Mac Diva has a very interesting post on the racist blog Gene Expression. I read her comment while thinking about the recent Supreme Court decision in Virginia v. Black, the "cross-burning case."

Although I consider myself a First Amendment absolutist, I agree with the majority of the Court that a state can criminalize the act of burning a cross with an intent to intimidate.

(Justice O'Connor's opinion for the Court even manages to mangle the Court's intended holding. O'Connor says "the First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation." That should read "The First Amendment does not prohibit....," since the amendment prohibits rather than authorizes certain government actions.)

I disagree with Sandy O. when she says "a burning cross is not always intended to intimidate." In American society and tradition, the only expressive meaning of a burning cross displayed in public is a threat. The closest parallels I can think of are brandishing a weapon or making a slit-your-throat gesture, although even those actions -- unlike burning a cross -- could have "innocent" meanings (brandishing in self-defense; the gesture as a non-violent joke or comment).

My fear was/is that Justice Scalia and like-minded jurists could use the Court's holding as an excuse to expand restrictions on expressive speech they don't like, such as flag burning, which may offend but does not threaten. But thugs like Scalia don't bother with justifying their actions. (See Bush v. Gore, 121 S.Ct. 525 (2000).)