Over the years the U.S. Supreme Court has placed some expression outside the protection of the First Amendment: obscenity, libel and so-called "fighting words."

Based on December's dramatic oral arguments in a Virginia cross-burning case, the court may be preparing to create a new category of unprotected expression.

It might be called "threatening symbols," or it may be a category with only one member: cross-burning, in the view of Tony Mauro, a long-time court reporter.

If the court does carve out a new free-speech exception, Mauro has written, the credit or blame will go to Justice Clarence Thomas, whose growing credentials as a First Amendment purist may, oddly enough, give him the ability to persuade his colleagues to single out cross-burning as the newest form of speech the First Amendment should not protect.

The act of cross-burning, Thomas said, carries with it the history of "100 years of lynching in the South." He added, "this was a reign of terror," and burning a cross now is "intended to have a virulent effect. It is unlike any other symbol."

He cautioned against fitting cross-burning into the court's existing "fighting words" jurisprudence, which requires that threat of harm be imminent for the speech to be punished.

It was clear that the conservative Thomas, who is often accused of forgetting his roots in Pin Point Georgia, felt that cross-burning occupies a unique place in American racial history — and that it could be singled out as a form of expression undeserving of constitutional protection, even if it does not portend immediate physical violence.

Other justices appeared deeply affected by Thomas's comments, Mauro said.

By the time University of Richmond law professor Rodney Smolla rose to attack the law on behalf of several cross-burners, it was clear that Thomas had made his task much harder. But Smolla, a veteran First Amendment advocate and theorist, did not shy away from the job, reminding the court of its repeated rejection of viewpoint and content discrimination.

Mauro wrote that Smolla's strategy appeared to be to turn cross-burning's potent symbolism into an advantage, giving the act characteristics of expression that should be protected. At one point, noting that all Klan meetings include a cross-burning, Smolla said the Klan as a political organization represents "a melange of messages ... a jumble of political anger" that would be chilled by the Virginia law.

In the cases the court is considering, two people were convicted of attempting to burn a cross on the lawn of a black resident of Virginia Beach, and a third was convicted of burning a cross at least 25 feet tall at a Ku Klux Klan rally at which there was talk of shooting blacks.

All three were found guilty under the law, which makes it illegal to burn a cross "with the intent of intimidating any person or group of persons." Their convictions were later reversed on First Amendment grounds by a sharply divided Virginia Supreme Court.

The Bush administration has weighed in on the side of the Virginia law, as have 15 state governments, including Maryland.

This year, the General Assembly passed a law barring the burning of any object with the intent to intimidate. State officials say they still need the cross-burning law.

The court's decision in the case, Virginia v. Black, No. 01-1107, is expected by the end of June.