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High court takes up Virginia cross-burning case

By William Mears

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

WASHINGTON (CNN) A Supreme Court divided over whether a burning cross is a protected form of free speech spoke out Wednesday about the long history the object has as a symbol of racial hatred.

Justices heard arguments in a case testing whether a Virginia statute banning cross burning "with the intent to intimidate" violates the First Amendment. The 50-year-old state law bans the ritual on private and public property.

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

The issue for the justices will be whether laws designed to prevent "broad intimidation"-- not limited to any "racial, religious, or other content-focused category" -- will stand up to First Amendment protections.

In unusually spirited arguments, Virginia Solicitor William Hurd called cross burning "especially virulent intimidation."

"The message of the Klan is, the law can't help you," Hurd said. "We are going to kill you. That's the message of the cross burning."

But several justices questioned whether the mere act of cross burning is in itself intimidating. "Suppose you had a cross burning in a play or a movie," asked Justice Sandra Day O'Connor. "Would that be intimidating?"

Justice Anthony Kennedy asked, "Any time you burn a cross in Virginia, it's a crime?"

Later, Justice Antonin Scalia jokingly commented, "Certainly one cannot ban cross burning in the sanctity of his bedroom."

Other justices pointed out the powerful symbolism cross burning have had on a nation over decades torn by racial turbulence.

"I fear that no other purpose exists to the burning of a cross but to cause fear, and to terrorize the population," said Justice Clarence Thomas, in a rare commentary from the bench.

The court's only African-American justice, Thomas grew up in segregated Georgia. Cross burning, he said, was part of "100 years of lynching in the South.

"This was a reign of terror, and the cross was a sign of that," Thomas continued. "It is unlike any symbol in our society."

'What's the tiebreaker?'

start quoteThe cross has acquired a potency that is at least equal to that of a gun.end quote
-- Justice David H. Souter

Added Justice David Souter: "Cross burning has acquired a potency arguably that is at least equal to a gun. It is not merely a trademark."

But sensing the conflict between protecting free speech and preserving a ban on cross burning, Souter asked, "What's the tiebreaker?"

Rodney Smolla, the attorney representing the men convicted of cross burning and a University of Richmond law professor, said justices "should err on the side of the First Amendment."

"Our view is if you allow the government to [ban cross burning], there is no stopping it."

The justices historically have been protective of the free-speech rights of the most controversial of groups, including flag-burners, adult entertainers and people who display swastikas.

In the cross-burning case, they're debating now whether three white men were wrongly prosecuted, in separate cases, for lighting crosses during a Klan rally and in the yard of an African American family.

The Virginia Supreme Court overturned the convictions of the men, ruling the burnings were symbolic speech.

Minnesota statute struck down decade ago

start quoteAny time you burn a cross in Virginia, it's a crime?end quote
-- Justice Anthony Kennedy

The state court relied on a high court decision a decade ago in another cross-burning case. The Supreme Court struck down a city hate crimes ordinance in St. Paul, Minnesota, that criminalized cross-burning aimed at frightening or angering others "on the basis of race, color, creed or gender." Virginia's law prohibits the activity when done to intimidate a person or group.

Virginia Attorney General Jerry Kilgore said Virginia's law is different from the Minnesota statute 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 that threw out the convictions, 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.

About a dozen other states have similar laws. A decision on the case is expected sometime before June.

The case is Virginia v. Black, No. (01-1107).

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