Virginia V. Black - Dissents

Dissents

Justice Clarence Thomas argued that cross-burning itself should be a First Amendment exception, as others have argued regarding flag-burning (see Justice William Rehnquist’s dissenting opinion in Texas v. Johnson), due to the historical association of cross-burning with terrorism. "his statute," Thomas wrote, "prohibits only conduct, not expression. And, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point."

Justice David Souter argued that cross-burning, even with the proven intent to intimidate, should not be a crime under the R.A.V. v. City of St. Paul precedent because of "the statute’s content-based distinction."