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Court: Cross burning may be banned based on intent

WASHINGTON (BP)–A state may outlaw cross burnings designed to intimidate people targeted by such acts but not cross burnings in general, the U.S. Supreme Court ruled April 7.

The justices decided a Virginia law barring cross burning “with the intent of intimidating any person or group” is not unconstitutional, thereby disagreeing with a ruling by the state’s Supreme Court. The high court, however, said the burning of a cross also could mean a person is expressing “core political speech.”

“The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation,” Associate Justice Sandra Day O’Connor wrote for the court. “Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning’s long and pernicious history as a signal of impending violence.

“The protections afforded by the First Amendment … are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution,” O’Connor wrote.

In distinguishing between possible intentions in cross burning, the high court agreed with the Virginia Supreme Court’s decision, however, to overturn the conviction of Barry Black. Black led a 1998 Ku Klux Klan rally in Carroll County, Va., in which a 25-foot-tall cross was burned in an open field with the owner’s permission.

The U.S. Supreme Court vacated the lower court’s decision to strike down the convictions of two other men involved in a cross-burning incident. Richard Elliott and Jonathan O’Mara were convicted for partially burning a cross on the property of James Jubilee, an African American, in Virginia Beach. The high court returned their cases to the Virginia Supreme Court for further proceedings.

Part of the high court’s opinion focused on a provision in the Virginia law that treats “any cross burning as prima facie evidence of intent to intimidate.” The justices ruled that provision, which was added to the law in 1968, is unconstitutional. The original law was adopted in 1952.

“The Supreme Court dealt as judiciously as possible with a very difficult issue,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “We all want to maximize freedom of speech protections, but clearly there are limitations at the far edges of free speech. For instance, it’s illegal to yell ‘fire’ in a crowded theater if there is no fire.

“Cross burning has a vicious, violent and reprehensible history. White supremacists like the Klan have blasphemously used the cross and the burning of it to terrorize African Americans,” Land said. “This particular freedom of expression cannot be separated from its barbaric and terroristic past. As I understand it, this is what the court has ruled. They were quite right to do so.”

Virginia Attorney General Jerry Kilgore hailed the opinion, calling it a “great day” for the state. “Our law involves two important freedoms — freedom of speech and freedom from fear,” he said in a written statement. “Our statute preserves the first and secures the second.”

The justices voted 6-3 in support of the court’s ruling that a state law that prohibits cross burnings meant to intimidate does not violate the First Amendment. Joining O’Connor in the majority were Chief Justice William Rehnquist and Associate Justices John Paul Stevens, Antonin Scalia, Clarence Thomas and Stephen Breyer.

Scalia and Thomas, however, wrote opinions in which they dissented from portions of the four-person plurality’s opinion. Thomas contended the law in its entirety was not a problem.

The high court upheld a limitation on pro-life demonstrations near abortion clinics in its 2000 Hill v. Colorado ruling because the state has a legitimate interest in protecting women seeking abortions from “unwanted advice,” Thomas wrote.

“Yet, here, the plurality strikes down the statute because one day an individual might wish to burn a cross, but might do so without an intent to intimidate,” he said. “That cross burning subjects its targets, and, sometimes, an unintended audience … to extremely emotional distress, and is virtually never viewed merely as ‘unwanted communication,’ but rather, as a physical threat, is of no concern to the plurality. Henceforth, under the plurality’s view, physical safety will be valued less than the right to be free from unwanted communications.”

Associate Justice David Souter, joined by Associate Justices Anthony Kennedy and Ruth Bader Ginsburg, wrote a dissenting opinion, arguing the Virginia law was unconstitutional and the lower court’s ruling should be affirmed.

Cross burning was used by the Ku Klux Klan as a method of intimidation and a “threat of impending violence,” as well as a symbol of shared ideology, after the KKK was revived in 1915, according to the high court. The Klan first came into existence after the Civil War but was shut down by the time the reconstruction of the South closed in 1877, the court said.

The Klan’s acts of violence in the 20th century included beatings, mutilations, bombings and murders, including lynching.

The case is Virginia v. Black.