Justice Clarence Thomas' most memorable questions at oral argument took place on Dec. 11, 2002, in the case of Virginia v. Black, a test of a Virginia law that made it a crime to burn a cross with the purpose of intimidation. The Virginia Supreme Court ruled that the law violated First Amendment freedom of speech. At oral argument, Deputy U.S. Solicitor General Michael Dreeben appeared in support of Virginia's defense of the law. Thomas spoke after Dreeben answered questions from Justice Anthony Kennedy. Thomas cited an earlier case from Ohio, Capitol Square Review and Advisory Board v. Pinette, in which he had also made comments during oral argument about the Klan. The Virginia v. Black argument can be heard online.
JUSTICE ANTHONY KENNEDY: Is there ... is there an immediacy component to [the law] as there is with assaults?
MICHAEL DREEBEN: No, there is not, Justice Kennedy, and it's crucial to underscore why that is. The harms that can be brought about by threat statutes are not only putting somebody in fear of bodily harm and thereby disrupting their movements, but providing a signal that the violence may actually occur. It may not occur tomorrow, the next day, or next week, but it's like a sword of Damocles hanging over the person whose head ... who has been threatened. And in that sense it creates a pervasive fear that can be ongoing for a considerable amount of time.
JUSTICE CLARENCE THOMAS: Mr. Dreeben, aren't you understating the ... the effects of ... of the burning cross? This statute was passed in what year?
DREEBEN: 1952, originally.
THOMAS: Now, it's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and ... and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. Was ... 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 on ... of and the effect of the cross, the burning cross. I ... I indicated, I think, in the Ohio case that the cross was not a religious symbol and that it has ... it was intended to have a virulent effect. And I ... I think that what you're attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society.
DREEBEN: Well, I don't mean to understate it, and I entirely agree with Your Honor's description of how the cross has been used as an instrument of intimidation against minorities in this country. That has justified 14 States in treating it as a distinctive ...
THOMAS: Well, it's ... it's actually more than minorities. … And I ... I just ... my fear is that the ...there was no other purpose to the cross. There was no communication of a particular message. It was intended to cause fear -- and to terrorize a population.
DREEBEN: It absolutely was, and for that reason can be legitimately proscribed without fear that the focusing on a cross ... burning of a cross with the intent to intimidate would chill protected expression.
After the argument, several commentators said Thomas' line of questioning, by framing cross burning as a uniquely powerful act of terrorism, helped make his colleagues more comfortable about ruling that states may ban cross burnings performed with the intent to intimidate. The Virginia law itself was flawed, however, in the view of the majority. Thomas wrote a dissent, asserting that the Virginia law was constitutional and that, as he suggested during oral argument, cross burning has no communicative component that implicates the First Amendment.
