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Supreme Court justices debate 'terror' of cross-burning

By The Associated Press

12.11.02

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WASHINGTON — A case involving whether cross-burning is illegal intimidation or constitutionally protected free speech produced sharp debate today among Supreme Court justices, with most appearing troubled by the symbol's link to racial violence.

Justices are considering how far states can go to discourage the Ku Klux Klan and others from burning crosses. At issue is an anti-cross-burning Virginia law passed 50 years ago in reaction to Klan intimidation of blacks.

Justice Clarence Thomas, the high court's only black member and the justice who rarely speaks in arguments, said crosses were part of "100 years of lynching in the South."

"This was a reign of terror, and the cross was a sign of that," said Thomas, who was raised in segregated Georgia. "It is unlike any symbol in our society. It was intended to cause fear, terrorize."

The justices interrupted each other during the lively argument, comparing crosses to semiautomatic weapons and discussing the history of cross-burning.

"The cross has acquired a potency that is at least equal to that of a gun," Justice David H. Souter said.

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 two separate cases, for lighting crosses during a Klan rally and in the yard of a black family.

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

The state court relied on the U.S. Supreme Court decision, R.A.V. v. City of St. Paul, a decade ago in another cross-burning case. The Supreme Court struck down a city hate-crimes ordinance in St. Paul, Minn., 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.

Several justices, however, questioned whether in Virginia people can be punished for burning crosses if there is not a clear intent to intimidate.

The Virginia law applies to cross-burning on public or private land. The Virginia court said general laws against vandalism, assault, and trespass could be used to prosecute those who seek to terrorize others, according to the Christian Science Monitor.

More than a dozen states have cross-burning laws. A ruling against Virginia could block many of them.

The arguments come four years after two white neighbors in Virginia Beach, Va., tried to burn a 4-foot cross in the yard of James Jubilee, who is black. Jubilee later moved his family out of the neighborhood.

In the other case, a Pennsylvania man was convicted of burning a 30-foot cross on private land in rural southern Virginia during a 1998 Klan rally.

Virginia Solicitor William H. Hurd said the Klan rally was held after whites became angry about mixed-race couples, and that they talked at the rally about killing blacks. He pointed at the large courtroom columns, to compare the size of the cross that was set on fire.

Justice John Paul Stevens asked if the state was only prosecuting cross-burnings because they are obnoxious speech. Hurd said such speech is allowed, but that threatening speech should be barred.

The Bush administration, siding with Virginia, argued in court filings that cross-burning "has a particularly strong association with acts of vigilantism and violence."

Virginia has passed a new version of the law intended to get around free-speech concerns. The new law makes it a crime to burn anything, including a cross, as a threatening symbol.

The case is Virginia v. Black, 01-1107.

Previous

Virginia cross-burning law facing high court test
Justices to hear arguments Dec. 11 on whether burning a cross is constitutionally protected expression or overt threat that can be barred by states.  12.09.02

Related

Will high court make cross-burning a new class of unprotected speech?
Analysis Justice Thomas's surprise statement underscoring 'virulent effect' of cross-burning changes tenor of arguments.  12.12.02

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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