This Article concerns the criminalization of cross burning. This act of symbolic expression sometimes communicates hate, inspires fear of impending bodily harm, expresses an ideology and solidarity with others, or encompasses combinations of these. In 1991, Edward Cleary defended a White juvenile, known in court documents as R.A.V., who had burned a cross on the lawn of a Black family. In that litigation, Cleary began his oral argument to the Supreme Court by posing this question: To what degree does abhorrence of cross burning justify banning it? That question still baffles us. Establishing appropriate boundaries for the protection of speech that can both intimidate and express an ideology constitutes a profound challenge for a progressive society committed to the twin goals of free expression and civil order.
Roger C. Hartley, Cross Burning – Hate Speech as Free Speech: A Comment on Virginia v. Black, 54 CATH. U. L. REV. 1 (2004).