For half a century, Virginia has banned what the state calls “the fear-inspiring practice of cross burning.” The law was passed in 1952 explicitly in response to racist acts of the Ku Klux Klan. Even so, the law is admittedly broad, banning cross burning by anyone whose intent is to intimidate others for any reason, whether or not the act springs from racial or religious bigotry. Is Virginia’s ban on cross burnings unconstitutional?
Case: Virginia v. Barry Elton Black, Richard Elliott and Jonathan O’Mara
Supreme Court #:
Issue: Is Virginia’s ban on cross burnings unconstitutional?
Argument Date: Wednesday, Dec. 11, 2002
Decision date:
Background: Three men convicted in two incidents are challenging the law’s constitutionality. On May 2, 1998, Richard Elliott and Jonathan O’Mara tried to burn a cross in the yard of Elliott’s next-door neighbor, an African-American man who had recently moved to the house with his wife and two sons. Late that night, they drove onto the man’s property, planted a cross, set it on fire and left. The man discovered it next morning, partially burned, about 20 feet from his house. Concerned about what might come next, he called police. Elliott and O’Mara were convicted but challenged the constitutionality of the law.
The other challenger, Barry Elton Black, is a member of the Klan. He led a Klan rally and cross burning in Carroll County, Va., on Aug. 22, 1998. The incident was staged on private property, with the owner’s permission, but in public view. The 25-foot-tall cross was visible along a stretch of state roadway. A witness who lived nearby recalled that one speaker at the rally said he would love to take a rifle and randomly shoot at blacks. Barry Black, who admitted his responsibility for the cross burning, was charged and convicted. He also appealed on constitutional grounds.
The Virginia Supreme Court consolidated the two cases and struck down the cross-burning law by a vote of four to three, finding that it prohibits a form of expression solely on the basis of its content.
The Commonwealth of Virginia now appeals to the U.S. Supreme Court.
ARGUMENT
For Virginia
Jerry Kilgore, attorney general; William Hurt, state solicitor
The law at issue is not intended to ban only certain messages and is therefore content neutral. It applies to anyone who burns a cross with the intent to intimidate anyone for any reason. The Virginia law does not limit its protection to those of a particular race, religion or background. It protects everyone.
The Constitution permits Virginia to ban all forms of intimidation, and cross burning is an especially virulent form of it. Those challenging the law cannot point to a single instance of anyone being prosecuted under the law for an innocent cross burning.
The business of constructing, transporting, erecting and igniting a cross suggests more than the effort of a single individual. It suggests the presence of a group, whose size and membership are unknown but whose malevolence is plain enough. The flames are not only a metaphor for destruction; they demonstrate a means of destruction. The perpetrators step beyond words and conventional symbolism to provide a physical example of what may come. Their message is: We may kill you or hurt you badly. We have already come to your home to do things hateful and dangerous in front of you, so we don’t just talk, we act.
For Black, Elliott and O’Mara
Professor Rodney Smolla, T.C. Williams School of law, University of Richmond; ACLU of Virginia
The Virginia law is unconstitutional because it bans the expression of certain viewpoints that, while unquestionably distasteful, are nevertheless protected forms of free expression. It should be struck down for the same reason that the Supreme Court struck down a St. Paul, Minn., ordinance 10 years ago, one that banned cross burnings that arouse anger or alarm in others on the basis of race, creed, religion or gender. The court held then that the law was improperly directed at certain viewpoints. The Virginia law suffers the same flaw.
Even though the Virginia statute is not explicitly worded to specify a disfavored ideological viewpoint, it nonetheless discriminates against content and viewpoint by targeting a particular symbol — the cross — and a distinct expressive ritual — burning one. Symbols play a central role in human communication, and if the government is permitted to select one symbol for banishment from public discourse, there are few principles to prevent it from banning others, even offending words.
Try as it might, Virginia cannot take the symbol of the burning cross out of its cross-burning law, nor can it escape the fact that it is intended to limit the communicative impact of cross burning.
Courts recognize a difference between abstract advocacy and actual lawless action. Violent and offensive rhetoric is protected, but the government is permitted to move against speech that is connected in some more direct sense to violent conduct.
FRIEND OF COURT BRIEFS
For Virginia
The U.S. Justice Department
Like Virginia and several other states, the United States prosecutes those who burn crosses to intimidate others. While the laws differ, they are intended to prevent conduct that instills fear in victims, increases the potential for violence and disrupts the life of the community. These laws are constitutional, even though in some cases they reach conduct that may be intended not only to intimidate but also to express an idea or viewpoint. Those who burn crosses cannot deny the history of the act in the United States and the association between acts of intimidating cross burning and acts of violence.
Fourteen states — Arizona, Connecticut, Iowa, Maryland, Massachusetts, Michigan, Nebraska, Nevada, North Carolina, New Jersey, Oklahoma, Oregon, Utah and Vermont; Carol Johnson, deputy New Jersey attorney general
Earlier Supreme Court decisions have left state legislatures powerless to pass laws that address the most virulent forms of bias-motivated threats or incitements to violence. The court’s rulings must be flexible enough to allow states to address these pressing problems.
California; Manuel Medeiros, state solicitor general, Sacramento
California’s law bans only cross burnings that involve trespassing.
For Black, Elliott and O’Mara
The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, Va.
However hateful and abhorrent it may be to thoughtful citizens, the activity charged as criminal in these cases is indisputably expressive. Were it not so highly communicative, the states wouldn’t seek to punish it.
Pete Williams covers the Supreme Court for NBC News.