Bob Peale
angeli ribelli
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Court rejects state's ban on cross burning
By JEAN McNAIR
Associated Press
RICHMOND - A sharply divided Virginia Supreme Court on Friday ruled that a state ban on cross burning is unconstitutional.
In a 4-3 ruling, the court threw out convictions against three people in two cross-burning cases. One involved the burning of a cross at a Ku Klux Klan rally, and the other involved the attempted burning of a cross in the back yard of a black person.
``Under our system of government, people have the right to use symbols to communicate. They patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry,'' said the ruling written by Justice Donald W. Lemons.
``While reasonable prohibitions upon time, place, and manner of speech, and statutes of neutral application may be enforced, government may not regulate speech based on hostility - or favoritism - towards the underlying message expressed,'' Lemons wrote.
In dissent, Justice Leroy Hassell wrote that ``the majority opinion invalidates a statute that for almost 50 years has protected our citizens from being placed in fear of bodily harm by the burning of a cross.''
Virginia's General Assembly enacted the cross-burning law in 1952 in response to Klan activity. The law was amended several times.
``A number of other states have anti-cross-burning laws, especially those states that have seen a lot of Klan activity, but many of them are limited to the burning of crosses on the property of others,'' said Rodney Smolla, a University of Richmond law professor who helped the American Civil Liberties Union argue the case. ``Virginia may be the only state where cross-burning is outlawed in any context,'' he said.
Attorney General Randolph A. Beales said he will appeal to the U.S. Supreme Court.
``Cross burning with the intent to intimidate is a form of domestic terrorism, which is intolerable in a free society,'' Beales said in a statement.
Kent Willis, executive director of the ACLU in Virginia, said he expected the court to strike down the law.
``As offensive as cross burning is, it is clearly protected expression under the First Amendment. The same constitutional right that allows you to burn the flag or criticize the government also allows you to express your opinions, as offensive as they may be, through burning a cross,'' Willis said.
An intermediate appeals court, the Virginia Court of Appeals, had upheld the convictions.
In one case in Carroll County, Barry Elton Black of Johnstown, Pa., was convicted in 1999 of violating the cross-burning law when he led a 1998 Klan ceremony that ended in a wooden cross being set on fire. He was fined the maximum $2,500 but received no jail time. He could have been sentenced to up to five years in prison.
The case drew national attention when the ACLU hired a black lawyer, David P. Baugh of Richmond, to defend Black.
Baugh argued that Virginia's ban on cross burning violated the constitutional right to free speech, no matter how repugnant that speech might be to many people.
In another case from Virginia Beach, two men tried to set a cross ablaze in the yard of one of the men's neighbors, who is black. The men were part of a group of people who had been drinking when the conversation turned to complaints about the neighbor of Richard J. Elliott and Elliott's desire to get back at the neighbor. The group built a crude cross, which Elliott and Jonathan Stephen O'Mara tried to ignite on the neighbor's property.
A jury convicted Elliott of attempting to burn a cross with the intent to intimidate but acquitted him of a conspiracy charge. He was sentenced to 90 days in jail and a $2,500 fine.
O'Mara pleaded guilty to both felonies. A judge sentenced him to 90 days on each charge, to be served concurrently, and a $2,500 fine. The judge suspended 45 days and $1,000 of the fine.
Prosecutors had argued that the state law was constitutional because it applied equally to anyone who burned a cross with the purpose of intimidating someone.
By JEAN McNAIR
Associated Press
RICHMOND - A sharply divided Virginia Supreme Court on Friday ruled that a state ban on cross burning is unconstitutional.
In a 4-3 ruling, the court threw out convictions against three people in two cross-burning cases. One involved the burning of a cross at a Ku Klux Klan rally, and the other involved the attempted burning of a cross in the back yard of a black person.
``Under our system of government, people have the right to use symbols to communicate. They patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry,'' said the ruling written by Justice Donald W. Lemons.
``While reasonable prohibitions upon time, place, and manner of speech, and statutes of neutral application may be enforced, government may not regulate speech based on hostility - or favoritism - towards the underlying message expressed,'' Lemons wrote.
In dissent, Justice Leroy Hassell wrote that ``the majority opinion invalidates a statute that for almost 50 years has protected our citizens from being placed in fear of bodily harm by the burning of a cross.''
Virginia's General Assembly enacted the cross-burning law in 1952 in response to Klan activity. The law was amended several times.
``A number of other states have anti-cross-burning laws, especially those states that have seen a lot of Klan activity, but many of them are limited to the burning of crosses on the property of others,'' said Rodney Smolla, a University of Richmond law professor who helped the American Civil Liberties Union argue the case. ``Virginia may be the only state where cross-burning is outlawed in any context,'' he said.
Attorney General Randolph A. Beales said he will appeal to the U.S. Supreme Court.
``Cross burning with the intent to intimidate is a form of domestic terrorism, which is intolerable in a free society,'' Beales said in a statement.
Kent Willis, executive director of the ACLU in Virginia, said he expected the court to strike down the law.
``As offensive as cross burning is, it is clearly protected expression under the First Amendment. The same constitutional right that allows you to burn the flag or criticize the government also allows you to express your opinions, as offensive as they may be, through burning a cross,'' Willis said.
An intermediate appeals court, the Virginia Court of Appeals, had upheld the convictions.
In one case in Carroll County, Barry Elton Black of Johnstown, Pa., was convicted in 1999 of violating the cross-burning law when he led a 1998 Klan ceremony that ended in a wooden cross being set on fire. He was fined the maximum $2,500 but received no jail time. He could have been sentenced to up to five years in prison.
The case drew national attention when the ACLU hired a black lawyer, David P. Baugh of Richmond, to defend Black.
Baugh argued that Virginia's ban on cross burning violated the constitutional right to free speech, no matter how repugnant that speech might be to many people.
In another case from Virginia Beach, two men tried to set a cross ablaze in the yard of one of the men's neighbors, who is black. The men were part of a group of people who had been drinking when the conversation turned to complaints about the neighbor of Richard J. Elliott and Elliott's desire to get back at the neighbor. The group built a crude cross, which Elliott and Jonathan Stephen O'Mara tried to ignite on the neighbor's property.
A jury convicted Elliott of attempting to burn a cross with the intent to intimidate but acquitted him of a conspiracy charge. He was sentenced to 90 days in jail and a $2,500 fine.
O'Mara pleaded guilty to both felonies. A judge sentenced him to 90 days on each charge, to be served concurrently, and a $2,500 fine. The judge suspended 45 days and $1,000 of the fine.
Prosecutors had argued that the state law was constitutional because it applied equally to anyone who burned a cross with the purpose of intimidating someone.
