TRANSCRIPT: Bodily Harm is Coming

Is burning a cross so intimidating as to not deserve First Amendment protection?

Joey Sechrist at his home in Cana, Va. (Photo by Matthew Schwartz)

SECHRIST: We wasn't here to kill nobody. We wasn't here to run nobody off. We wasn't here to intimidate nobody. We were just here to initiate a few new members, move on out of here to the next rally. … They're not really haters. I wouldn't flag ’em as haters. I just flag ’em as a religious group that believes in what they believe in.

MIKE: A few hundred yards off of Brushy Fork Road in Cana, Virginia, there is a field at the edge of the woods.

SECHRIST: This is where I grew up.

VUOLO: This is my colleague, Matt.

SCHWARTZ: Hey there Joey.

SECHRIST: How you doing, my brother?

VUOLO: My buddy, Matt.

SCHWARTZ: Nice to meet you.

SECHRIST: Yes sir, buddy.

SCHWARTZ: I'm Matt.

SECHRIST: Yes sir. Yes sir. Joey Sechrist. How you all doing today?

MIKE: In the summer of 1998, several chapters of the Ku Klux Klan gathered here with the permission of the property owners, Annie Lee Sechrist and her son Joey.

SECHRIST: My name is Joey Sechrist, and I've lived here in Cana, Virginia for 55 years.

MATT: Joey still lives here. He’s not a member of the Klan, but he was present that night when they held a rally. When they burned a giant cross.

SECHRIST: I'll go out here and show you. Do you all like to walk?

VUOLO: Sure, sure.

SCHWARTZ: Yeah.

SECHRIST: Okay, come on here.

MIKE: What happened here more than 20 years ago led to a Supreme Court battle over the First Amendment. Is cross-burning constitutionally protected speech? I’m Mike Vuolo.

MATT: I’m Matthew Schwartz.

MIKE: And this… is Unprecedented.

MATT: We wanted to see for ourselves where this infamous cross-burning took place. So we headed down to Cana, Virginia. It’s a rural town of rolling farmland on the border with North Carolina.

MIKE: About 1200 people live in Cana. It’s not quite 100 percent white, but it’s close.

SECHRIST: This is a growed-up area down in here. We're just old rednecks. We don't care about nothing.

VUOLO: Am I going to get any ticks here? I don’t have long pants on.

SECHRIST: Yeah, you probably will. They like them kind of shorts.

VUOLO: So what, I gotta check my legs later?

MATT: The Keystone Knights was a Klan chapter out of Johnstown, Pennsylvania. It was founded in the early 1990s by a guy named Barry Black, who went by the title Imperial Wizard. Mr. Black died recently, but here he is some years ago talking to a Duke University professor about why he made the six-hour trip to Cana:

BLACK: What I was doing down there was starting a new den—or starting a new klavern—giving the people the books to read, telling the people what we expect of them and how we want them to become pillars in their community.

MIKE: I asked Joey Sechrist how it was that Barry Black and the Keystone Knights came to hold their proselytizing rally at his place.

SECHRIST: How it got started was there was a friend named Jimmy Jones. And he was a good friend of me and mother's, and he approached us one day out here, and said, "What do you all think about us having a Klan rally?" He said, "I got some good friends in Pennsylvania that wants to come to this area, have a rally, a get together, initiate new members." They’ve always been nice to me and that whole crew, I mean, they were hundreds of them, all just like my brother. Really, really nice people.

VUOLO: So you didn't participate in the rally, but it sounds like you shared their beliefs?

SECHRIST: I do. I do share their beliefs. I'm a strong believer of them. I really am. I'm a strong believer of ’em. Proud supporter. Very much so. I can call any of ’em any day, any night, any time, and they'll be at my aid within the next day if I really needed it. They're just that kind of people.

MIKE: Two longtime members of the Keystone Knights are still around. We met them at their double wide trailer in Pennsylvania on a summer afternoon. They had fans running to keep us all cool, as they talked about that day in Cana.

L PENROD: Lisa Penrod and I was the woman commander and the Imperial Secretary for the Invisible Empire International Keystone Knights of the Ku Klux Klan.

D PENROD: Donald Penrod and I was just a member.

VUOLO: So there was a group of you that went down and what did you do when you got there?

L PENROD: Got things ready and set up.

VUOLO: Set up for what?

L PENROD: Our ceremony that night and the speeches.

D PENROD: We had that cross to put together and get it hooked up. It was in sections. I had it made to screw together. You wrap it with burlap and stuff and light it.

VUOLO: You wrapped it with burlap?

D PENROD: Burlap and soak it with diesel fuel or kerosene with motor oil in it.

VUOLO: And so what did you expect was gonna happen that night? You thought it was gonna be just like any other rally?

L PENROD: Right. Well, there were probably, what, six, eight speakers, got up and talked about, you know, separating the races and keeping the blood pure and, I mean there was no derogatory talk or anything like that. It was just a normal, normal night.

SCHWARTZ: So after the speeches were done, what happened that night?

D PENROD: Went to the ceremony and lit the cross.

MIKE: The way the Penrods talk about the Klan, they make it sound like just another social club. They had meetings twice a month. Ran clothing drives for the needy.

MATT: And wore robes and held cross-burnings. Like the one in Joey Sechrist’s field.

VUOLO: And where exactly was the cross?

SECHRIST: Well, I’ll tell you something. That cross, I don't know about the 100% spot, but I can put you close. This has all been cleared off here. This was all woods here at the time. This has all been cleared off. But that cross, I mean, take a look around you how far we are from the road. I mean, we're off the road I mean 300 yards? I mean, basically back in the woods.

VUOLO: Yeah.

SECHRIST: But it's right in this area right in here. It's like a 25-foot radius right here. It was here, in this area here.

VUOLO: What did it look like when it was lit up?

SECHRIST: You ain't never seen one?

VUOLO: No.

SECHRIST: Have you ever looked on the internet?

VUOLO: I've seen it on the internet, yeah.

SECHRIST: That's what it looks like.

VUOLO: What does it look like in person?

SECHRIST: Well, I ain't never seen but one live, and it was right here. That's the only one I've ever seen live. The beautifulest thing in the world to the Klan.

SCHWARTZ: How about to you?

SECHRIST: I love it.

L PENROD: We all lit the cross. We all had torches. And went through the ceremony and then at the end the Imperial Wizard would light the cross and then we would all take our torches and put ’em on the bottom.

D PENROD: You light it at the bottom and there's streamers like this that go out to the two arms of the cross and light them.

BLACK: Once the cross is completely lit I’d say, “Klansmen! Salute!”

MIKE: Here again is Barry Black, talking to that Duke University professor.

BLACK: You’d hear music in the background, playing Amazing Grace. And you’ll hear someone say, “Behold! The fiery cross! Still illuminating the sky brilliantly.”

L PENROD: It’s beautiful. It really is beautiful.

SCHWARTZ: What does it mean to you? Like, why do you light up the cross?

L PENROD: Fire purifies. The cross itself does not burn, even the wooden crosses, they don't burn. Just the wrapping burns and it shows the purity. Because fire purifies gold. So that's the symbol. You know, it's racial purity.

SCHWARTZ: So, the cross is lit, illuminated. And at what point did things start changing?

D PENROD: It was all over. That's when the sheriff's department showed up.

MATT: Back in the field, Joey points to the spot where a police vehicle had been parked.

SECHRIST: And if you’ll look, right over the top of that house, right over there in yonder, you'll see a big oak tree right over there. See that twin oak tree?

VUOLO: I do.

SECHRIST: That's where he backed his patrol car in and watched the whole thing until it's all over with.

CLARK: My name is Rick Clark. At the time of this case, I was a lieutenant in the Carroll County Sheriff's office.

MIKE: At that big old oak tree is where we are now with Rick Clark, who was watching the rally, listening to Carolina Beach Music on the radio like he always did.

CLARK: Ms Grace is considered the best Beach Music tune of all times, and I played it all the time. One of the neighbors called, I don't recall who, and said there was a large gathering there. So we responded. And they weren’t doing anything wrong so we didn’t go over there.

VUOLO: So you stayed back over here where we are now.

CLARK: Right. And we could see the people.

VUOLO: What did you see when you looked out there? Describe the scene.

CLARK: There was probably 50 to 100 people milling about. I think somebody was giving a speech or doing something, talking.

VUOLO: And so once you saw the cross go up, what did you think?

CLARK: It was the class six felony to burn a cross in Virginia, at that time.

VUOLO: And you knew that because you knew the code?

CLARK: Yes.

SCHWARTZ: How did you know the code? ’Cuz I heard a rumor that you are sort of a bookish guy and you like to spend your free time reading through the Virginia Code book.

CLARK: That might be the truth.

MATT: Section 18.2 of the Virginia Code: "It shall be unlawful for any person … with the intent of intimidating …  to burn … a cross.” The law goes on to say that if you do burn a cross, it is presumed that you did it with the intent to intimidate somebody.

VUOLO: And so when you saw the cross lit up, you got in the patrol car and you drove up this road towards the property and what did you do?

CLARK: We approached. I said, "Who lit the cross?" And Black said, "I did." And I placed him under arrest for cross burning.

VUOLO: Put handcuffs on him.

CLARK: I did. And Black immediately started into this rhetoric that the good white people here were tired of, uh, he used a racially derogatory term about black people holding hands with white women walking up and down the sidewalks. And I just asked him, I said, "Have you seen a sidewalk since you've got here?" And he said, "No.”

CLARK: I said, "That’s because there are no sidewalks in this community.”

SCHWARTZ: Had you ever seen a cross burning before?

CLARK: No.

SCHWARTZ: What was it like?

CLARK: It made me sad that there was somebody that represented that kind of hate in the county where I live and I was raising my children at the time.

MIKE: We asked the Penrods if they ever intended to intimidate anyone when they lit the cross.

SCHWARTZ: I wonder, of all the times you lit the cross, did you ever do it to intimidate somebody.

L PENROD: No, no.

SCHWARTZ: You always just did it for your religious ceremony?

L PENROD: Yes.

D PENROD: Where I ever was, there was really nobody around to intimidate.

MATT: We posed the same question to Joey Sechrist.

SCHWARTZ: Did you think it seemed intimidating?

SECHRIST: Shit, no. I'd have another one today. I'd have another one. No questions asked. We wasn't here to kill nobody. We wasn't here to run nobody off. We wasn't here to intimidate nobody. We just here to initiate a few new members. Move on out of here.

SCHWARTZ: Because you know, the officer, somebody said that a couple of black people were driving through.

SECHRIST: Oh horseshit. You couldn't melt down a black man and pour him out around a Klan rally. Why was he doing here anyway? Only reason he'd been here is trying to get in.

SCHWARTZ: Well, I guess the … 

SECHRIST: Try to get to be a member.

SCHWARTZ: I guess what they said is, like maybe somebody driving past—where's the closest road?

SECHRIST: Right there. About 400 yards there.

SCHWARTZ: Yeah, that's pretty far.

SECHRIST: Now, I will tell you this. You all can say what you want to, and you'll find out when you get on down the road that I'm telling you the truth. It sounds stupid. Don't laugh. Wait ’til you leave, you laugh. Barry Black had a black lawyer. 

SCHWARTZ: David Baugh.

SECHRIST: David Baugh!

SCHWARTZ: Yeah.

SECHRIST: Yeah. He's a black lawyer.

VUOLO: What do you think about that?

SECHRIST: (laughter) That's pretty crazy, man. No shit. I don't know. You know, I heard about that, when all that stuff went on, I heard about it, and I thought, "What the hell, man?" That blows my head right off, man. No shit.

BAUGH: There's something unique about the legal profession where the public thinks whenever you represent someone, you condone their behavior.

MIKE: This is attorney David Baugh. He worked with the Virginia chapter of the ACLU.

BAUGH: People assume that if you represent a pedophile, when the trial is over, you put on a raincoat and go to the playground. No, not that at all. You represent someone for what they are accused of doing. Plus, I realized from my education and the philosophy of the law, that for every right that you have, there is a corresponding responsibility. So, if you want the right to speak freely, that means you have to listen to a lot of stupid garbage. You even have to defend people who say stupid garbage so they can say stupid garbage. A lot of people assume that under the First Amendment you have a right not to have to hear things that make you uncomfortable. And that is not a right. People have the right to say things to you that make you uncomfortable, as long as there is no imminent threat of serious bodily injury or death. I can understand how come a white lawyer might not want to be associated with the Klan, but no one's gonna accuse me of being a closet Klansman.

SCHWARTZ: Now hang on. This is radio. This is a podcast right now, so people might not quite understand what you're getting at. Why might he not want your assistance?

BAUGH: Well, he's a Klansman.

SCHWARTZ: Okay.

BAUGH: I'm African American. Oh, I'm African American! That's right.

BLACK: When I walked into the courthouse, I just looked at him.

MIKE: Once again, Barry Black.

BLACK: He says, “Is there something wrong here?” And I says, “You’re David Baugh?” He said, “Yeah.” I says, “You’re black.” He said, “Yeah.” I said, “Are you gonna fight for me? Are you gonna give me 151 percent?” He says, “I’m not gonna change your views.” He says, “And my views about you aren’t the greatest in the world either.”

BAUGH: And then I went on to say, "Besides, when I look at you, I can just see the N-word just spilling off your lip buddy, so we're not gonna take warm showers, and be pals, and sing kumbaya. That ain't going to happen."

BLACK: He says, “But I will give you 151 percent. You have my word on that, sir.” He says, “I’ll defend you to the end.” And I says, “Good enough.”

BAUGH: Like most clients who are in serious trouble, he was cordial, but I assumed that I had the only life preserver and he was drowning. So, I don't know if he liked me or he liked my life preserver, but I had it. I had the ring buoy. So I'm flinging it, so he’s gonna grab it, and that's it.

MATT: Barry Black was convicted by a jury. He did burn a cross, after all, and the law, well you heard the former cop, Rick Clark. He said it was a felony. Barry Black was fined 25 hundred dollars. But David Baugh, and lots of First Amendment lawyers, continued to believe that Virginia’s statute was unconstitutional.

MIKE: After the break, we’ll talk about why that seemed so obvious to so many lawyers, and what happened when a certain Supreme Court justice broke his silence on the bench. Stick around.

SMOLLA: A fundamental principle of free speech law is that the government is supposed to be neutral in the world of ideas and in symbols—which is another way that we communicate ideas.

MATT: This is Rodney Smolla. After David Baugh represented Barry Black at the trial level, Smolla took over the case as it wound its way up to the Supreme Court. And he argued that if the government punishes you for displaying a particular symbol … 

MIKE: In this case, a burning cross.

MATT: A burning cross. If the government punishes you for that, then the government is deciding which ideas are okay to express. And that’s not what America is all about.

SMOLLA: In some countries of the world, it's a crime to show a Swastika—in Europe, because of the Nazi experience. In the United States, I hate it, but you can wear a Swastika. In the United States, you can wear just about anything you want. And so, so we argued that this law was void because of that.

VUOLO: Yeah, if you single out a symbol, then you're in a sense exalting it in a way, as either more sacred or more profane than other symbols. And we're not really supposed to do that.

SMOLLA: Right. The government’s not to ban them or give preference to somebody’s symbols. The whole point of our free speech tradition is you can be a communist, you can join the Klan, you can say I believe in the, in the views of ISIS and be protected under the First Amendment. You can't go farther and start down the road to doing bad things, but you can, in the abstract, be a bigot. As my friend David Baugh would say. You have a right to be a bigot.

MATT: Just like David Baugh, Rod Smolla was an ardent supporter of our First Amendment right to say things that are unpopular, offensive, even intimidating. And, just like David Baugh, he agreed to take the case.

SMOLLA: I was the classic ACLU liberal, pro-free speech lawyer that just repeated the mantra, "I can hate your message, but I defend your right to say what you want to say." And we can't go arresting people just because we are convinced that their message is evil. It's gotta be worse than that. It's gotta be some really close connection to violence. Either trying to incite people to engage in violence, so you're saying, "Come on, let's go do this bad thing." Or trying to threaten people. You're using your speech to truly, in a palpable sense, scare and threaten people directly.

The Klan guys weren't directing this to anybody, they didn't know anybody was around. The cross burning would've been visible from a highway, but that would've been random, whoever happened to pass by. So I knew that, and I knew the text of this law. I put two and two together. That's not a crime, that's protected under our free speech principles.

MATT: Is a burning cross, on private property, protected under our free speech principles? We’re about to find out.

STEVENS: We’ll hear argument now in Virginia against Black.

MIKE: Okay, so, the government is supposed to be neutral. In this case, Virginia is decidedly not neutral. It’s saying that a cross is, in fact, different from all other symbols. Here’s Justice Ruth Bader Ginsburg questioning the attorney for Virginia. His name is William Hurd.

GINSBURG: You have said that the burning cross  is a symbol like no other. And so this is a self-contained category. What about other things that are associated with the Klan? For example, the white robes and the mask? Are they also symbols that the State can ban, or is there something about the burning cross that makes it unique?

HURD: Justice Ginsburg, there, there are several things about the burning cross that make it unique. First, it is the symbol that the Klan has used to, to threaten bodily harm. The connection, if you will, in our history is, is between the burning cross and ensuing violence, not so much between people wearing white sheets and ensuing violence.

But in terms of, of delivering symbols and delivering threats, it really is unique. It says, it says: We're close at hand. We don't just talk. We act. And it deliberately invokes the precedent of 87 years of cross-burning as a tool of intimidation. And it's not simply a message of bigotry. It's a message that bodily harm is coming. And this is not something that we just made up. Cross-burning has that message because for decades the Klan wanted it to have that message because they wanted that tool of intimidation.

And so it rings a little hollow when the Klan comes to court and complains that our law treats that burning cross as having exactly the message that they for decades have wanted it to have.

MIKE: That was William Hurd back in 2002 at the Supreme Court. He was arguing on behalf of the Virginia law, saying that the state should be able to criminalize cross-burning completely. We spoke with Hurd recently.

SCHWARTZ: Bill, the lawyers for Barry Black say that they believe strongly in the First Amendment and the right to say things that are offensive. Do you believe in that right?

HURD: Oh, absolutely. Absolutely, and those who believe strongly in the First Amendment often have some disagreement around the edges, if you will. Now, there's no doubt that statutes can be passed to ban what the court calls a true threat. True threats are not protected by the First Amendment.

SCHWARTZ: Can you describe what a true threat is?

HURD: A true threat is a communication made with the intent of placing the listener in fear of death or bodily harm. Because that right there is something that the law should guard against.

MIKE: So is burning a cross so much of a true threat, so clearly a harbinger of violence, that the government should be able to single it out and ban it completely? You heard Joey Sechrist. You heard the Penrods. They say they never intended to threaten anyone. They say it was just an initiation ceremony.

MATT: But William Hurd and the state of Virginia, joined by the U.S. Justice Department, made the case that the burning cross is itself threatening. U.S. attorney Michael Dreeben is arguing that the very sight of a burning cross has historically been intimidating because it was often followed by actual violence. All of a sudden, in the middle of Dreeben’s argument, something unexpected happens.

TOTENBERG: So I was watching Dreeben have this conversation with Kennedy, who was the most absolutist First Amendment advocate on the court at that point.

MIKE: NPR’s Nina Totenberg.

TOTENBERG: And Dreeben is saying that the cross is a symbol of fear. And suddenly, I hear this voice from a place on the bench, I don't normally hear the voice. And it's a very different voice and it's Clarence Thomas.

THOMAS: Mr. Dreeben, aren’t you underestimating the effects of the burning cross?

TOTENBERG: Lo and behold, Thomas interrupted—pounded the table almost—and said, a burning cross in the United States of America with its history is very different than any other kind of symbol. He thinks that Dreeben is not going far enough, that he's not saying how terrifying a burning cross is to black people and that he is, that he's sugarcoating it.

MATT: Here’s Barry Black’s attorney, Rodney Smolla.

SMOLLA: The courtroom was already quiet, but it got quieter. I mean everybody was electrified and he goes into this almost Shakespearean soliloquy.

MIKE: Clarence Thomas never speaks. It makes the news when Justice Thomas speaks.

MATT: Yeah, which is what made this so memorable!

THOMAS: Now, it's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camelia and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. Isn't that significantly greater than intimidation or a threat?

DREEBEN: Well, I think they're coextensive, Justice Thomas, because it is-

THOMAS: Well, my fear is, Mr. Dreeben, that you're actually understating the symbolism and the effect of the burning cross. And indeed that it is unlike any other symbol in our society. There was no other purpose to the cross. There was no communication, no particular message. It was intended to cause fear and to terrorize a population.

MATT: Justice Thomas broke his years-long silence to suggest that a burning cross is not only the threat of terror. It not only precedes terror. A burning cross is terror. Here’s Virginia’s attorney William Hurd.

HURD: Justice Thomas interrupted with a question suggesting that this really was not speech at all. That this burning of a cross was an instrument of terror. And you could have heard a pin drop in the courtroom when he finished.

TOTENBERG: It was very powerful and very palpable that it changed the tone of the argument. And a case that looked like a slam dunk—we're going to strike it down and uphold the lower court—turned out to be very different.

SMOLLA: He put it like an historian, but it had that personal quality of an African American kid in Georgia seeing these cross burnings and the Knights of Camelia and he knew the history well.

MATT: Again, Rodney Smolla.

SMOLLA: And I'll tell you two things as this happened. First, Justice Stephen Breyer who sits next to Justice Thomas on the bench, put his arm on Justice Thomas’s back like "I feel your pain." So I saw that. And then I saw Justice Scalia looking at his close friend Clarence Thomas from across the bench. And I saw Justice Scalia's facial expression change. And then he looked directly at me with this pugnacious look.

And I couldn't prove it in a court of law, but I interpreted it as, "Wait till you get up here buddy." And I felt at that second that we'd lost the case. We went from me being certain we were going to win the case to me thinking, oh my goodness, everything has just been flipped on its head.

MIKE: So up to this point, the justices had heard Virginia’s argument, that cross-burning is an outright threat. Next up was Rodney Smolla, who, remember, is defending Barry Black and the Klan. He made a split-second decision to directly respond to what Clarence Thomas had just said.

SMOLLA: Kind of like a quarterback calling an audible. So I walked up to the podium and I said, “Justice Thomas, every word you said is true. Everything you said is correct, but the speech is still protected by the First Amendment.”

SCHWARTZ: So do you think that the questions addressed to you were different in tone or substance than the ones addressed to the other justices?

SMOLLA: Yes. I think to that point, the argument wasn't emotionally charged, and didn't seem to get at the core of our sort of identity. I thought the 30 minutes that I got were as raw as you get in terms of exploring what free speech means, the history of racism in America. Every justice was asking me antagonistic questions in the sense that they were looking for a way to rule against us.

(Montage)

O’CONNOR: But why isn't this just a regulation of a particularly virulent form of intimidation and why can’t the state regulate such things?

SOUTER: Isn't your argument an argument that would have been sound before the cross, in effect, acquired the history that it has?

GINSBURG: It’s attacking people, threatening their lives and limb.

KENNEDY: It’s a hundred years of history.

SOUTER: Isn’t it also a kind of Pavlovian signal? So that when that signal is given, the natural human response is not recognition of a message, but fear.

SMOLLA: And then Justice Scalia, it's like he said to Justice Thomas telepathically, "I am going to do everything I can to win this case." And he just came after me mercilessly, and his theme was that to burn a cross is indistinguishable from taking out a gun and brandishing a gun and threatening someone with a gun.

SCALIA: I dare say that you would rather see a man with a rifle on your front lawn. If you were a black man at night, you'd rather see a man with a rifle than see a burning cross on your front lawn.

SMOLLA: Your honor, I concede that. However … 

SCALIA: The whole purpose of that is to terrorize.

SMOLLA: As powerful as that point is, and I totally accept it ...

MIKE: Many of the justices seemed now to embrace this idea that a burning cross is like a weapon.

SMOLLA: So, it was the argument I was the most concerned with, that I feared the most. It's that so often the cross burning had been the forerunner of some evil Klan act. They would burn the cross and go out and commit a lynching, burn the cross and go out and engage in a bombing, burn the cross and go out and, and ride by, you know, a house to scare people. That it had become a kind of Pavlovian trigger for intimidation. And it had gathered through history enough connection to intimidation so that we could say it's always intimidating.

(NPR music)

SIEGEL: This is All Things Considered from NPR News. I’m Robert Siegel.

BLOCK: And I’m Melissa Block. The Supreme Court today upheld state laws that make cross-burning a crime, where the purpose of the burning is intimidation. NPR legal affairs correspondent Nina Totenberg reports.

TOTENBERG: The vote was 6-3 with no single opinion commanding a majority. Justice Sandra Day O’Connor wrote the bulk of the opinion. The First Amendment guarantee of free speech is not absolute, she noted, and in light of cross-burning’s long and pernicious history as a signal of impending violence, it can be banned IF it can be proved it’s aimed at intimidation.

MATT: The Supreme Court’s ruling was nuanced. Because they conceded that burning a cross can mean different things at different times. Here’s Justice Sandra Day O’Connor.

O’CONNOR: The act of burning a cross may mean that the person is engaging in intimidation or it may mean only that the person is engaged in core political speech. The hallmark of the protection of free speech under the First Amendment is to allow free trade in ideas. The protections afforded by the First Amendment, however, are not absolute and the Government may prohibit true threats. We hold that a State, consistent with the First Amendment, may ban cross-burning carried out with the intent to intimidate.

MIKE: So if the cross was burned to threaten … 

MATT: And the government can prove that … 

MIKE: Then it doesn’t get First Amendment protection.

MATT: Exactly.

O’CONNOR: While a burning cross does not always convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives, and when a cross-burning is used to intimidate, few if any messages are more powerful.

MIKE: Now, I believe the Virginia statute didn’t require that you prove intimidation. It basically said that all cross-burning is illegal. Because it’s all intimidation.

MATT: Right. And so Barry Black’s conviction was thrown out because simply burning a cross at your initiation ceremony—that’s allowed in America. The First Amendment allows abhorrent speech. Defending that abhorrent speech, however, has taken a toll on both David Baugh and Rodney Smolla. Let’s start with Baugh.

BAUGH: I don't know if I would take the Black case again, if it was today. I don't know.

SCHWARTZ: Why not?

BAUGH: To believe in the Constitution takes a lot of faith, just like believing in a religion takes a lot of faith. So, there comes a point where—maybe I'm getting older—but there’s a, I don't know if I could do it. I don't know if I could do it.

SCHWARTZ: Well, I still want to get to the why. I mean, you just spoke very eloquently—

BAUGH: I believe that in defending it, I'm becoming an enabler. It’s loss of faith. Any believer starts questioning their faith.

MIKE: David Baugh and Rodney Smolla are now questioning that Oliver Wendell Holmesian maxim: that if everyone speaks their mind, the marketplace of ideas will sort it out. That ultimately, eventually, the truth will prevail.

SMOLLA: I don't find the “truth” argument all that convincing anymore because I see bad stuff proliferate. It's kind of, it doesn't go necessarily with our factual experience. Particularly in this wild world we're in right now where people will say anything and everything and the fact checkers don't seem to matter; people just keep repeating, you know, the falsehoods. So I don't think we've abandoned our views on free speech, but I think—put it this way, they're more mature and they're more balanced.

MATT: It’s hard to keep the faith when lies are so loud, and the truth is so quiet. But what’s the alternative? Leave it up to the state legislatures to decide which speech is permissible and which is forbidden?

SMOLLA: You may be confident that if you're in charge, you're going to be able to tell the good from the bad. But, look, it's possible in a democracy like ours to have people in the government that will start banning stuff that you and I would find wrong to ban. In the end, for me, the tie-breaker is this idea: Do you trust your government to make these decisions? And the answer should be generally no, we don't. Because governments can make bad decisions for all kinds of bad reasons. And we don't want a truth court. We don't want, you know, Orwell’s truth squads making these decisions.

BAUGH: There are only two sides in a case: the client and the government. The Constitution is a brick wall that protects him from them. When they start taking down those bricks, they can get to me. That wall must be maintained.

MIKE: David Baugh and Rodney Smolla are living with a kind of cognitive dissonance, and really all Americans are. The First Amendment allows abhorrent speech and that keeps all of us free. 

MATT: Unprecedented was produced by me — Matthew Schwartz — and my co-host, Mike Vuolo.

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