O Say, Can You See: Free Expression by the Light of Fiery Crosses

Abstract

This Article presents a comprehensive, context-based theory which both places cross burning in its proper doctrinal framework and recognizes the history of cross burning as one of Ku Klux Klan-inspired terrorism directed at African Americans. The author prefaces critical commentary on the Supreme Court's decision in Virginia v. Black with analysis of the full landscape of cross burning cases including another issue to which others have paid little attention - the ways in which state courts have negotiated First Amendment challenges to cross burning statutes. Thoroughly examining cross burning from each of these perspectives, the Article argues that cross burning should be treated as hate crime, which may be prosecuted, rather than as constitutionally protected hate speech.

Keywords: First Amendment, cross burning, race, integration, hate crime, hate speech, minority rights, extremists, racism, Ku Klux Klan, Virginia v. Black