Burning Questions
This is a reply to comments from Jan Haugland (Secular Blasphemy) and the Raven on a post by Rayne (Today), started by Jan’s original post on whether cross-burning should be made illegal.
Gentlemen, I am sorry to see so much formidable intellectual energy wasted in service of the indefensible. You defend cross-burning as merely objectionable symbolic speech, protected as all expression should be in a free society. I sympathize with your impulse to tolerance, and indeed I will gladly defend the right of any racist, bigot, and idiot to publish their hateful propaganda between covers, illustrate it in pictures, or broadcast it over the media, so long as their ideology takes the form of a debatable proposition. After all, the whole public interest in free expression is to allow the widest range of ideas to compete in the “marketplace” so that the best can rise to the top.
The problem is, cross-burning isn’t speech, it isn’t art, and it is not intended as a contribution to any kind of a dialogue. It is the well-known calling-card of groups and people who, in recent history, have conducted a systematic campaign of murder and intimidation against United States citizens. It is an incitement, a call-to-action for savage bigots to go out at night, in disguise, to drag innocent people from their homes and hang them from trees or worse. In most contexts, it has no intellectual component and is intended to speak only to the most violent, primal emotions. Let's be clear: the purpose of cross-burning is not simply to intimidate a victim or propagate racist ideology: it is to create an atmosphere conducive to racial violence. No civilized society can or should be obliged to acknowledge this as legitimate expression, and we should not be tempted to refrain from making a judgment against an activity that has been amply demonstrated to have no social, intellectual or moral value.
As to the Raven’s narrower point about whether cross-burning should be allowed on private property, I again agree with the admirable impulse to keep the government at arms’ length from activities that occur among consenting people and away from public view. But there are laws against keeping noxious chemicals or raw sewage on private property because their presence, whether known or not, is likely to harm the neighbors. The rationale for these laws is the protection of public health – and the rationale for banning cross-burning in private can and should be public social health. If society can decide cross-burning is harmful in public (and I argue it can), then it is harmful in the same ways when done on private property.
I’m sure it is possible to construct theoretical scenarios where cross-burning is an innocent activity, or has artistic value, or represents ideas wholly different from those of white supremacy. But to do so is to deny the overwhelming historical record that associates this symbol with violence, intimidation and bigotry. Prosecution of laws against cross-burning should account for mitigating circumstances, but not so much so that they create a pretext that defeats the purpose of keeping this offensive ritual out of the public view.
It’s worth going to such lengths to ban the symbol because it is part of a larger public commitment to ban racist violence. I strongly believe that society is better served by this policy, as I’m sure you all do too. But if you’re going to be serious about it, you have to confront racist activity with the force of law and acknowledge that some symbols – such as cross-burning, or brandishing a swastika – have the effect of actuating powerful emotional responses, often with tragic consequences. Banning the symbols is part and parcel of banning the activity. If you fail to do so out of a general fear of using state power against any form of expression under any circumstances, you leave the open society defenseless against predators who care little for anyone’s liberties. Everyone has their own limit where they draw that line. Defending the rights of people to create a spectacle whose historical purpose has been emotional incitement to violence is where I draw mine.
4:12:49 PM 
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