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Virginia cross-burning law facing high court test

By The Associated Press

12.09.02

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RICHMOND, Va. — Racial hatred was a somewhat abstract concept to Susan Jubilee, who grew up in an open-minded white family, so the gravity of her husband's words did not sink in immediately.

James Jubilee, who is black, had just found a partially charred cross in the front yard of their Virginia Beach home. He told his wife he stowed the 4-foot cross in the garage because he didn't want her or their two sons to be scared.

"It really took me a minute to understand what he was saying," Susan Jubilee said.

Someone wanted her family out of the neighborhood, she said, and they used the longtime Ku Klux Klan symbol to deliver the message.

"That's the first warning. Next, they will come back and burn the house down," she said.

Four years after the 1998 incident, the U.S. Supreme Court is to hear arguments Dec. 11 on 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 Virginia Supreme Court ruled 4-3 last year that the state's 50-year-old law against cross-burning violates the right to free speech, siding with three defendants in two separate incidents.

Virginia Attorney General Jerry Kilgore asked the U.S. Supreme Court to review the decision.

"We believe that when someone intentionally burns a cross for the purpose of intimidating another person, it ought to be a crime and states around the country ought to be able to protect their citizens," Kilgore said in an interview.

Two neighbors were convicted of attempting to burn the cross on the Jubilees' lawn — one of two Virginia cases involved in the Supreme Court review.

In the other case, Barry Black of Johnstown, Pa., was convicted of burning a cross during a Klan rally on private land. His trial drew national attention when the American Civil Liberties Union hired a black lawyer, David P. Baugh, to defend Black.

University of Richmond law professor Rodney Smolla, a prominent First Amendment lawyer, took over for Baugh on appeal and will urge the Supreme Court to affirm the Virginia justices' ruling.

"Our position is that it violates the First Amendment to single out any particular symbol or symbolic ritual for special punishment, even though that symbolic ritual may be highly offensive to most people," Smolla said.

The Virginia Supreme Court relied heavily on the U.S. Supreme Court decision 10 years ago in R.A.V. v. City of St. Paul striking down a Minnesota ordinance that outlawed cross-burning if it was aimed at others "on the basis of race, color, creed or gender." That ordinance violated the First Amendment's free-speech protection because it sought to ban only certain viewpoints, the high court said.

Kilgore said that ruling should not apply in Virginia because the state's law protected everyone, not just those of targeted because of race or other characteristics.

Ten months after the cross-burning, the Jubilees moved, fearing for their children's safety.

"It has embittered us a little bit," Susan Jubilee said. "It showed me racism is still alive. It just kind of popped my bubble."

Update

Supreme Court justices debate 'terror' of cross-burning
Court hears oral arguments in Virginia case that may determine whether cross-burning is illegal intimidation or protected speech.  12.11.02

Previous

Supreme Court to hear Virginia cross-burning case
State high court had ruled 4-3 that state law was unconstitutional because such acts of bigotry are protected speech.  05.28.02

Related

High court may clear up lingering confusion about cross-burning
Analysis In the years since its last ruling on subject, state and federal courts have invoked R.A.V. v. City of St. Paul to both uphold, strike down similar laws.  05.29.02

2002-2003 Supreme Court term coverage
Analysis and other coverage of 2002-2003 U.S. Supreme Court term.  10.07.02

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