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Soon to Be a Major New York Times Correction

A New York Times editorial gets a Supreme Court decision exactly wrong.

4:00 PM, Apr 9, 2003 • By DAVID TELL
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ON MONDAY the Supreme Court released its ruling in Virginia v. Black, et al., a constitutional free-speech challenge to a 50-year-old Richmond legislative enactment that bans Klan-style cross burnings specifically designed to "intimidate" their victims. And here's the lead sentence of Tuesday's New York Times editorial, "A Decision on Cross Burning," which goes on to herald the court's decision: "The Supreme Court upheld a Virginia statute yesterday that makes it illegal for Ku Klux Klansmen and others to burn crosses."

By my count, that's a 21-word sentence, and fully 20 of them are accurate. Which is otherwise a damn fine score, don't get me wrong--except that the twenty-first word, "upheld," is the one our anonymous New York Times editorialist has picked to describe the high court's bottom-line conclusion in Virginia v. Black. And that word, "upheld," is . . .

Well, let's let Justice Sandra Day O'Connor, announcing her colleagues' collective judgment in the case, explain what they think of the cross-burning ban at issue. These are Justice O'Connor's first two sentences, right up top:

In this case we consider whether the Commonwealth of Virginia's statute banning cross burning with "an intent to intimidate a person or group of persons" violates the First Amendment. We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.

Just to be fair, I should acknowledge that "unconstitutional," as Justice O'Connor here employs the label, has a particular, technical meaning the subtleties of which may not be entirely familiar to the Times editorial-page staff. To make a long story short: "Unconstitutional," in this context, means that the Virginia cross-burning ban, as presented to the Supreme Court for review, is un-frigging-constitutional--no good, stinko, vacated, dead, off-the-books, legally unenforceable, overturned. That kind of thing.

Justice Clarence Thomas dissents; he finds the Virginia statute constitutionally unproblematic. And Justice Antonin Scalia leans that way (though he, too, thinks that the trial-court conviction of Klansman Barry Elton Black, the lead respondent in the case, was improperly obtained). But four justices, led by O'Connor, believe the "prima facie evidence provision" of the challenged Richmond statute is "unconstitutional on its face" and "makes the statute facially invalid at this point." And three other justices, led by David Souter, argue that all cross-burning bans must be judged unconstitutional--not just Virginia's, and not just on account of its prima facie clause--because the practice symbolically expresses political views which, though obnoxious, fall squarely within the First Amendment's protection, and cannot, consequently, be singled out for restriction.

A little legal Cliff's Notes tip to my friends at the Times: When seven justices conclude that a law is "unconstitutional," that law has been struck down, not "upheld."

The confusion seems to arise from the admittedly topsy-turvy reasoning employed by the O'Connor plurality: As Scalia points out in a characteristically mordant separate opinion, O'Connor and her three partners on the court simultaneously contend that, on the one hand, Virginia's cross-burning ban is "unconstitutional on its face" and, on the other, that the very same ban might not be unconstitutional at all--were its "prima facie evidence" provision to be applied in a manner consistent with ancient and universal American judicial practice. Ordinary legal logic suggests that a statute for which at least one constitutionally permissible application may be identified is not a statute that is unconstitutional "on its face." Be that as it may, six justices--the O'Connor plurality, Thomas, and Scalia--appear willing at least to consider the possibility that cross-burning bans like Virginia's could theoretically pass constitutional muster.

Still, theoretical considerations aside, it is a simple, outright error for the Times editorial page to report that the Supreme Court has "upheld [the] Virginia statute" this time around.

The Associated Press has made the same mistake: "Top Court Upholds State Ban on Cross Burning." As has Knight-Ridder's news service: "Supreme Court Upholds Virginia Cross-Burning Ban." And several dozen other American newspapers have followed suit.