Court Voids Law Banning Cross Burning

New York Times/November 3, 2001

In a case with echoes from the civil rights movement, the Virginia Supreme Court struck down a state law yesterday that banned cross burning, saying the federal Constitution protects speech no matter how offensive.

The court in Richmond, which was divided 4 to 3, declared the law that dated from a time of Ku Klux Klan rallies in the early 1950's a violation of the First Amendment. The majority relied on a similar ruling by the United States Supreme Court in a Minnesota case in 1992.

"Under our system of government, people have the right to use symbols to communicate," the majority opinion said. "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."

Virginia's attorney general, Randolph A. Beales, said the state planned to ask the United States Supreme Court to review the case.

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

Although courts in Maryland and South Carolina struck down similar laws in the 1990's, 16 states and the District of Columbia currently have such laws, according to the National Conference of State Legislatures.

The Virginia law declared it illegal to burn a cross with the intent of intimidating anyone. Virginia prosecutors had charged three men in separate cross-burning incidents.

The prosecutors argued that the law was different from the one the Supreme Court rejected in the Minnesota case because, they said, their Legislature was trying to ban intimidation, not the racist symbolism of cross burning.

One of the cases decided yesterday, involving a white man named Barry Elton Black, had drawn national attention because the American Civil Liberties Union hired a black lawyer, David P. Baugh, to defend him. Mr. Black was convicted in 1999 for leading a Klan ceremony that ended in a cross burning.

The minority on the court supported the state's assertion that the Virginia law was not merely a blanket ban on hate speech.

The dissent, written by Justice Leroy Rountree Hassell Sr., said that the Virginia law "for almost 50 years has protected our citizens from being placed in fear of bodily harm by the burning of a cross."

In one of the cross-burning incidents, the dissent said, 15 people had gathered while drinking alcohol and told a neighbor of one of the men that they wanted to "get back" at him, suggesting that the cross burning was not a form of expression but an effort at intimidation.

"The framers of the First Amendment," the dissent said, "never contemplated that a court would construe the amendment so that it would permit a person to burn a cross in a manner that intentionally places citizens in fear of bodily harm."

But the majority opinion by Justice Donald W. Lemons said the Virginia Legislature "selectively chooses only cross burning" to ban, "because of its distinctive message."

The 1992 case, R.A.V. v. St. Paul, involved a white teenager who was accused of violating a hate-crime law by burning a cross on the lawn of a black family's house.

The court said the First Amendment prohibits the government from "silencing speech on the basis of its content." The justices struck down a St. Paul ordinance making it a crime to engage in speech or behavior likely to arouse "anger or alarm" on the basis of "race, color, creed, religion or gender."

Several legal experts said yesterday they doubted that the Supreme Court would agree to review the Virginia case.

"The Supreme Court has largely said racist speech is speech, and it is difficult for states to single out racist speech for criminal prosecution," said Robert A. Schapiro, a constitutional law professor at Emory University in Atlanta.

Mr. Schapiro said the state's argument that the law was not drafted to prevent offensive speech but to prevent intimidating behavior was intended to persuade the United States Supreme Court to wade into the issue again. But he said he doubted that approach would succeed.

A. E. Dick Howard, a constitutional law professor at the University of Virginia, said many courts had accepted the idea that even offensive communications are protected by the First Amendment.

"The thinking is," Mr. Howard said, "one man's offensive speech is somebody else's free expression."