Both Sides of Cross-Burning Debate Applaud Supreme Court Ruling

By Robert B. Bluey | July 7, 2008 | 8:04 PM EDT

( - The U.S. Supreme Court ruled Monday that laws banning cross burning do not violate the First Amendment as long as they are limited to intimidating or threatening expression.

The divided court said the law passed constitutional muster only as it pertains to intimidation. Justice Sandra Day O'Connor, who wrote the opinion, and three other justices made up a plurality that found another part of the law unconstitutional. The court also sent back other matters for further review.

Supporters of the cross-burning ban, including Virginia Gov. Mark Warner and Attorney General Jerry Kilgore, hailed the decision on the grounds that the state could continue to prosecute offenders.

The ruling was not a total victory for Virginia, however. O'Connor said not everyone who burns a cross could be charged with a crime. That includes Barry Elton Black, who was convicted for carrying out the act at a Ku Klux Klan rally in 1998. The court said his conviction couldn't stand.

"It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross," O'Connor wrote. "But this sense of anger or hatred is not sufficient to ban all cross burnings."

Justices David Souter, Anthony Kennedy and Ruth Bader Ginsburg argued that the Virginia statute was unconstitutional based on the court's 1992 ruling that struck down a St. Paul, Minn., ordinance prohibiting cross burning.

John W. Whitehead, president of the conservative Rutherford Institute, praised the court for distinguishing between individuals who carry out acts meant to intimidate and others who are exercising a form of free expression.

"It's a really nice balance," said Whitehead, whose organization filed a brief opposing the Virginia law. "It protects the First Amendment, but it also says the state has an interest in protecting citizens who have a reasonable fear that they could be killed, injured or hurt by somebody who is intentionally aiming something at them."

Virginia's law unfairly assumed that all cross burnings were carried out to intimidate a person or a group, Whitehead said. The statute has since been revised, he noted, meaning that the two other men convicted - Richard J. Elliott and Jonathan O'Mara - will get another hearing.

Unlike Black's act at a public rally, however, Elliott and O'Mara allegedly burned a cross in the yard of a black man.

Their conduct should not be protected under the First Amendment, said Kent S. Scheidegger, legal director for the Criminal Justice Legal Foundation, which filed a brief in support of Virginia.

"Making threats is not part of free speech," he said. "Freedom of speech is not absolute. There are some things you can't do, and threatening people is one of them."

Scheidegger said the Virginia Supreme Court went too far when it ruled in November 2001 that the law infringed on an individual's free-speech rights. The Virginia court relied heavily on the decision in R.A.V. v. City of St. Paul, partly because it was broad, Scheidegger said.

The St. Paul ordinance covered more than just intimidating or threatening expression. Instead, it prohibited cross burning or placing a Nazi swastika on someone's lawn to intentionally arouse anger "on the basis of race, color, creed, religion or gender."

While the Virginia statute did not stipulate all those provisions, it still singled out a particular form of expression with the KKK as the target, said Josh Wheeler, associate director of the Thomas Jefferson Center for the Protection of Free Expression, which filed a brief opposing the law.

He said the case gave the Supreme Court an opportunity to define what constituted a threat, which remained unclear after the R.A.V. decision in 1992.

"The concern from a free-speech point of view is that threats be interpreted in a way that reaches into protected expression," Wheeler said. "If the Supreme Court has failed to give a narrow definition of threats, that potential is much greater."

The effect of the Supreme Court's decision on the other 49 states is widely unknown, Wheeler said, since many have statutes with different wording.

In Virginia, however, the state's top elected officials said the ruling was a victory for its citizens. Kilgore, who attended oral arguments before the court last December, compared the act of cross burning to "domestic terrorism" seeking to intimidate people.

"Our law involves two important freedoms - freedom of speech and freedom from fear," Kilgore said in a statement. "Our statute preserves the first and secures the second."

See Earlier Story:
Supreme Court Revisits Cross-Burning Ban (Dec. 12, 2002)

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