The Supreme Court ruled yesterday that states can ban cross burnings that are intended to intimidate onlookers and that such laws do not violate the First Amendment because of the long history of cross burning as a "particularly virulent form of intimidation."
Though the court did not entirely validate Virginia's 50-year-old law on cross burning, it voted 6-3 to overturn a Virginia Supreme Court ruling in 2001 that the law was an unconstitutional infringement of free speech.
"Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence," Justice Sandra Day O'Connor wrote in the majority opinion upholding the basic validity of the law.
However, in affirming that Virginia could ban cross burnings without violating free-speech rights, the court struck down the state's cross burning law on other grounds: Within the majority, a four-justice plurality rejected a provision added to the law in 1968 that instructs juries to consider the act of burning a cross in public to be evidence of an intention to intimidate.
O'Connor wrote that this so-called prima facie evidence provision makes the law unconstitutional because it "makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case.
"The provision permits the Commonwealth to arrest, prosecute and convict a person based solely on the fact of cross burning itself," O'Connor said.
O'Connor's opinion left open the possibility that the Virginia law could be salvaged if the state supreme court reinterprets what the prima facie evidence section requires or severs that section from the rest of the law.
The widely anticipated ruling produced a number of opinions, including a dissent by two of the court's liberal justices that attacked Virginia's ban. Justices David H. Souter and Ruth Bader Ginsburg, who were joined by Justice Anthony M. Kennedy, said they would overturn the law because of its unconstitutional "tendency to suppress a message."
Justice Clarence Thomas wrote a separate opinion. He said the Virginia law was a permissible prohibition of "intimidating conduct," not expression, and he dissented from the plurality's ruling that the prima facie evidence section rendered the law unconstitutional.
"Not making a connection between cross burning and intimidation would be irrational," Thomas wrote.
Virginia Attorney General Jerry W. Kilgore (R) issued a statement hailing that part of the ruling that upheld the Virginia law on First Amendment grounds. Calling cross burning "nothing short of domestic terrorism," Kilgore said, "Our law involves two important freedoms -- freedom of speech and freedom from fear. Our statute preserves the first and secures the second."
The case arose out of two separate cross burning incidents in Virginia in 1998. In the first, Barry Black led a Ku Klux Klan rally in Carroll County at which a large cross was burned. Black was convicted under the state law by a jury that was instructed that "the burning of a cross by itself" was sufficient evidence of his intent to intimidate.
In the second case, Richard Elliott and Jonathan O'Mara attempted to burn a cross in the yard of James Jubilee, Elliott's black next-door neighbor in Virginia Beach. O'Mara pleaded guilty to attempted cross burning but reserved the right to challenge the constitutionality of the state law. Elliott was convicted under the state law, but the jury at his trial was not instructed that cross burning "by itself" was evidence of an intention to intimidate.
The Virginia Supreme Court overturned the two convictions and invalidated O'Mara's guilty plea. While yesterday's ruling upheld the constitutional validity of cross burning laws like Virginia's, it also reaffirmed the lower court's overturning of Black's conviction because of the jury instructions that were based on the prima facie evidence section of the statute. Regarding Elliott and O'Mara, the Supreme Court instructed the Virginia Supreme Court to reconsider their cases in light of yesterday's ruling.
The high court opinions traced the lurid and violent history of cross burning in the United States, from the birth of the Ku Klux Klan in the 19th century to the most recent Virginia incidents. Because of that history, O'Connor wrote, "when a cross-burning is used to intimidate, few if any messages are more powerful."
With this as the background, O'Connor, Thomas, Chief Justice William H. Rehnquist and Justices John Paul Stevens, Antonin Scalia and Stephen G. Breyer all agreed that laws banning cross burning with the intention to intimidate do not violate the First Amendment. But there was less agreement on the prima facie evidence section, with only Rehnquist, Stevens and Breyer joining O'Connor in striking down the Virginia law on that ground.
The main dissenting opinion, written by Souter, argued that while cross burning often conveys "an essentially intimidating message," that is not always its only intention. "Even when the symbolic act is meant to terrify, a burning cross may carry a further, ideological message of white, Protestant supremacy," Souter wrote.
The dissenters added that the prima facie evidence section of the law "skews the statute toward suppressing ideas," a violation of the First Amendment
Thomas, the court's only black justice, began his opinion by observing, "In every culture, certain things acquire meaning well beyond what outsiders can comprehend."
Thomas went on to recount the history of the Ku Klux Klan, "a terrorist organization," and cross burning in Virginia to argue that the Virginia law was aimed at unlawful conduct, not constitutionally protected expression. He noted that the Virginia law was enacted in 1952, when the state was still legally segregated and shortly before Virginia officials would embark on a campaign of "massive resistance" to the Supreme Court's school desegregation ruling two years later.
"It strains credulity to suggest that a state legislature that adopted a litany of segregationist laws self-contradictorily intended to squelch the segregationist message," Thomas wrote. "Even for segregationists, violent and terroristic conduct, the Siamese twin of cross-burning, was intolerable. . . . It is simply beyond belief that, in passing the statute now under review, the Virginia legislature was concerned with anything but penalizing conduct it must have viewed as particularly vicious."
The case is Virginia v. Black, No. 01-1107.