Download this Paper Open PDF in Browser

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

56 Pages Posted: 23 Jul 2008 Last revised: 12 Jul 2013

Jeannine Bell

Indiana University Maurer School of Law

Date Written: 2004


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

Suggested Citation

Bell, Jeannine, O Say, Can You See: Free Expression by the Light of Fiery Crosses (2004). Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 39, No. 2, 2004; Indiana Legal Studies Research Paper No. 259. Available at SSRN:

Jeannine Bell (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-856-5013 (Phone)
812-855-0555 (Fax)

Paper statistics

Abstract Views