U.S. Supreme Court Upholds VA Cross-Burning Ban But Sends Law Back to State Court for Refinement

Affiliate: ACLU of Virginia
April 7, 2003 12:00 am

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RICHMOND, VA – The United States Supreme Court today ruled that KKK member Barry Black could not be convicted of a crime under Virginia’s cross-burning statute because of the law’s unconstitutional presumption that all cross-burning is intended to intimidate. However, the court upheld the other main provision of the law, which allows the banning of cross-burning when it can be shown that its purpose it to intimidate others.

“This is a mixed bag of a decision about a fairly narrow aspect of the law,” said Kent Willis, Executive Director of the American Civil Liberties Union of Virginia. “We are pleased that the court reaffirmed free speech by making it clear that cross-burning, when it is not used as a direct threat, is protected by the Constitution.”

Black, who set fire to a cross on a private farm in Carroll County, had permission from the owner of the farm to use the area for a KKK rally and to ignite a cross as part of the ceremony. The ACLU of Virginia has provided legal representation to Black since the incident in 1999.

Four of the five Justices in the majority held that the presumption of intimidation in the Virginia law is unconstitutional on its face. Justices O’Connor, Stevens, Rehnquist and Breyer wrote that the burning of a cross, if used as a “statement of ideology” or a “symbol of group solidarity,” is protected by the First Amendment. Justice Scalia, the fifth member of the majority, agreed that it was wrong to convict Black but not that the law’s presumption of intimidation is unconstitutional on it face.

The nation’s High Court sent the case back to the Virginia Supreme Court to determine whether the constitutional problems with the statute can be resolved by eliminating the statute’s presumption of intimidation, and asked the court to review the convictions of two teenagers who burned a cross in Virginia Beach.

In upholding the part of the law that prohibits cross-burning with the intent to intimidate, the Court’s majority held that the Virginia law is not inconsistent with R.AV v. St. Paul, a 1992 Supreme Court ruling that struck down an ordinance prohibiting cross-burning and other kinds of threatening conduct, but only when it is motivated by racial, religious or gender bias. Unlike the ordinance in R.A.V., Virginia’s statute bans all cross-burning with the intent to intimidate and therefore does not discriminate against particular viewpoints.

The Court also held that the state could single out cross-burning because it is an especially “virulent form of intimidation” with a “long and pernicious history as a signal of impending violence.”

“We would have preferred that the Supreme Court agree with us by taking a purer First Amendment stand, but it did strike down the presumption in the law that cross-burning is always meant to intimidate,” added Willis. “In addition, the Justices sent a strong pro-speech message to the states by upholding the reversal of Barry Black’s conviction.”

Justices Souter, Ginsburg, and Kennedy ruled that the entire Virginia statute is an unconstitutional violation of free speech. Justice Thomas held that the statute is constitutional but his reasoning differed sharply from the majority, finding that the statute did not prohibit any protected speech – only intimidating, terroristic conduct.

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