An editorial in yesterday's New York Times with the title "Cross Burning & Free Speech" called for the U.S. Supreme Court to uphold a Virginia statute making cross burning a crime.
That's not the surprise. The surprise was the tone of the editorial which was captured in the first graf:
"Courts must be especially careful reviewing statutes of this sort because of the danger that freedom of expression may be wrongly curtailed.
Robust political expression, even of odious perspectives, is central to our way of life"
The Times points out that the Virginia statute requires that the act of burning a cross be done "with the intent of intimidating any person or group of persons." That is to say, burning a cross without threatening or promising physical harm, should be protected in the same way as a neo-Nazi march through a largely Jewish neighborhood of suburban Chicago.
Speech which only serves to anger the listener or viewer is protected. Speech which is intended to intimidate (or incite others to do harm) is clearly not.
Which brings us to the continuing saga of Senator Trent Lott (R-Miss).
To BRIEFLY review the bidding, Sen. Lott, in his remarks at the 100th birthday celebration of Strom Thurmond, praised Thurmond's 1948 presidential campaign which was conducted under the banner of the States Rights party which was widely recognized as an organization devoted to protecting the rights of Southern states to continue the loathsome practice of legalized segregation.
But let's apply, what from this point forward will be known as, The Times' Test of Protected Speech:
Was Mr. Lott attempting to intimidate or incite others to do bodily harm to "a person or group of persons?"
No. Obviously not.
Was Mr. Lott's remark "odious" in its perspective?
Yes, as anyone watching understood instantly.
Was Mr. Lott's intent even to anger a person or group of persons?
No. Even though he thoroughly succeeded in doing just that.
Is, therefore, Mr. Lott's speech "protected" under the First Amendment?
Yes. Absolutely.
Does it matter?
No.
There is an inbred distrust among Northerners for people named "Trent" or "Strom." Or "Newt."
This distrust is repaid in-kind by the way Southerners think about people named "Averell" or "Adlai." Or "Howell."
Notwithstanding the threshold error of Sen. Lott reprising a statement he had first uttered decades earlier, his staff showed an astounding lack of game-day instinct when they didn't even try to recover the verbal fumble, freezing in place for days, hoping the issue would go away - that the ref would whistle the play dead.
They should have scrambled after the gaff claiming loudly and immediately that their boss was obviously speaking about the erosion of the 10th Amendment in a time period which was bracketed by FDR at one end and LBJ at the other, not about the indefensible segregationist policies of the States Rights Party.
No one would have bought it, but an alternative interpretation would have been available for further review.
That portion of the Chattering Class which sits on the Right, has claimed - correctly - that the well-known double standard (ignoring the Robert Byrd use of the "N" word, while piling on Trent Lott's somewhat oblique reference to segregation) is once again in play.
So it is.
While Sen. Lott's speech is "protected" under the First Amendment, his position as Republican Leader in the Senate is not.
Senator Lott's inadvertent remark re-opened a wound which is so deep, so hateful, and so divisive that even after it heals - as it certainly will with time - it will leave an ugly scar.
Mr. Lott presents a constant distraction and a constant worry to his colleagues on both sides of the aisle, in both Chambers of the Capitol, and at both ends of Pennsylvania Avenue.
When the Senate opens for business on January 7, 2003 Trent Lott should step aside as the Republican Leader.
On the Secret Decoder Ring today: A link to the NY Times editorial, and to the second installment of GENEVA TRAVELOGUE, the text of the First & Tenth Amendments, and the Mullfoto of the day.
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