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Va. Supreme Court Overturns Law Against Cross-Burnings
By Brooke A. Masters
Washington Post Staff Writer
Saturday, November 3, 2001; Page B01
The Virginia Supreme Court struck down the state's 49-year-old ban on
cross-burning yesterday, ruling that the activity is a
form of expression and protected by the First Amendment.
The 4 to 3 decision said the 1952 statute unfairly discriminated against
a particular symbol and viewpoint and overturned the
convictions of a Ku Klux Klan leader and two other men who were charged
in two incidents in 1998.
"Under our system of government, people have the right to use symbols to
communicate," Justice Donald W. Lemons wrote
for the majority. "They may patriotically wave the flag or burn it in
protest; they may reverently worship the cross or burn it as
an expression of bigotry."
But the court's lone black justice, Leroy R. Hassell Sr., and two
colleagues dissented, arguing that the law did not infringe on
protected speech. "The First Amendment does not permit a person to burn
a cross in a manner that intentionally places another
person in fear of bodily harm," Hassell wrote.
The statute stems from the Virginia General Assembly's effort to cope
with growing KKK activity in the early 1950s, a time
when racial tension was high. The legislature banned cross-burning on
another person's property without permission in 1952,
and then expanded the law in 1968 to cover any public place.
Legal analysts said the decision conforms with earlier U.S. Supreme
Court rulings striking down laws banning flag-burning and
a St. Paul, Minn., ordinance that barred racially offensive displays
such as swastikas and burning crosses. But, they said, the
state court could have avoided overturning the cross-burning law by
narrowing its application.
Instead, the court voided the whole statute, heartening civil
libertarians who saw the case as a timely reminder that the
Constitution protects even unpopular speech. Legal analysts expect to
see a flood of free-expression cases as legislatures and
school boards rush to promote patriotism in the aftermath of the Sept.
11 attacks.
"The Virginia Supreme Court has boldly reminded us that the only way we
can truly protect the essential constitutional right of
free speech is by allowing everyone to express their opinions no matter
how offensive they may be," said Kent Willis, executive
director of the American Civil Liberties Union of Virginia, which
recruited lawyers to challenge the statute.
University of Richmond law professor Rodney Smolla, who represented the
men convicted of cross-burning on appeal, said he
was "not surprised by the closeness of the decision. The country has
really struggled with the relationship between hate speech
and violence."
But Virginia Attorney General Randolph A. Beales (R) promised an appeal.
"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. "We believe Virginia's statute is
constitutional and we intend to carry the fight to the United States
Supreme Court."
Rovenia Vaughan, president of the Virginia State Conference of the
NAACP, said her group is studying the decision with
counsel to determine what steps to take.
The case stemmed from two 1998 incidents. In one, two Virginia Beach men
were convicted of attempted cross-burning after
they brought a cross to a black neighbor's yard and tried to set it on
fire. The other involved Barry Elton Black, a leader of a
Pennsylvania Ku Klux Klan group. Black was charged with violating the
law after he burned a cross at a Carroll County, Va.,
rally on private property with the permission of the owner.
Black's case drew national attention after the ACLU recruited David
Baugh, a black lawyer from Richmond, to represent him
at trial. Black and Baugh forged a working relationship, despite their
ideological differences.
"Mr. Baugh fought hard for me," said Black, 53. "It's about time people
realized that white people and black people have
constitutional rights and we still have a First Amendment."
Cross-burning laws have faced challenges since at least 1992, when the
U.S. Supreme Court ruled in the Minnesota case that
governments cannot outlaw hate speech or racist symbols because that
would violate the ban on regulating speech based on
content. In 1993, courts in South Carolina and Maryland struck down
cross-burning laws.
But the Virginia cross-burning law was a tougher call, analysts said,
because it made "it unlawful for any person or persons,
with the intent of intimidating any person or group of persons, to burn
. . . a cross on the property of another, a highway or
other public place."
The clause emphasizing intimidation meant that "if you wanted to uphold
the statute, you could say it only applies to people who
are making a true threat to other people," said Yale University law
professor Jack Balkin. "It's not a slam-dunk case."
Instead, the Virginia Supreme Court majority decided that the statute
wrongly tried to criminalize cross-burning based on
dislike for a particular point of view -- that of the KKK and white
supremacists.
"It may still be possible to regulate this kind of activity," said
University of Virginia law professor Robert M. O'Neil. "But it
would have to be a very narrowly tailored law . . . that targeted
conduct, not expression, and certainly did not single out a
single viewpoint."
© 2001 The Washington Post Company
--
If we knew where knowledge goes when it evaporates, perhaps we might
learn to recover what we have lost and to reconstitute it as distilled
wisdom.
"How long will you judge unjustly, and show partiality toward the
wicked? Do justice to the poor and fatherless, deal righteously with
the afflicted and destitute. Rescue the poor and needy; save them from
the hand of the wicked." (A Psalm of Asaph, The Psalm for the Third
Day.)
How can we be sure that the unexamined life is not worth living?
Michael W. Posluns,
The Still Waters Group,
First Nations Relations & Public Policy
Daytime: 416 995-8613
Evening: 416 656-8613
Fax: 416 656-2715
36 Lauder Avenue,
Toronto, Ontario,
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