Any careful reader of today's papers can see that free speech is taking a good, solid beating.

Not since McCarthy's era have Americans been so afraid to criticize their own government. Democrats sound like Republicans, and Republicans are slinging language so negatively charged and morally absolute that it might have been cribbed from "1984." A new Department of Homeland Security has been granted unprecedented powers to intrude upon privacy in the name of stopping terrorism, and a careless remark at an airport can mean instant jailtime.

From coast to coast, we're afraid.

Preserving the increasingly fragile right to speak out, no matter how unpopular that speech may be, should now be among the primary concerns of all Americans, whether they're Democrat, Republican, Libertarian, Green or politically independent.

A case recently argued before the Supreme Court seems at first glance to be a key chance to affirm that right. The American Civil Liberties Union is challenging state laws that ban the burning of crosses. The ACLU are the same people who have tirelessly defended freedom of expression wherever it is threatened -- and championed the rights of Nazis to march through the streets of Skokie, Ill.

But the ACLU was tragically wrong when it stood up for the Nazis at Skokie, and it's wrong again to stand up for the burning cross. In its efforts to defend speech at its most offensive, the ACLU has crossed over and endorsed the right to publicly threaten minorities with death.

No matter how offensive it may be, there is a credible argument supporting the right to burn a flag. No one is personally threatened, and while the display is arguably stupid and repugnant, it's ultimately an expression of personal opinion. But almost all Americans -- backed up by some very clearly worded laws -- would agree that death threats are not and should not be protected by law.

In between, there is a gray area of speech that may threaten, but may simply be offensive. But can anyone conscious of 100 years of Klan terror really wonder about the true meaning of a burning cross?

When the court considers the arguments on either side of the burning cross case in advance of its ruling in mid-2003, it should ask itself a few questions about the meaning of the Klan's flaming logo.

Is it reasonable to expect Klansmen to act violently against blacks and other minorities?

Does the group have a documented history of violence?

Does the burning cross, one of the group's primary symbols, reasonably serve as a threat of violence?

In all cases, the answers are "yes." There are few, if any, degrees of separation between burning a cross in public and delivering notes to all local blacks and Jews saying that their lives are in danger.

If you interview a modern Klansman, it's likely he'll claim that the group has grown beyond its violent origins, and now stands for the peaceful separation of the races and "white pride." This represents a major tactical shift. However, if these neoKlansmen truly wanted to renounce the brutal, thuggish acts that define their history, they would disband, and reconstitute themselves with a new name, new symbols, and a clearly defined new ideology.

Until that happens, every man or woman who dons the white hood and parades in front of a burning cross is embracing a long, deep and vivid heritage of bigotry and murder. And every black man and woman who looks upon the Klan's symbol has a clearly demonstrated reason to fear for his or her life.

Cross-burning laws have been struck down before. In 1992, the Supreme Court struck down a Minnesota law that banned symbols that provoke anger "on the basis of race, color, creed, religion or gender." But, as Slate's Dahlia Lithwick observes, that law singled out particular symbols (including burning crosses and swastikas), as opposed to the symbol-wielders' "intent to intimidate."

There can be little doubt that the burning cross -- like the swastika -- is stained with enough blood that we can subjectively decide that the damned thing can be read as a real threat.

In the deliberations before the Supreme Court, Rodney A. Smolla, arguing in favor of keeping burning crosses legal, asked "What's the difference between brandishing a cross and a torch?"

Justice John Paul Stevens answered: "A hundred years of history."

If the Supreme Court upholds the Virginia statute, our right to criticize the war on terror, the racial politics of Louis Farrakhan or arguably criminal conduct of former President Bill Clinton will remain intact. But our ability to threaten the lives of other Americans will be severely impaired.

"Aren't you understating the effects ... of 100 years of lynching?" asked Justice Clarence Thomas, in a discussion of the burning cross's symbolism. If the court protects anti-cross burning laws, it will demonstrate once and for all that it does.