By Jonny Lupsha, News Writer

Surprising additions to a hate symbols database include the “OK” hand gesture, AP News reported. It and other seemingly innocuous symbols have recently been co-opted by white supremacists and mass shooters. However, the legality of hate symbols is a different matter.

According to the AP article, the familiar hand gesture meaning “OK,” a certain kind of bowl-cut hairstyle, and also about three dozen other things have been flagged in the Anti-Defamation League’s online Hate on Display^TM database, which lists expressions and symbols used by hate groups. The new additions to the hate symbols database have been added to the list of widely recognized symbols of intolerance such as Ku Klux Klan robes and burning crosses. Despite their use by individuals and groups for expressing hate, past Supreme Court rulings show that the issue is more complicated than simply banning or allowing recognized hate symbols.

Burning Flags

Burning the American flag as a symbol of protest has been an intensely controversial issue across the country for a long time. In 1984, at the Republican convention in Dallas, Texas, former President Ronald Reagan was given the nomination for his second term in office. Outside, most demonstrators protested peacefully—but some did not.

“One small group, the Revolutionary Communist Youth Brigade, marched through downtown Dallas, spray-painting slogans on the walls of corporate buildings,” said Dr. Peter Irons, Emeritus Professor of Political Science at the University of California, San Diego. “One marcher pulled an American flag from its pole outside a bank and handed it to Gregory Lee Johnson, who led the noisy band to City Hall. Johnson unfurled the flag, doused it with lighter fluid, and flicked a cigarette lighter.”

Eventually, police arrested Johnson for breaking a Texas state law that bans the desecration of a flag knowing that it would “seriously offend” someone who saw it. Johnson was sentenced to a year in jail, though his conviction was overturned by state judges who declared the act “speech contemplated by the First Amendment.” On it went to the Supreme Court.

The late Justice Antonin Scalia argued that passing a “flag exception” to the act of protest—ugly as that act may be—would limit free speech regarding the flag to a one-way street. In recorded audio, Justice Scalia is heard saying, “We, up to now, have never allowed such an item to be declared a national symbol and to be usable in only one direction symbolically.”

“On June 21 of 1989, the Court struck down the Texas law by a vote of five to four,” Dr. Irons said. “Johnson was punished, [Justice William] Brennan said, ‘because of the content’ of his message, however hateful to most Americans.” Brennan continued, saying that the very principle of the First Amendment is that it does not outlaw the expression of an idea because society finds the idea offensive.”

Burning Crosses

In 1990, Robert A. Viktora, a 17-year-old high school dropout and self-described “skinhead,” gathered several friends in St. Paul, Minnesota, and burned a makeshift cross on the lawn of a local black family. Cross-burning is a symbol associated with white supremacy and the Ku Klux Klan. According to Dr. Irons, police soon found and charged the boy for violating St. Paul’s hate crime ordinance.

“This law made it a crime to ‘place on public or private property a symbol or object, including a burning cross or Nazi swastika, which one knows—or has reasonable grounds to know—arouses anger or alarm or resentment in others—on the basis of race, color, creed, religion, or gender,’” he said, reading from the law itself.

The boy was convicted in juvenile court and the Minnesota Supreme Court upheld the ruling, so it went to the Supreme Court. “Viktora’s appeal to the United States Supreme Court rested on the ordinance’s limitation of its protection to groups that were specified by race, religion, or gender,” Dr. Irons said. “Justice Scalia wrote for a unanimous Court in striking down the ordinance. He based his ruling on the doctrine of content neutrality; Scalia put that doctrine in these words: ‘The government may not regulate speech based on hostility—or favoritism—towards the underlying message expressed.”

The ruling in Viktora’s case has been cited in several subsequent cross-burning cases, with Supreme Court Justices often disagreeing on whether cross-burning is legally expressing a message of a belief—in this case, white supremacy—or if it simply constitutes intimidating African Americans.

Burning flags and burning crosses are two acts that most Americans find abhorrent, due to the underlying meaning associated with each. However, the Supreme Court has ruled multiple times that despite their messages, neither act is totally and explicitly against the law. Given this, it’s quite possible that the newly recognized hate symbols added to the Anti-Defamation League’s database will find their way to the Supreme Court sooner or later.

Dr. Peter Irons contributed to this article. Dr. Irons is Emeritus Professor of Political Science at the University of California, San Diego. He earned his undergraduate degree from Antioch College and his M.A. and Ph.D. in Political Science from Boston University. He earned his J.D. from Harvard Law School.