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Is hate free speech? Does the First Amendment protect something as offensive as burning a cross? The Supreme Court will decide. (National).

Richars J. Elliott was annoyed. At a party in Virginia Beach, Virginia, 18-year-old Elliott told the other teens gathered there that he wanted to "get back" at his new neighbor, James S. Jubilee. Jubilee had been complaining about the noise from the Elliott family's backyard shooting range. Jubilee, who is black, and his wife, Susan, who is white, had recently moved to the area from Los Angeles, in an effort to get away from crime.

Elliott suggested burning a cross in Jubilee's yard.

He and Jonathan O'Mara, 18, and David Targee, the 17-year-old host of the party, all whites, made a wooden cross, four feet tall, then hopped into Targee's pickup truck and drove to the Jubilee home. O'Mara tried to set the cross on fire with lighter fluid, but only charred it before leaving it on the lawn for Jubilee to find the next morning.


The incident has turned into a profound question of free speech that the U.S. Supreme Court, the nation's highest legal authority, will decide in its term beginning Oct. 7. It is just one of about 80 cases the Court will resolve this year, tackling tough issues ranging from gun rights to what constitutes cruel and unusual punishment.

In the Virginia case, the Court will consider whether the Constitution protects cross-burning as a form of free speech, like flag-burning. The Court will hear arguments in the case, with its echoes of an uglier era in American race relations, and will render its decision sometime before the end of June.

This is actually two cases in one, because the case of the three teenagers has been combined with that of a Ku Klux Klan leader who burned a 25-foot cross at a Klan rally in Carroll County, Virginia, a few months later. The Klan leader, Barry E. Black, was tined $2,500, but not sentenced to jail. Elliott and O'Mara were sentenced to 90 days in jail and fined $2,500, and Targee was sentenced to 30 days.

It might have ended there, but the American Civil Liberties Union took the case, and hired a noted black lawyer, David P. Baugh, to represent the Klan leader and appeal his conviction. "The Constitution protects free speech for everybody, people you like and people you don't like," Baugh says. "If you have faith in a principle, you have to adhere to it even when it bothers you. As individuals, we face tests like that every day in our lives, and so does our democracy."

In an earlier cross-burning case, the Supreme Court overturned a St. Paul, Minnesota, ordinance that prohibited public expressions of racial or ethnic hatred. But the 1992 ruling did not put the issue to rest, and since then, lower courts have struck down some laws against cross-burning, but upheld others, depending on their wording.

At issue this time is a 50-year-old Virginia state law that bans public cross-burning that is meant to intimidate someone. Last November, the Virginia State Supreme Court, bitterly divided, 4 to 3, struck down the law and reversed the convictions in the two cases.

Cross-burning is a reminder of a time when blacks in America faced segregation, political and economic oppression, and violence. Racist groups have long used burning crosses among their symbols, and to intimidate blacks, Jews, and other minority groups.

The First Amendment to the Constitution protects freedom of speech and other forms of expression, but the Supreme Court has ruled over the years that it is acceptable for government to limit speech that threatens public safety. That balance between speech and safety is at the heart of the Virginia case.


The state Attorney General has insisted that the Virginia law's focus on intimidation makes it an acceptable restriction on free expression, and sets it apart from the St. Paul ordinance. Justice Leroy R. Hassell Sr. took that position in the Virginia Supreme Court's minority opinion, writing, "The First Amendment does not permit a person to burn a cross in a manner that intentionally places another person in fear of bodily harm."

But Justice Donald W. Lemons, writing for the majority, concentrated on the question of free expression. "Under our system of government, people have the right to use symbols to communicate," he wrote. "They may patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry."

In the 1992 case, the Supreme Court said the St. Paul law unconstitutionally limited speech based on its content--in that case, racist content. The Virginia law does not mention race, though some experts argue it is implied.

The Virginia case, Virginia v. Black, continues the Supreme Court's lively debate over free speech, the constitutional issue it revisits most often. In recent years, the Court has taken a broad view of the First Amendment, issuing rulings that angered both liberals and conservatives. It has struck down a federal law against burning the American flag, restrictions on sexually explicit magazines and cable television channels, and laws banning "hate speech"--all on free-speech grounds. The issue of cross burning will be another test of the Constitution's elasticity.

A Question for the Supreme Court: Does the First Amendment Protect Cross Burning?


* Why do you think the Founding Fathers made free speech a constitutionally protected right?

* Do you agree or disagree with the view that cross burning should be a protected exercise of free speech?

* In another upcoming First Amendment case, the Supreme Court will have to decide whether shooting at pictures of Saddam Hussein and Osama bin Laden is a protected form of expression, despite a Massachusetts law banning shooting at human figures. How would you vote?


To help students understand legal challenges to First Amendment protections, specifically whether cross burning is a protected form of speech.


STUDENT DEBATE: Break the class into two teams of "attorneys." One team represents the Virginia Attorney General's office, the other the American Civil Liberties Union (ACLU).

TEAM ONE: Students representing the Virginia Attorney General should construct an argument that the teens and the Ku Klux Klan leader burned the crosses to intimidate people, thereby violating Virginia law.

Next, they should construct an argument that intimidation is a threat to public safety, and therefore prohibited by earlier Supreme Court rulings.

QUESTIONS TO CONSIDER: Is intimidation a threat to public safety? Is it reasonable to assume, as Virginia Justice Leroy R. Hassell Sr. implies, that people who forced to witness a burning cross are made fearful? Might fearful people retaliate, thereby ensuring that there will be a threat to pubic safety?

TEAM TWO: The ACLU team should construct an argument that cross burning--even if it may be seen as intimidation--is not a threat to public safety.

QUESTIONS TO CONSIDER: Is cross burning different from flag burning? Does the fact that no one was physically assaulted as a result of the two cross burnings weaken the argument that cross burning poses a threat to public safety? If the Supreme Court outlaws cross burning as a form of expression protected by the First Amendment, might the Court also ban other unpopular forms of expression in future cases?

WEB WATCH: For more background on Virginia v. Black and summaries of other cases coming before the Court, see Click on "39 cases are on its docket."

RICHARD PEREZ-PENA, a former courts reporter for The New York Times, is now its bureau chief in Albany, New York.
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Author:Perez-Pena, Richard
Publication:New York Times Upfront
Geographic Code:1USA
Date:Sep 27, 2002
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