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Virginia high court strikes down cross-burning law

By The Associated Press

11.05.01

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Barry Elton Black

RICHMOND, Va. — A sharply divided Virginia Supreme Court has struck down a state law against cross-burning, saying such acts of bigotry are a protected form of speech.

In a 4-3 ruling Nov. 2, the court threw out the convictions of three people in two cases. One involved the burning of a cross at a Ku Klux Klan rally; the other involved an attempted burning in the back yard of a black person.

"Under our system of government, people have the right to use symbols to communicate. They patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry," said Justice Donald W. Lemons.

"While reasonable prohibitions upon time, place and manner of speech, and statutes of neutral application, may be enforced, government may not regulate speech based on hostility — or favoritism — towards the underlying message expressed."

In dissent, Justice Leroy Hassell wrote that the law "for almost 50 years has protected our citizens from being placed in fear of bodily harm by the burning of a cross."

Prosecutors had argued that the law, which carried up to five years in prison and a fine of $2,500, was constitutional because it applied equally to anyone who burned a cross to intimidate someone.

Attorney General Randolph A. Beales said he would appeal to the U.S. Supreme Court.

"Cross-burning with the intent to intimidate is a form of domestic terrorism, which is intolerable in a free society," Beales said in a statement.

The General Assembly enacted the cross-burning law in 1952 in response to Klan activity. The law was amended several times. It outlawed cross-burning on another person's property without permission. In 1968, legislators expanded the law to bar cross-burning in any public place.

In one of the cases decided Nov. 2, Barry Elton Black of Johnstown, Pa., was convicted in 1999 for leading a Klan ceremony in southwest Virginia that ended in a cross being set on fire. The case drew national attention when the American Civil Liberties Union hired a black lawyer, David P. Baugh, to defend Black.

Baugh argued that the ban violated the constitutional right to free speech, no matter how repugnant that speech might be. Black was fined $2,500.

Richard J. Elliott

In the other case, Richard J. Elliott and Jonathan O'Mara were convicted of trying to set a cross ablaze in the yard of Elliott's neighbor, who is black. Each was fined $2,500 and sentenced to 90 days in jail.

The men were drinking with a group of people when the conversation turned to complaints about the neighbor. The group built a crude cross that Elliott and O'Mara tried to ignite.

"As offensive as cross burning is, it is clearly protected expression under the First Amendment," said Virginia ACLU director Kent Willis. "The same constitutional right that allows you to burn the flag or criticize the government also allows you to express your opinions, as offensive as they may be."

Jonathan O'Mara

In the 1992 decision R.A.V. v. City of St. Paul, the U.S. Supreme Court struck down a St. Paul, Minn., anti-bias ordinance, saying it violated the First Amendment. The case arose in 1990 when a white teen-ager burned a cross in a black family’s yard.

"Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible,” the majority wrote. “But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."

The case is Barry Elton Black v. Commonwealth of Virginia.

Related

Virginia appeals panel upholds cross-burning conviction
Ku Klux Klan leader had argued that cross-burning was form of ceremonial speech protected by First Amendment.  01.02.01

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