A few weeks ago, the Metro Spirit published a column by Austin Rhodes titled, “Supreme Court’s ‘Free Speech’ Hideously Inconsistent in So Many Ways.” In the column, Mr. Rhodes argues that the First Amendment should protect cross burning in the same way that it protects the burning of the American flag.
Rhodes attempts to point out the supposed inconsistency of the United States Supreme Courts’ past rulings on freedom of speech. He writes, “In what has to be the mother of all contradictions, the same U.S. Supreme Court that has ruled American flag burning is indeed ‘protected free speech’ also declared a while back that cross burning is, in fact, not.” Rhodes adds, “While burning a flag only offends the patriotic men and women who fought under the darn thing, burning a cross offends minorities. Can’t do that.”
The implication is clear: The U.S. Supreme Court unfairly favors the sensibilities of minorities.
Interestingly, in 1992, the Supreme Court unanimously voted to overturn the conviction of a teenager that burned a cross on the lawn of a black family. In 2003, the Court found that Virginia’s statute against cross burning is unconstitutional. The Court concluded that cross burning alone does not constitute a criminal act unless intent to intimidate is proven.
These rulings do not support Mr. Rhodes’ suggestion that the Supreme Court is concerned about offending minorities.
Admittedly, the First Amendment is not absolute. Unprotected speech includes fighting words, obscenity, extortion, perjury, false advertising, and true threats. According to Wikipedia, “A true threat is a threatening communication that can be prosecuted under the law.” Wikipedia also notes that “true threats are not protected under the U.S. Constitution based on three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur.”
It stands to reason that an act that has typically signaled impending violence such as cross burning can fall into the category of true threats in at least some cases.
Mr. Rhodes goes on to state that it is “BS” to accept that cross burning “crosses the imaginary line between protected expression and actions that impugn the constitutional guarantees of life…”
Considering the extensive history of cross burning in America and its close association with targeted terrorist attacks, there is adequate reason to suspect that acts of violence will likely follow it.
Surely Mr. Rhodes can discern between free speech and a threat of violence. Americans are free to express themselves, but there are boundaries to constitutionally protected speech.
On July 8, 2014, WRDW News 12 reported: “A teenager is accused of threatening Austin Rhodes from The Austin Rhodes Show on Facebook, the Columbia County Sheriff’s Office said. The teen was arrested for terroristic threats.” The report continues, “The WGAC radio host called the Columbia County Sheriff’s Office around 11 p.m. Sunday night and told deputies someone threatened him on a Facebook thread.”
This incident raises an interesting question. Why did Mr. Rhodes contact authorities after a teenager expressed their thoughts and feelings via social media? Put simply, because it was a threatening comment.
Context matters, and it is the job of the U.S. Supreme Court to be faithful to the spirit of the law.
Regrettably, this is not the first time an individual has advocated for a policy that is detrimental to minorities under the guise of upholding the Constitution. Threats come in a variety of forms. Mr. Rhodes contends that the First Amendment should indiscriminately protect cross burning. He should keep that position in mind the next time someone expresses their thoughts via social media in ways that he finds threatening.
David Walker is a lifestyle photographer and graphic designer. He also publishes weekly essays and short podcast talks on his blog, TheAugustan.com.