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A lawyer-reader agrees with me:

Jonah,

You might add in your response to Mike Potemra that he’s not on Scalia’s side in this one, if the oral argument is any indication (and I think it was). Scalia repeatedly drew the obvious analogy of cross burning to waving a gun in the air (loaded or not) and screaming, “I hate blacks and will kill any of them that stick around here.” Nobody thinks its lawful to run around waving guns in the air and issuing such threats. All acts, at some level, are expressive and convey some idea. The act of cross burning is NOT, however, limited to merely expressing the idea that blacks should die. As several of Justices pointed out, Thomas most passionately, it is an act that is intended to terrorize blacks into leaving a community by making the consequences of staying quite clear. There is no similar “message” conveyed when stupid protesters burn a flag. Justice Scalia understood this as well as any of the Justices. And when the case is decided, perhaps 9-0 in favor of the cross-burning ban, I hope more First Amendment purists will understand it too.



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