Against Cross Burning

by Michael Potemra

I have been busy, so I apologize for responding rather late to Jonah’s comments earlier today on cross burning. Cross burning as a racial threat is morally evil; as a specific threat of violence, it may actually already be illegal, depending on what the law on harassment and incitement to violence is in various jurisdictions. So we need not use our common opposition to cross burning as an opportunity to poke holes in the First Amendment (I, for the record, am not eagerly searching out opportunities to do the latter). Jonah brings up the very helpful analogy of flag burning. Justice Antonin Scalia voted to protect the right to burn the flag, in the key vote in a 5-4 decision; Scalia knows that the mere fact that people find certain speech offensive does not prove that it lacks constitutional protection. I will also cheerfully agree that not all speech “makes democracy richer or better”; that doesn’t mean it’s OK to ban it. I’ll stick with Scalia on this one.

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