly white suburb of NYC (where the Clintons, among others reside) was the site of a crossing burning on the night before Thanksgiving.  As of yesterday, a 21-year-old white man has been charged in with a hate crime. The suspect is the older brother of a girl who was involved in a fight at the local high school with a class mate, Timothy Artope, who is African American; the fight apparently included use of a racial epithet. The cross appeared on the Artope family’s lawn just hours after the fight. The report from the local news channel here describes the Westchester D.A.’s response to the family this way:

She praised Wesley and Clara Montague-Artope of Cortlandt for their family’s “dignified and courageous” response to the cross burning.

While I have no doubt that it’s true that these folks have responded with dignity and courage, such reports don’t go far enough to… ..understand the harm of such acts. Mari Matsuda and colleagues’ groundbreaking Words that Wound (Westview Press, 1993) is instructive on this point. In her chapter, “Public Response to Racist Speech: Concerning the Victim’s Story,” Matsuda writes:

“The negative effects of hate messages are real and immediate for victims. Victims of vicious hate propaganda experience physiological symptoms and emotional distress ranging from fear in the gut to rapid pulse rate and difficulty in breathing nightmares, post-traumatic stress disorder, hypertension, psychosis, and suicide. Patricia Williams has called the blow of racist messages ‘spirit murder’ in recognition of the psychic destruction victims experience.” (Matsuda, 1993, p.24)

Matsuda goes on after this passage to provide evidence that taking the victim’s story into account is a recognized standard in international law governing human rights and recognizes some of the ways this is in conflict with a maintream American (and absolutist) interpretation of the First Amendment which would protect burning crosses as “free speech”:

“The international community has chosen to outlaw racist hate propaganda, Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination states…. [requires] nation-states … to criminalize racist hate messages. Prohibiting dissemination of ideas of racial superiority or hatred is not easily reconciled with U.S. concepts of free speech. The convention recognizes this conflict. Article 4 acknowledges the need for ‘due regard’ for rights protected by the Universal Declaration of Human Rights and by Article 5 of the convention – including the rights of freedom of speech, association, and conscience. … The survival of Article 4, in spite of the controversy, indicates the overriding strength of the basic idea that promotion of racism is a serious threat to the protection of human rights. … The convention is not the only expression of the emerging international view. The need to limit racist hate messages is implicit in basic human rights documents such as the UN Charter and the Universal Declaration of Human Rights. Both documents recognize the primacy of the right to equality and freedom from racism.” (Matsuda, 1993, pp.27-30).

The international view that the right to equality (and the freedom from racism that implies) is a fundamental human right stands in contrast to the mainstream (white) American view freedom of expression is the most fundamental right protected under the Constitution. While first amendment doctrine in the courts is “notably confused” according to Matsuda, the core idea is that

“All ideas deserve a public forum, and the way to combat antidemocratic ideas is through counter-expression. When all ideas are voiced freely, we have the greatest chance of obtaining the right results.”(Matsuda, 1993, pp.32)

While the U.S. courts recognize a few limited categories of speech that take on qualities beyond expression (e.g., merchant’s lies about the efficacy of a product, a gang leader’s order to murder an enemy, threats of physical harm), the Supreme Court has twice upheld the “right” to burn a cross, a symbolic act steeped in racist terror, as “free speech.” In the R.A.V. vs. City of St. Paul (1992) decision, Justice Scalia wrote the majority opinion argued that the federal government could prohibit littering or arson on people’s lawns but that it could not single out racially motivated acts, such as cross burning, for criminalization. In the epilogue to Words that Wound, Matsuda and Charles R. Lawrence, III take up the Scalia decision and refocus the attention on the victim’s story:

“The Scalia decision …. is completely ahistorical and acontextual. The Jones family’s terror at finding a cross burning in their yard in the middle of the night is nowhere described. We are told that a ‘crudely made cross’ was burned in the yard of a Black family, but we are told nothing about that family or the hostility they experienced upon moving into their neighborhood. The Ku Klux Klan, lynching, nightriders, the Reconstruction, continuing patterns of hate crimes and racial violence in this country are never mentioned. Hate crime statistics and social science evidence showing increasing use of burning crosses and swastikas to harass ethnic and religious minorities are not mentioned. The many reported cases in which state and federal courts have struggled to protect schoolchildren, voters, homeowners, workers and other citizens from ethnic intimidation by cross burners are neither discussed nor cited. In effect, the opinion proceeds as though we know nothing about the origins of the practice of cross burning or about the meaning that a burning cross carries both for those who use it and those whom it terrorizes. ” (Matsuda and Lawrence, 1993, pp.134-5).

In the later decision, Virginia v. Black (2003), the Supreme Court once again struck down a statute against crossing burning, although this time did allow for the act to be a criminal offense if prosecutors can prove the intent to intimidate. If?!? What’s the non-intimidating way to burn a cross in someone’s yard? The official-for-public- consumption KKK description of this event is they are not “burning” a cross, but rather “lighting” a cross (to illuminate god’s principles, such as no race-mixing and white power), and clearly the Supreme Court here is in ideological alignment with the white knights. (There’s a lame joke to be made here about black robes and white robes, but I’m going to skip it.) Referring back to the R.A.V. decision, Matsuda and Lawrence once again:

“What we do learn from the opinion is that cross burning is not a ‘majority preference’ and that the ordinance reflects inappropriate ‘special hostility’ against ‘particular biases.’ The cross burners are portrayed as an unpopular minority that the Supreme Court must defend against the power of the state. The injury to the Jones family is appropriated and the cross burner is cast as the injured victim. The reality of ongoing racism and exclusion is erased and bigotry is redefined as a majoritarian condemnation of racist views. The powerful impact of the burning cross – the assault, the terror – is also inverted. The power is replaced in the hands of those who oppose racism. The powerful antiracists have captured the state and will use the state to oppress powerless racists.” (Matsuda and Lawrence, 1993, pp.135).

This seems to me the quintessence of what Joe has described as the white racial frame. Supreme Court Justices like Scalia can look at an act that is clearly, and inherently, an act of white racist terror directed at blacks and yet, interpreted through the white racial frame, this becomes inverted and it is the white racial state that’s under attack and rather than the family that had the cross burned on their yard. Scalia’s twisted logic is also emblematic of what philosopher Charles W. Mills has called the epistemology of white supremacy that is, as noted, “an inverted epistemology, an epistemology of ignorance,” which produces the ironic outcome that whites in general, are “unable to understand the world that they themselves have made” (Mills, 1997, p.18). When it comes to burning crosses, not seeing these as the racist symbols and tactics of racial supremacy that they are and criminalizing them for that very content, is out of step with international standards of human rights and, I would argue, is a much graver threat to civil rights and a democratic society than any limitations on “speech” by prohibiting such acts.


  1. James T. Smith

    “the right to equality…stands in contrast to the mainstream (white) American view freedom of expression is the most fundamental right protected under the Constitution.”

    I agree with this 100%. Whites value free speech more than minorities do.

    “a girl who was involved in a fight at the local high school with a class mate, Timothy Artope”

    I don’t think I need to state that burning crosses is wrong, but is it really worse than a male fighting with girls? You get the impression from the media coverage.

  2. Seattle in Texas

    Smith and Will, you guys wear sheets? Smith, you are the “minority” in this nation so your statement is contradictory in nature. I can think of a couple of symbols that can be burnt in the lawns white folks that would instill a similar type of terror. And there are groups of color that value the freedom of speech far more than the “whitest” and “purest” whites for reasons that you will never know….

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