“No one can deny that cross-burning is criminalized solely because of the message it conveys. And it’s clear from the justices today that the more they think about this message, the madder they get. Well, doesn’t that prove Smolla’s point? That this statute exists only to censor one particularly virulent, hateful message? Not quite, if the justices can massage this”message” into a “threat,” as they appear inclined to do. There is a reason we keep talking today about things that happened 100 years ago; it’s because cross-burnings still symbolize and celebrate that terror and violence, even when they no longer actually threaten it. Oddly, at least for the court, the reminder of a past threat seems to be enough.”
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