The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation,” writes Sandra Day O’Connor, in the Supreme Court’s latest insult to the collective American intelligence, Virginia v. Black.

This case allowed Virginia to do something that is perfectly admirable, ban cross burning as a form of racial intimidation, but also do something unconstitutional, which, of course, is to ban cross burning as a manner of speech.

It’s a fact that cross burners are not generally people I would want to befriend. Burning a cross is truly a virulent form of racial intimidation. Nonetheless, the Supreme Court, as has become custom, neglects the facts of the case in front of them in an attempt to make a statement. Just what this states, I don’t think anyone can say. The split on the court is a bizarre one, with most of the conservative justices acting in favor of banning cross-burning. Sandra Day O’Connor penned the opinion, with Chief Justice Rehnquist and Justice Scalia both allowing the ban, despite the potential damage to the First Amendment. Meanwhile, they were joined by Justice Breyer, hardly a conservative, and Justice Stevens, a more moderate justice. This split seems disturbing to say the least, for numerous reasons.

What this case probably suggests is that the court’s right wing is itching for the opportunity to overrule Texas v. Johnson and make it legal to criminalize free speech based on its content (i.e. burn flags to protest things). Frankly, acts of racial intimidation have been accepted in the Supreme Court when they’re placed up against poorly written hate crime laws, like in the case of R.A.V. v. St. Paul, so there’s little precedent to say that racist acts alone pose any reason to outlaw something.

The worst thing about the decision is that it is woefully unnecessary. The prohibition in Virginia makes it a felony for “any person … with the intent of intimidating any person or group … to burn … a cross on the property of another, a highway or other public place.” So the Court shouldn’t have ever reached the cross-burning issue at all. These acts would constitute trespassing, except in the case of public places.

In the event that the burning takes place in a public place, then the issue of cross-burning might matter to the case if it was just happy, blissful, all-is-well celebratory cross-burning. But, alas, in any relevant case, it does not. Since the statute required intimidation to be attached to the cross burning, the cross burning is no longer a meaningful legal issue.

The mere act of directing intimidation toward someone is equivalent to assault, rendering any concerns the court may have with how that intimidation is directed totally moot. The merits of the case suggested that the issue of cross-burning was so unimportant to this issue that the Court has essentially issued some helpful advice, something that it was never designed to do. Virginia should do the right thing, which is to charge people who commit assault with assault. It’s a novel concept, and one that wouldn’t fly well in a court system hell-bent on plea bargaining. But to charge cross-burners with anything but assault is about the same as accepting a person to plead guilty to operating while intoxicated as a plea bargain for first-degree murder.

More bizarre still, the Court inferred that the mere act of burning crosses did not necessitate prima facie evidence of intimidation, which seems reasonable, since for whatever reason, I may just want to burn lower-case t’s or really have it in for things that happen to be cross-shaped.

Cross burning is a terrible thing, and something that no one should ever do. It is extraordinarily controversial and offensive. At the same time, that’s the only reason it’s even protected by the First Amendment. If everyone just talked about how wonderful everything was, the First Amendment would be a worthless construct. It’s not until people have to start spouting idiotic trash, whether it be in a newspaper or at a rally in Skokie, Illinois that the First Amendment matters.

To silence racists is also taking a step to silence civil rights marchers, since their statements would obviously have offended the Ku Klux Klan and could have easily been construed as being deliberately crafted to do so.

As sickening as it may be, people’s right to speak shouldn’t be infringed by laws specifically requiring speech. Allowing Virginia to ban cross burning when they don’t need to do so to prevent the activity is just preparing us for a century of abuses, where our right to speak is reduced to offering speeches supporting our government and the status quo.