E/CN.4/1995/78/Add.1 page 30 perhaps attributable to a paradoxical view that since racism and racial discrimination are no longer current in American society and all American citizens are on an equal footing, to take into consideration the racist motive or intent in judging offences would be to place ethnic or racial minorities in a special judicial situation. This accounts for the strict criteria necessary for an offence to be classified as racist and the frequent tendency to dismiss cases or to hand down light penalties to persons guilty of racist offences. This tendency among the judiciary is aptly described by Aviam Soifer when he observes that "today, only a smoking gun - i.e. incontrovertible proof of a specific racially discriminatory motive that an individual plaintiff can tie directly to his or her own plight - will move Court to acknowledge that discrimination, even against African Americans, may still be legally relevant". 67/ None the less, there are reservations about the judicial neutrality which the courts claim to observe and guarantee, in so far as racism and racial discrimination are not simply remnants of the past, but persist indirectly, insidiously and subtly in American society. Moreover, when it is persons belonging to ethnic minorities who are before the courts, it would appear, as is confirmed by the disparity in death penalty statistics, that the principle of the neutrality of the courts is neither the rule nor the practice. 105. There is another factor which undermines the implementation of anti-discriminatory legislation: the composition of juries. As ethnic minorities are barely represented on juries, the verdicts handed down by the courts when they hear cases resulting from racist acts or racial discrimination are often biased or unjust. 106. There is no legislation to prohibit incitement to racial hatred and the activities of racist organizations because of the sacrosanct nature of the First Amendment to the Constitution, which guarantees total freedom of expression and association, regardless of the ideas expressed and aims pursued by an association. This explains the reservations expressed by the United States Government with regard to article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination and article 20 of the International Covenant on Civil and Political Rights. 68/ The Special Rapporteur is concerned about the influence exerted through the media by the activities of racist organizations, which freely broadcast their propaganda over the radio and participate in numerous television talkshows. Like the International Council of Jewish Women, he wonders whether racist arguments which threaten the very foundations of democracy should benefit from human rights safeguards. 69/ 107. The Rapporteur is also disturbed by the way the United States Supreme Court is moving in its decisions on freedom of expression. In its decision R.A.V. vs. City of St. Paul, Minnesota, 60 U.S.L. 4667 (22 June 1992), the Supreme Court found that the burning of crosses - a form of intimidation commonly employed by members of the Ku Klux Klan to terrorize African Americans - was a form of freedom of expression protected by the Constitution. 70/