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The 'Terror' in Cross Burning.

That cross burning is highly repugnant, invoking extreme intimidation and fear to millions of Americans, the Supreme Court is in full agreement. But the unanimity between the nine justices ended there in a case testing the constitutionality of Virginia's law outlawing cross burning.

Readers will recall [see The World & I , Febrary 2003, "A Burning Message: Protected Speech?"] that in 1952 Virginia passed a law making cross burning a crime. The crime had two elements, both of which had to be proven by the state beyond a reasonable doubt: (1) a person burned a cross (2) with the intention of intimidating "any person or group of persons." In 1975, the law was modified such that the act of cross burning itself would be admitted as "evidence of an intent to intimidate a person or group of persons." No longer did the state have to prove the intent to intimidate; it was presumed to exist by the fact that someone had burned a cross.

In 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. The rally was held on private farm property, with the permission of the property owner. At the end of the rally, the Klan ignited a 30-foot cross, seen by many people driving nearby or living near the farm. Black was charged with violating the cross-burning law. He was convicted and fined $2,500.

Around the same time, two drunken white teenagers wanted to "get back" at a black neighbor. Late at night (and after many beers) they decided to plant a cross in the neighbor's yard and light it. They planted the cross, sprayed it with lighter fluid, but could never really get the cross to burn. Nonetheless, the black neighbor was horrified the next morning at finding the partially charred cross on his front lawn. The two teens, Richard Elliot and Jonathan O'Mara, were both convicted under the cross-burning law and sentenced to 90 days in jail plus a $2,500 fine.

The three cases were consolidated on appeal to the Virginia Supreme Court, which threw out the convictions on the grounds that the cross- burning law violated the First Amendment free speech guarantees and is therefore unconstitutional.

The U.S. Supreme Court agreed, albeit not with a unanimous voice. Writing for the majority, Justice O'Connor noted that "when a cross burning is used to intimidate, few if any messages are more powerful." O'Connor also recognized that Virginia's original cross-burning law was constitutional; it required the state to prove beyond a reasonable doubt that the burner of the cross intended to intimidate others. Nonetheless, O'Connor went on to identify two constitutionally fatal flaws in the current law.

First, the 1975 amendment let the state off the hook of having to prove intent to intimidate beyond a reasonable doubt. With the presumed intent provision, a defendant would have to actively rebut the presumption or risk nearly certain conviction. In order to rebut the presumption, however, the defendant would have to take the stand. But that conflicts with a defendant's Fifth Amendment right to remain silent; that is, the defendant has the constitutional right not to take the stand.

In a jury trial, no inference whatever can be made by a jury if the defendant exercises his constitutional right not to take the stand. But, with Virginia's presumed intent provision, a jury must infer intent from the defendant's silence. In practice, then, the presumed intent provision denies a defendant his constitutional right to remain silent. "The First Amendment does not permit such a shortcut," O'Connor concludes.

Second, O'Connor continues, "The history of cross burning indicates a burning cross is not always intended to intimidate. ... Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott's The Lady of the Lake." Further, in the eyes of another Klansman, a burning cross doesn't inspire fear at all, but rather patriotic fervor and ideological allegiance. Thus, Virginia's law sweeps in perfectly legal cross burnings--artistic cross burnings or private political gatherings not intended to intimidate or cause fear--within the scope of criminal activity.

For these two reasons, O'Connor, joined by four other justices, held the law as overly broad and thus unconstitutional under the First Amendment, affirming the ruling of the Virginia Supreme Court.

Justice Thomas, the only African American on the high court, took a diametrically opposed approach to the issue. Implicitly cataloging the other eight white justices as outsiders, Thomas states that in "every culture, certain things acquire meaning well beyond what outsiders can comprehend." Describing the Klan as a terrorist organization, Thomas views Virginia's anticross-burning law as a prohibition against terrorist activity, not a ban on any type of expression. That is, given the violent history of cross burning in the United States, invoking extreme fear of rape, torture, hanging, and other brutal violence, Thomas views cross burning as criminal conduct, not some form of expression. "The connection between cross burning and violence is well ingrained" in the American psyche, representing impending terror and lawlessness. "It is simply beyond belief that, in passing the statute ... the Virginia legislature was concerned with anything but penalizing conduct it must have viewed as particularly vicious. Accordingly, this statute prohibits only conduct, not expression."

The divide between Thomas and the other justices would appear to be of differing perspectives. Victims of such heinous brutality at the hands of white supremacists view cross burning as a terrorist act. Others, viewing from the sideline, see it as highly repugnant and carrying a vicious symbolic message, but a message nonetheless.

In any event, the Supreme Court, in Virginia v. Black, did not rule that cross burning is a constitutionally protected expression, just that Virginia's presumed intent to intimidate provision went too far. Watch for the Virginia legislature to revise its cross-burning law back to its pre-1975 language in response to this case.n

David Slade has been a member of the U.S.Supreme Court bar since 1986 and practices law in Bowie, Maryland. His email address is scf
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Title Annotation:three cases go before the Supreme Court
Author:Slade, David
Publication:World and I
Geographic Code:1USA
Date:Jul 1, 2003
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