WASHINGTON -- The Supreme Court created new confusion yesterday over the power of states to make cross-burning a crime by clearing the way for Florida to prosecute a youth for such an incident.
Four years ago, the court appeared to bar most, if not all, of the government's power to outlaw hate messages in speech or symbolic gestures. Unanimously, the court struck down a St. Paul, Minn., ordinance against cross-burning.
Yesterday, however, the court voted -- with no dissents noted -- to reject a constitutional challenge to a Florida law that outlaws the placement of a "flaming cross" on private property without the owner's permission.
The youth involved, Thomas Brandt Davis of Jacksonville, now will be tried in juvenile court for putting a burning cross on the property of a minority family. The Florida Supreme Court in June upheld the state's cross-burning law.
The Florida court said that its own state law was broader than the St. Paul ordinance nullified by the Supreme Court. The St. Paul law, it said, was unconstitutional under the First Amendment because it targeted only symbolic messages that would offend specific minority groups.
By contrast, it said, the Florida law simply banned all cross-burning. That made it valid under the First Amendment, because it outlawed only the threat of violence that cross-burning always conveys, the Florida court said.
In his appeal to the Supreme Court, Mr. Davis' lawyers said that lower courts have reached conflicting conclusions about such laws, in the wake of the justices' 1992 ruling in the St. Paul case. His appeal noted that, unlike the Florida Supreme Court, the Maryland Court of Appeals in 1993 nullified a law similar to Florida's, and the South Carolina Supreme Court in 1993 also had struck down such a law.
Although the court turned down his appeal yesterday, it presumably could reconsider the issue if the youth is convicted and mounts a new challenge. Yesterday's denial of review does not set a precedent.
In other action, the justices held a hearing on a plea by the federal government that it not be required to justify decisions to prosecute dealers of "crack" cocaine -- even when there is evidence that only blacks are being prosecuted.
The Justice Department appeal, in a Los Angeles case, challenges a 1995 federal appeals court ruling. That ruling gave people who claim they were prosecuted in cocaine cases because of their race an opening to force the government to explain how race was used in the decision to prosecute.
A wider controversy continues in federal courts over whether blacks receive higher sentences after conviction of crack cocaine crimes, compared with what whites receive after conviction for crimes involving powdered cocaine. That question is not at issue in the case before the justices.
Rather, the new case tests the standards that federal judges must use in deciding whether to require prosecutors to open their files on drug prosecutions, to test claims of discriminatory prosecution.
A ruling is expected by the summer.