Virginia Burning - Are cross-burnings speech or violence? By Dahlia Lithwick: Once in a while, a case comes along that makes a Supreme Court reporter proud to be involved, even tangentially, in the life of the high court. [....] Out of nowhere booms the great, surprising "Luke-I-am-your-father" voice of He Who Never Speaks. Justice Clarence Thomas suddenly asks a question and everyone's head pops up and starts looking madly around, like the Muppets on Veterinarian Hospital. "Aren't you understating the effects ... of 100 years of lynching?" he booms. "This was a reign of terror, and the cross was a sign of that. ... It is unlike any symbol in our society. It was intended to cause fear, terrorize."
     Dreeben, who fears he has somehow been insensitive, tries to recover. "It was used to intimidate minorities ..." he begins. "More than minorities," booms back The Voice. "Certain groups." It's not clear what, precisely, has set Thomas off about Dreeben's presentation or why he's attacking the deputy SG rather than the guy defending the Klansman. But as quickly as he wound up, he winds down, and resumes his standard posture of staring fixedly at the ceiling.

You know ... for those of us of a more liberal bent, it's severely tempting to wonder just where this historically cognizant Justice Thomas has been during his entire term, when various racial issues have come before the court. This would be, of course, an entirely unfair question to ask, so one shall not ask it.

But one is severely tempted.

Justice David Souter replies that burning crosses have become as potent a symbol as guns, engendering a "Pavlovian" response. Smolla replies that lots of symbols are potent—the flag, the Star of David. Replies Souter: "But they don't make you scared." (Unless you're a Klansman, I suppose.)
     "I daresay," cuts in Scalia, "if you were a black man you'd rather see a man with a rifle on your lawn than a man with a burning cross."

Speaking as one who has actually experienced the rifle part of the equation, and who has relatives who have experienced the burning cross part (in Albuquerque, no less -- they were as much amazed that such a thing would happen in the city at all, especially in the relatively affluent 'burbs as they were frightened, really) ... it's something of a wash. On the one hand, the rifle promises more immediate harm; burning crosses tend to be "get out while you can or we will harm you." (Unless, of course, the burning cross is done by men with rifles, in which case you get a lovely two-fer!)

It's going to be interesting to see what happens with this. Technically, if they go with normal First Amendment jurisprudence, the result may be that while the justices will find the speech reprehensible, nonetheless, it may still be protected speech. (And if that is the result, no matter what the vote -- I'm thinking possibly 6-2, or 5-3, since Rehnquist isn't there to participate -- then the opinions issued will be bitter indeed.) On the other hand, they may find that the immediate or deferred threat component of the speech -- and there clearly is one -- is significant enough that it overrides the protected aspect of the speech and makes it prohibited. After all, there exists no constitutional right to threaten bodily harm and get away with it.