A Few Questions About Cross Burning, Intimidation, and Free Speech

Abstract

This article is a critique of the Court's new category of "intimidating" speech and how that new category of speech fits into the series of ongoing judicial attempts to undermine basic First Amendment protections of radical political speech and dissent. Section one describes in more detail the many inconsistent themes of Virginia v. Black. Section two addresses the contradictions between settled doctrine regarding content and viewpoint discrimination, and the Court's willingness to uphold such discrimination against cross burners. Section three discusses yet another doctrine mangled by the Court's decision in Virginia v. Black: the overbreadth doctrine. Section four addresses the relationship of intimidating speech and the concept of the "true threat," focusing on the Supreme Court's consistent refusal to define the latter category and the continuing efforts in the lower courts to define a "true threat" in the face of the Supreme Court's silence. Section five addresses the heart of the matter: How can "intimidating" speech be denied First Amendment protection in light of the fact that several major First Amendment free speech cases decided during the last century dealt with speech that contained overtones of intimidation indistinguishable from those in Virginia v. Black?