There’s a Virginia law that makes it a felony to burn a cross publicly or on another person’s property with the intent of intimidating any person or group. In recent years, three separate groups of white supremacists were tried and convicted under the statute. This past Monday, in the case Virginia vs. Black, the U.S. Supreme Court decreed that Virginia may indeed outlaw such “cross burning with intent to intimidate” consistent with First Amendment principles.

“Bravo!” you shout. And your approval is understandable. The burning cross, no doubt, has stood as a singularly reviled symbol of terror, particularly for blacks in the American south, for 150 years. But consider the broader implications of the Court’s decision. If 75 percent of a Virginia jury decides a certain symbol (in this instance, a burning cross) is intimidating, that symbolic speech is left unprotected under the First Amendment.

To be sure, there is no right in this country to use intimidating and threatening words. You can’t make a verbal or written assassination threat against the president, no matter how much you dislike his foreign policy. Challenging someone earnestly to a physical fight is punishable. Ordering followers in a cult to kill non-believers is incitement to violence, also a no-no.

But here’s why Virginia vs. Black makes a horrific turn for the worse in free speech law: For the first time, the Court has decided that a symbol (not words, but a symbol) can be punished as a felony if 75 percent of a Virginia jury says that an individual’s use of that symbol was intended solely to intimidate someone.

Even when a threat is made with words, we don’t convict people automatically. Even with words (which are way, way, way better indicia of intent than are symbols), a jury often has to consider whether a defendant intended to threaten. If I say, “I’m going to kill the president,” the text is quite clear. But my intent might not be. Was I joking? Was I so drunk that I couldn’t form a serious intent? Did I know that other people were listening? Context matters. And juries struggle deliberating such matters.

Symbols are infinitely more ambiguous than words. There’s no way to separate an unprotected intent to intimidate cleanly from a protected message like “up with white supremacy!” that 75 percent of an average jury just plain detests. Virginia v. Black means juries will become the ultimate free speech fortune-tellers. Of the infinite possible reasons that a symbol could be employed, the jury will say whether your use of a symbol stood only for intimidation. And the risk the Court has failed to confront is that juries will be tempted to improperly indict people for unpopular principles — white supremacy, for instance — under the auspices of a supposed threat.

So next time a Klansman only wants to demonstrate white supremacy “solidarity” by burning a cross and not to intimidate blacks, he better think twice before he risks a jail term (or perhaps he should just adopt a new symbol, like a burning hoop, until that gets outlawed too). Next time President George W. Bush flashes his three-fingered “W” salute, perhaps the County of Los Angeles should put it to a jury whether W. was hawking an intimidating “West-Side” gang symbol. Next time a Navajo Indian displays a swastika in front of his house to wish prosperity and health to his neighbors, and a next-door Holocaust survivor is intimidated, we might learn from the majority of a jury that the Navajo was a budding fascist. Or next June 29, when a Catholic publicly places an inverted cross in honor of St. Peter’s Day, a jury in a municipality with a ban on intimidating use of pagan symbols might just decide that our pious Catholic is actually a felonious witch.

Voltaire said, “I may disagree with what you say, but I will defend to the death your right to say it.” No decent American stands for the Klan’s principles. But tomorrow, maybe, just maybe, your municipality will ban the unpopular symbol that you tote.

And if 75 percent of the society that you live in doesn’t like that message, even if you didn’t mean to intimidate, away you go to San Quentin on a cozy one to five year sentence. And then you too will be a symbol — a class 6 felony symbol, to be more precise — of a society that seems to be forgetting what the First Amendment symbolizes.

Chris Guzelian is a third-year law student at the Law School who likes speaking freely, but only when it’s worthwhile. He can be reached at guzelian@stanford.edu.