Cross Burning as Hate Speech Under the First Amendment to the United States Constitution
Wilson R. Huhn
C. Blake McDowell, Jr., Professor of Law, University of Akron School of Law, US
B.A. Yale University, 1972; J.D. Cornell Law School, 1977; Professor Huhn is the author of the books ‘The Five Types of Legal Argument’ (Carolina Academic Press: 2008) and ‘Telling Right from Wrong Without the Help of God’ (Carolina Academic Press: 2008) as well as numerous essays and articles on constitutional law and jurisprudence. Huhn blogs weekdays at http://www.ohioverticals.com/blogs/akron_law_cafe/.
Cross burning is a particularly vicious form of “hate speech.” Some American states and cities have enacted laws prohibiting cross burning, and in two cases (R.A.V. v. City of St. Paul (1992) and Virginia v. Black (2003)) the United States Supreme Court has issued decisions regarding the constitutionality of those laws. These cases establish the principle that under the First Amendment hate speech is not punishable as a crime unless the speaker intended to threaten another person or the speaker intended to incite an imminent act of violence. Furthermore, the cases reinforce the principle that under the First Amendment a person may be convicted of a expressive crime only if the law under which the defendant was charged is narrowly drawn to prohibit only “unprotected” speech.