The Supreme Court recently returned to a perennial issue that the Anti-Defamation League has wrestled with extensively: When does expression become a crime?

The case concerns a challenge to the constitutionality of Virginia's cross-burning statute. Virginia outlawed cross burning 50 years ago in an attempt to break free of its history of segregation by bringing the force of law to bear on those who tried to maintain segregation through the use of terror. The Supreme Court heard oral arguments in Virginia vs. Black on December 11, 2002 and is expected to issue its decision before the end of the 2002-03 term.

For years, ADL has been at the forefront of advocacy in support of cross-burning statues as well as broader-based hate crimes law. The League has argued repeatedly that threats are not constitutionally protected free speech. We filed in a brief in this case arguing exactly that point. While burning a cross may be an expressive activity, it can be criminalized when it is expressing the intent to intimidate your neighbors.

The last time the Court addressed this issue was in 1992. In R.A.V. v. St. Paul, the Supreme Court struck down a law that criminalized burning crosses (as well as certain other symbols) for the purpose of inciting racial hatred.

The Virginia statute is quite different. It does not attempt to criminalize racial hatred. It criminalizes using a burning a cross as a means of intimidation. ADL filed an amicus (friend of the court) brief in this case arguing that cross-burning statutes do not necessarily run afoul of the First Amendment as long as they are carefully drafted to outlaw only criminal acts and not unpopular political ideas.

The oral arguments were unusually spirited. There was an unexpected moment when Justice Clarence Thomas broke from his habitual taciturnity on the bench to express his concern that the discussion was "understating" the effects of "a hundred years of lynchings."

Thomas described the activities of the Klan as "a reign of terror" and the burning cross as "unlike any other symbol in our society. It was intended to cause fear, terrorize."

Thomas' statements dramatized ADL's position -- that the burning cross is not simply a political statement about the views of white supremacists. It is the use of a symbol as a threat. ADL argues in its brief that the government is free to punish that threat.

Justice Scalia asked Rodney A. Smolla, the University of Virginia professor arguing against the statute, the question implicit in ADL's brief: Why he believed that the government could outlaw "brandishing a weapon and saying 'you're next'" but not burning a cross. Smolla, who was arguing that outlawing cross burning violated the First Amendment because it was suppressing an unpopular political message, responded that the gun was a weapon. Scalia retorted: "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."

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