Supreme Court Revisits Cross-Burning Ban

By Robert B. Bluey | July 7, 2008 | 8:20pm EDT

( - Ten years after the U.S. Supreme Court struck down an ordinance that banned cross burning, the court revisited the matter Wednesday, this time reviewing a Virginia statute that makes it illegal to burn a cross with the intent to threaten or intimidate someone.

Three men who were convicted under the Virginia law have used the First Amendment as a defense. But an attorney representing the state defended the law's constitutionality on the grounds that it protects citizens from groups like the Ku Klux Klan that might pose a threat to blacks, Catholics or Jews.

"The cross is a symbol the Klan has used to threaten bodily harm," Virginia solicitor William H. Hurd told the justices. "It is illegal to burn a cross with the intent to intimidate."

Some of the justices appeared to buy into that view, including Justice Clarence Thomas, the court's only black member. Thomas said cross burning conveys a message of racism that permeated the South for more than 100 years.

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

The case follows a 1992 Supreme Court ruling involving a St. Paul, Minn., ordinance that prohibited cross burning with the intent to arouse anger "on the basis of race, color, creed, religion or gender." The court only focused on the second part of the St. Paul ordinance, however, which gave rise to the Virginia challenge - whether a cross-burning statute that focuses on intimidation violates the First Amendment.

University of Richmond law professor Rodney A. Smolla, an attorney for the Virginia men, said the court should uphold the Virginia Supreme Court's decision in favor of his clients. Smolla argued that the facts of this case are nearly identical to the St. Paul case.

To single out cross burning, Smolla argued, represents viewpoint discrimination, which the court has consistently said violates the First Amendment. He also compared the concept of burning a cross to burning a flag, an action the court said was permissible in a 1989 decision.

"There is a huge difference between burning a flag and burning a cross," countered Justice Ruth Bader Ginsburg. "A flag is a symbol of our government. A cross is not an attack on the government, it's meant to threaten people."

A Virginia trial court found all three men guilty of intimidating individuals for burning crosses. A state appeals court upheld their convictions, but the state supreme court, relying on the R.A.V. v. City of St. Paul ruling, overturned the decision.

The case stems from two separate incidents. In May 1998, Richard J. Elliott and Jonathan O'Mara burned a cross in the yard of a black Virginia Beach man, according to court records. Another incident took place in August 1998 in Carroll Country, Va., when Barry Elton Black burned a cross at a KKK rally that frightened a neighbor.

Hurd stood by the convictions and told the justices the First Amendment was not at issue since the law only banned actions that were found to be threats. He said Barry Elton Black, for instance, came from Pennsylvania to lead the rally in southwest Virginia after learning that blacks and whites were holding hands.

The Bush administration defended Virginia's law. It has also received the support of 14 states that either have similar laws on the books or want the authority to forbid such an activity.

Michael R. Dreeben, a deputy solicitor general in the Justice Department, spoke about the historical context of cross burning and its use to instill fear in some individuals.

But during his argument, Thomas, who rarely makes comments or asks questions, interrupted Dreeben. Thomas said Dreeben was "understating the symbolism" of cross burning.

The court was again without Chief Justice William H. Rehnquist, who is recovering from a knee operation.

The case is Virginia v. Black and will be decided before next June.

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