Vol. 5 No. 4 (April, 1995) pp. 124-126

BEYOND THE BURNING CROSS: THE FIRST AMENDMENT AND THE LANDMARK R.A.V. CASE by Edward J. Cleary. New York: Random House, 1994. 314 pp. Cloth $25.

Reviewed by Richard S. Randall, Department of Politics, New York University.

On the night of June 21, 1990, in a mostly white working class neighborhood on St. Paul's east side, a crude cross made from two chair legs and a scrap of terry cloth was planted and set ablaze on the lawn of Russell and Laura Jones, a black couple with five children, who had moved in months earlier. Police arrested two white youths, 17 and 18, who lived on the same street. They were shortly charged under St. Paul City Ordinance section 292.02 making it a misdemeanor to place

. . . on public or private property a symbol, object, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender . . .

The older youth pleaded guilty; the younger, Robert Anthony Viktora, a self-proclaimed white separatist, denied involvement. Because he was then a juvenile, only his initials, R.A.V, were used in the proceedings which followed. Two years and a day to the date of the cross burning, the U.S. Supreme Court unanimously found the ordinance to violate the First Amendment's guarantee of freedom of speech.

BEYOND THE BURNING CROSS is a compelling narrative of the case during those two years by Edward Cleary, who with a fellow lawyer, Michael Cromett, represented Viktora throughout. Both were part-time contractual attorneys with the Ramsey County Public Defender's Office, and Cleary's initial involvement was purely chance. He had simply been "on duty" to represent all indigent juveniles the morning on which the charge against Viktora was filed.

The case and the larger issue of restricting "hate speech" have divided the civil liberties and civil rights communities. Cleary is troubled by this, but argues, as he did before the Court, that the issue was not one of condoning or allowing to go unpunished acts of racial intolerance -- Viktora could and would have been indicted under other laws against trespass, terroristic threat, even arson -- had there been no "hate speech" ordinance. The issue that Cleary pleaded was whether government could punish the content of expression alone. The debate, as Justice Souter restated it during oral argument, was not about "the wisdom of eradicating intolerance, [but] . . . about the method of reaching that goal."

It was exactly this distinction which much of the general and attentive public failed to understand even, Cleary believes, after the Court's decision. As the case progressed and became more visible, Cleary became an increasingly unpopular figure at home. A life-long liberal Democrat who had represented scores of black clients as a public defender, he was shunned by many black lawyers and civil

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rights activists and by many indignant white liberals (all of whom seemed to forget that he consistently condemned the cross burning as a criminal act). Cleary received numerous threats and was the object of other harassment, in some instances extending to members of his family. His personal life became a shambles. He and his partner were accused in the press of using more than $100,000 of the taxpayers' money on the case. In fact, no public money was available for the appeal, and the two attorneys donated their time. The media, frequently hostile or critical, often had reportorial difficulty making the free speech issue clear.

There is something underdog-heartening about a local public defender getting caught up in a great constitutional issue and, in the face of odds, taking matters to the highest tribunal in the land. Two of the nation's leading legal scholars from whom Cleary sought advice on the appeal suggested he step aside to allow them or friends of theirs to argue the case, apparently believing Cleary, who had never appeared before the Court, was not up to the task. If life sometimes feebly imitates art, the effect here, as Nat Hentoff observes in his brief introduction, is positively Capra-esque.

The case was a magnet for intervenors and, unsurprisingly, the thirty or more organizations represented in its amici briefs reveal a substantial cross-cutting of the political spectrum. Included in support were the Association of American Publishers, the American Library Association, the American Jewish Congress, and the far-right Patriots Defense Foundation. Among those opposed were the NAACP, the Anti-Defamation League, People for the American Way, the National Lawyers Guild, the U.S. Conference of Mayors, the YWCA, and the conservative law-and-order Criminal Justice Legal Foundation. Though Cleary had the support of the Minnesota Civil Liberties Union, the parent ACLU offered little or none and, after the decision, circulated a memorandum critical of it. This ambivalence which Cleary, rightly or wrongly, attributes to a tortured affirmative action program for its governing board, giving it a "political" agenda, stands in marked contrast to its heroic work in the Skokie affair a dozen years earlier.

For the professional audience this book is much more than simply another entry in the growing literature of case narratives. Written -- it should be said, quite well written -- by the case's chief actor, it offers a close, sometimes autobiographical view of its conflict and issues as well as a good deal of insight into the strategy, tactics, and politics of taking an important but unpopular case through the entire legal system in our hyper media age. The rendering of First Amendment development on offensive speech, though lively, will be familiar territory to most, as will Cleary's briefer and even livelier discussion of the current culture wars. All readers will find Cleary accessible and forthcoming throughout, reflectively sharing events in his life and background as he sees them touching upon the case and his work in it.

This book is essentially about a fight, and the fight is but one in a larger debate about the nature of our society and, perhaps, about the nature of ourselves as human beings. Cleary is an unrelenting advocate of

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free speech and he makes its case always reasonably and well. He is also enormously tolerant, which cannot be said for all of his adversaries, in a conflict in which tolerance is both two-edged and complex.

Many readers will take issue with him as, indeed, they have with R.A.V. itself; the Court, too, was divided, with four concurring Justices, though finding for speech, employed a narrower, more instrumental reasoning than that of Justice Scalia's majority opinion. Race relations is one of the salient issues in our national experience, and a willingness to censor "hate speech" cannot be dismissed simply as dogmatic political correctness. Nor can the cross burning's terrible psychological assault on the Jones family be fully seized by those who are not black Americans. Yet, we must see that the fashionably maligned "free marketplace of ideas" worked in this case as it is supposed to work, as it worked in the Skokie conflict and in countless others before. Good ideas -- mobilized as moral opprobrium -- flooded the marketplace; the rotten one, protected, found discredit as did all that it stands for.

The intolerance displayed in the R.A.V. odyssey by professed champions of tolerance -- intolerance of the left, as Cleary wearily calls it -- should alone cause us to pause in the rush to entertain criminal sanction for the content of speech and temper our certainty that that sanction (and the shifting majorities behind it), preferring good expression over bad today, might side quite differently tomorrow or the day after.

Cleary opened his oral argument to the Court with words of Sir Thomas More from Robert Bolt's play A Man for All Seasons. They are apt. To his zealous lawyer son-in-law, who has asserted he would cut down every law in England to get after the Devil, More replies

Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, the laws all being flat? . . . If you cut them down . . . d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

How many societies would or could worry to death a vandalistic act and do so at the highest levels of government and in both the great and small media of communication, protecting the speech in that act while meeting its miscreancy with an emphatic universal condemnation? The answer implicit says something very important about this one. Reference:

R.A.V. V. CITY OF ST. PAUL, MINNESOTA, 505 U.S. ___

Copyright 1995