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As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that a State will prosecute -- and potentially convict -- somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect. Id. At 556.
In his dissent, Justice Thomas disagreed with the Court's reasoning. In fact, Thomas accuses the Court of ignoring the realities of cross burning. Justice Thomas points out that "in every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred and the profane." Id. At 388. Thomas points out that the Ku Klux Klan is a terrorist organization, "which, in its endeavor to intimidate, or even eliminate those it dislikes, uses the most brutal of methods." Id. At 389. Thomas points out, "in our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence." Id. At 391. In fact, Thomas points out that the statute was not aimed at punishing offensive beliefs. In contrast,...
Id. At 394. Instead Va. Code Ann. 18.2-423 was enacted to prevent the very real intimidation felt by those who witnessed a burning cross. In conclusion, Thomas determined that the statute "prohibits only conduct, not expression. and, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point." Id. Thomas concluded that because a burning cross had become merely a method of intimidation, it fell outside of the realm of speech and was not entitled to any protection under the First Amendment.
Whether or not certain types of speech are entitled to First Amendment protection can be a very complicated issue. What is clear is that not all forms of speech are entitled to protection under the First Amendment. In fact, although the Black court determined that Va. Code Ann. 18.2-423 was unconstitutional, it did so because the statute permitted an illegal presumption, not because burning cross that are intended to intimidate are entitled to Constitutional protection. If anything, the decision in Black makes it clear that the U.S. Supreme Court will no longer permit hate groups to hide behind the First Amendment when using speech or symbolic speech to threatened and intimidate.
References
Brandenburg v. Ohio, 395 U.S. 444 (1969).
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
Texas v. Johnson, 491 U.S. 397 (1989).
U.S. Const. amend. I.
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