Along the Tracks

Friday, April 11, 2003

A good day for lousy editorials

Latest in the rogues’ gallery is this Toledo Blade opinion on the U.S. Supreme Court’s Virginia cross-burning law decision.

The overall opinion held cross burning was not defensible speech when used to intimidate others, but was protected when used as “a symbol of group solidarity” by the Ku Klux Klan, assumably out of view of non-members. In the ruling, the majority held the half-century-old Virginia law was unconstitutional because it was too broad, outlawing all cross burning.

Now, I don’t necessarily have trouble with The Blade disagreeing with the decision itself - this is one of those gray areas, where free speech may step over the line, and where exactly to draw that line can be difficult. The court chose to err on the side of individual rights versus societal rights.

What gets me is that, as usual, The Blade’s logic is obtuse, filled with pretention, and amply sprinkled with accusations and blatant falsehoods. A very good argument could be made that cross burning is tantamount to inciting violence - not a protected form of speech. Unfortunately, The Blade makes not even a passing attempt to present that argument.

“... [W]hen is the intent of cross-burning not to terrorize and threaten certain groups and individuals, even if it happens out in the middle of a cornfield?” asks The Blade. However, that is the entire point of the ruling - that away from potentially terrorized observers, “out in the middle of a cornfield,” cross-burning may be despicable, but it is protected. It’s the editorial writer’s duty to explain why the court is wrong, not merely to dismiss the exception with a burst of incredulity.

The Blade’s least favorite justice, Clarence Thomas, becomes its quoted hero in his dissent from the majority - but here again, The Blade ignores the argument involved. Thomas’s dissent is entirely based on strict constructionism, stating this symbolic act - cross burning - was not being regulated in First Amendment terms. That is, “speech” defending segregation - a policy of Virginia when the cross-burning law was enacted - was not hindered by Virginia’s law, only activity which clearly infringed on the rights of others in society, i.e. terrorist activities such as cross burning. In other words, Justice Thomas looks at the time the law was enacted and the intent of the writers, and holds them up to constitutional scrutiny - rather than looking at today’s societal norms and judging the law purely on that basis. This is hardly a legal philosophy The Blade would normally endorse.

Next, The Blade attempts to turn this debate on free speech into a smear against conservatives:

“... [F]or the court to say that the conviction of a KKK leader who burned a cross at a Klan rally is unconstitutional is a stark reflection of a conservative court that hints at racial intolerance.”

That’s quite an accusation. The court’s decision was 7-2 on the unconstitutionality of the specific Virginia law (not 6-3 as The Blade claims) with justices Souter (a moderate) and Thomas (clearly a conservative) dissenting! What exactly is The Blade claiming here? Among the majority were John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer - generally considered liberals. Sandra Day O’Connor - a moderate by the standards of most court observers - wrote the majority opinion. How can The Blade possibly blame this on a “conservative court that hints at racial intolerance”?

Frankly, it can only be explained as race-baiting at its very worst.

The Blade follows with what Mickey Kaus would call the “To be sure ...” paragraph:

“Yes, the Klan must be allowed to have its rallies and spew its vitriol of hate. That is its First Amendment right. We disagree with its repugnant message, but not its right to express it.”

We are near the end of the editorial, and still no explanation why The Blade feels cross burning does not fall under this First Amendment right.

Finally, get this:

“... [T]he racially diverse America that the Klan is so intolerant of is the same America which ensures it can spout its outrageous diatribes. Even in a democratic society there’s such a thing as stepping over the line.”

Now, replace “racially” with “politically” and “peace movement” with “Klan,” and lo! and behold, we have precisely the same argument the right has been accused (most often unfairly, I feel) of making against some of the Saddam-defending antiwar activists. The Blade itself has gleefully impaled that straw man several times on its opinion pages. Yet, when it comes to a meat-and-potatoes Blade issue like stirring racial animosity, the newspaper’s editors are happy to jump on the “overstepping America’s tolerance” bandwagon.

There’s a reason I regularly transcribe The Blade’s masthead statement to “One of America’s Worst Newspapers.”

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