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U.S. Supreme Court to hear cross burning arguments

Emotionally charged issue pivots on free speech, hate laws

By William Mears
CNN

Emotionally charged issue pivots on free speech, hate laws

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Court docket: Virginia v. Black, et al.  (FindLaw)external link
SPECIAL REPORT

WASHINGTON (CNN) -- A flaming cross this week will again be a central point of contention, this time before the U.S. Supreme Court.

Justices Wednesday will hear arguments in a case that asks whether burning a cross is constitutionally protected expression or an overt threat that can be banned by the states. The justices' ruling, expected next year, could affect laws in about a dozen other states.

The case before the Supreme Court involves two incidents of cross burning that occurred within months of each other in 1998.

In the first incident from Virginia Beach, three teenagers tried but failed to set a cross on fire on a family's front yard.

"It was pretty surreal," said Susan Jubilee, recalling the incident. "It was like someone was paying a calling card with a note saying, 'Move out or we're coming back to kill you.' That's the message we took from it."

Fearing future violence, the family moved from the neighborhood, and now say their real estate business has suffered as a result of the publicity.

Investigators labeled the incident a hate crime, and the men either pleaded guilty or were convicted in court of various crimes under the anti-cross burning statute.

Four months later in Carroll County, Virginia, Barry Black organized a Ku Klux Klan rally on private property where a large cross was burned. The burning was witnessed by nearby homeowners and motorists along an adjacent state highway. Black was arrested and charged with hate crimes.

At his trial, prosecutors presented both African American and white residents who said they felt frightened by the burning display. Black was convicted but received no jail time.

After their convictions, Black and the three teenagers appealed their sentences, saying the Constitution protects "expressive conduct."

Symbols v. intimidation

start quoteWhether it is desecrating the Star of David, burning an effigy of the president, or burning a photo of Osama bin Laden, all these powerful expressions, despite their message of hatred, deserve constitutional protection.end quote
-- Rodney Smolla, law professor

The ACLU agreed to represent Black, even hiring David Baugh, a prominent African American lawyer, who argued Black's right to free speech was violated, however disturbing the speech.

Virginia's Supreme Court threw out the convictions, finding the cross-burning law to be unconstitutional. The court found that despite the state's desire to fight bigotry, "people have the right to use symbols to communicate. They patriotically wave the flag or burn it in protest; they may reverently wave the flag or burn it as an expression of bigotry."

In other words, the court said the government can ban intimidation, but not by targeting the "distinctive message" of cross burning.

For University of Richmond law professor Rodney Smolla, who took over for Baugh in the Supreme Court appeal, the issue is about the power of symbols.

"It isn't about the particular act of cross burning," he said. "It's whether the government can move against a particular symbol. Our view is, if you allow the government to do that, there is no stopping it. Whether it is desecrating the Star of David, burning an effigy of the president, or burning a photo of Osama bin Laden, all these powerful expressions, despite their message of hatred, deserve constitutional protection."

Baugh will make his case before the justices Wednesday.

Virginia Attorney General Jerry Kilgore said the issue is about the power of intimidation.

"This case involved two important freedoms -- freedom of speech and freedom from fear," Kilgore said. "Our statute preserves the first and secures the second.

"We are making the statement that burning a cross is purposeful and criminal intimidation that we will not tolerate," Kilgore added. "If you see a circle or a square burning on your front lawn, you would likely call the fire department. If you see a burning cross, you will probably call the police. It is nothing short of domestic terrorism."

High court looked at issue before

start quoteIf you see a burning cross, you will probably call the police. It is nothing short of domestic terrorism.end quote
-- Jerry Kilgore, Virginia Attorney General

The Supreme Court last looked at the issue a decade ago, striking down a Minnesota statute banning cross burning and other symbols of intolerance "on the basis of race, color, creed or gender." Justices found that law violated free speech because it was overbroad and banned only "specified disfavored topics."

Kilgore said Virginia's law is different because it broadly covers all of society, with no regard to race, ethnicity, religion, sexual orientation or other characteristics, and contains the requirement of intentional intimidation.

Since the Virginia Supreme Court ruling, the state consolidated the cases and appealed to the U.S. Supreme Court, seeking clarification on how states can legally ban "intolerance-based speech and crimes."

Virginia lawmakers also passed a new law, banning all "intimidating burning," not just limited to crosses. This new law is not being challenged in the courts.

Virginia passed its cross-burning statute in 1952, amid fears of resurgence by the Klan. It came at a time when segregation in schools and other public places was still legal.

The Jubilee family supports Virginia's anti-cross burning law.

"We've experienced racism as a mixed-race family," Susan Jubilee said, "but we feel an obligation to do what we can to makes things better."



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