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Striking a balance on hate speech.

Article Excerpt
Is some speech so inherently offensive that it should be subject to government prohibition? Few topics in constitutional law have received more scholarly attention in the last two decades than the government's power to regulate hate speech to protect audiences from harassment and intimidation. The U.S. Supreme Court's recent decision in the case of Virginia v. Black, which concerned the government's power to punish cross-burning, offers important clarification in this area. (1)

The Court was clear that no symbol, no matter how offensive, can be deemed beyond the pale and outside the scope of the First Amendment's protection. But the justices were equally emphatic that the government may punish a person who burns a cross to intimidate another. The decision struck a balance between protecting speech and safeguarding racial minorities from harassment.

Black involved two companion cases, and their factual differences are key to under standing the Court's decision.

One involved Barry Black, who led a Ku Klux Klan rally in Carroll County, Virginia. About 25 to 30 people attended the rally, which was held in an open field with the permission of the owner. The field was relatively isolated, though it was visible to some residents in the area. A large cross was placed about 300 to 350 yards from the road and set on fire.

The other case centered on Richard Elliott and Jonathan O'Mara, who burned a...