High court may clear up lingering confusion about cross-burning
By Tony Mauro
Special to freedomforum.org
The Supreme Court may have thought it said all that needed to be said about cross-burning 10 years ago.
That is when, in the case R.A.V. v. City of St. Paul, the court struck down an ordinance that prohibited cross-burning when it was intended to cause resentment or alarm “on the basis of race, color, creed, religion or gender.” The law amounted to “viewpoint discrimination” and violated the First Amendment, the court said.
But in the years since, state and federal courts have invoked the R.A.V. ruling to both uphold and strike down similar laws.
Yesterday, the Supreme Court agreed to revisit the issue, responding to a plea from the commonwealth of Virginia for clarity on the racially charged subject. It is rare for the Supreme Court to use state court, rather than federal court, decisions as the basis for making new First Amendment doctrine.
Virginia’s highest court, also citing R.A.V., last year struck down that state’s 50-year-old law forbidding cross-burning, even though the law does not mention the racial criteria the Supreme Court focused on in the 1992 case. Instead, the Virginia statute bars cross-burning “with the intent of intimidating any person or group of persons.” But the Virginia Supreme Court found the law “analytically undistinguishable” from the ordinance struck down in R.A.V.
The Virginia law was passed in response to cross-burnings in the state by the Ku Klux Klan, but the state in its petition emphasizes that the law in its wording does not target the Klan alone or any specific kind of intimidation.
“The question of how states may ban cross-burning when the intent is to intimidate is an important question of federal law that this court should address,” Virginia’s state solicitor William Hurd told the justices in his petition in Virginia v. Black, the case accepted for review yesterday.
Virginia Attorney General Jerry Kilgore said after the court’s action, “It is important that Virginia have the ability to protect her citizens from this type of intimidation. Burning a cross to intimidate someone is nothing short of domestic terrorism.”
Nine states also filed a brief with the court urging it to accept the case to give them guidance on how to deal with hate crimes, which, they said, are on the rise. “Expressions of hate and bigotry are protected by the Constitution, but actions taken to harm, threaten, intimidate or terrorize others are not equally protected merely because they are rooted in such hate and bigotry,” the states agreed. Arizona, California, Georgia, Kansas, Massachusetts, Missouri, Oklahoma, Utah and Washington joined in the brief.
The Virginia case actually stemmed from two separate cross-burnings involving three defendants in 1998. In one, Klan member Barry Elton Black was arrested after leading a Klan rally that included burning a 25-foot tall cross in a field in rural Carroll County. The cross was on private property but in full view of passing motorists and nearby residents, including many African-Americans.
In the other incident, Richard Elliott and Jonathan O’Mara, both white, tried to burn a cross in the yard of a black neighbor, James Jubilee. The defendants in both cases invoked their First Amendment free-speech rights in defense of their actions.
The Virginia Supreme Court sided with the defendants, finding that “despite the laudable intentions of the General Assembly to combat bigotry and racism, the selectivity of its statutory proscription is facially unconstitutional because it prohibits otherwise permitted speech solely on the basis of its content.”
Lawyers for the defendants, including noted First Amendment scholar Rodney Smolla, a law professor at the University of Richmond, urged the high court to leave the Virginia Supreme Court ruling undisturbed. “The court conscientiously applied core First Amendment principles in unpalatable circumstances,” the defendants’ brief states.
After the Virginia Supreme Court ruling was appealed to the Supreme Court, the Virginia Legislature passed a new "fallback" law that makes no mention of crosses but makes it a crime to burn any object with the intent to intimidate. But the old law, the one before the U.S. Supreme Court, remains on the books, so the dispute is not moot. If the old law is struck down, the new, more general law would stand unless it, too, is challenged.
The case is to be argued this fall.
Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.
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