Cross Burning Revisited: What the Supreme Court Should Have Done in Virginia v. Black and Why It Didn’t

The Supreme Court of the United States, in R.A. V. v. St. Paul, created a complicated framework of law that, despite years of case law to the contrary, would allow a court to hold a law banning cross burning to be constitutional, even if the law was not content-neutral. The ruling caused considerable problems in cases involving cross burning that reached lower appellate courts. In Virginia v. Black, the Court had the opportunity to resolve the problem, but refused to do so. Instead, the Court restructured the law related to intimidating and threatening speech, creating even more ambiguity.

Under the new rules, a court is required to determine when cross burning is intimidating and when it constitutes political speech. And even if the cross burning is considered to be political speech, the court must balance its political nature against a presumption that the activity is intimidating. This article traces jurisprudence related to cross burning from R.A. V. to Virginia v. Black and concludes that the Court should have held that all cross burning is political speech subject to the strict scrutiny rule.