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The Supreme Court

Allowing Cross Burning

No doubt when you think of cross burning, you think of people in white robes burning crosses to intimidate blacks. No matter how much you might disagree with someone who chooses to burn a cross, do they have a constitutional right to burn that cross?

Court Connotations

Prima facie in Latin means “first look.” Prima facie evidence means that an act gives the appearance of guilt.

You may think that issue was decided years ago, but a case that made it all the way to the Supreme Court involving the legality of a cross-burning law just made it to the Supreme Court in 2003. The Supreme Court ruled on April 7, 2003, that a state does have the right to ban cross burning carried out with the intent to intimidate, but it cannot write a law that stipulates that any cross burning is evidence of an intent to intimidate. The Supreme Court struck down a Virginia cross-burning law as unconstitutional because it was too broad.

The case started when Barry Black led a Ku Klux Klan (KKK) rally in Carroll County, Virginia on August 22, 1998. There were 25 to 30 people at the gathering that occurred on private property with the permission of the owner, who was in attendance. The sheriff of Carroll County learned about the KKK rally and observed the cross burning from the road.

Supreme Sayings

In questioning Virginia's state solicitor during oral arguments, the Justices seemed appalled at the state's position. Here are some examples:

“So, if you burn a cross on a hill outside the city, everyone in the city is intimidated?”

—Justice Kennedy

“So, even if a cross is burned in a desert somewhere, it's enough to sustain a conviction? Suppose he burned an O?”

—Justice Stevens

After observing the burning, the sheriff asked who was in charge. Black admitted he led the rally, so he was charged with violating Virginia's ban on cross-burning. Black was convicted of violating a Virginia statute that makes it a felony “for any person … with the intent of intimidating any person or group … to burn … a cross on the property of another, a highway or other public place” and specifies that “any such burning … shall be prima facie evidence of an intent to intimidate a person or group.”

Black appealed the case to the Virginia Appeals Court at which his conviction was upheld, so he then appealed to the Virginia Supreme Court. The Virginia Supreme Court combined his appeal with the appeal of two others convicted on the same law in a separate incidence.

The second case started on May 2, 1998 when Richard Elliott and Jonathan O'Mara tried to burn a cross in the yard of James Jubilee, an African American who lived next door to Elliott and was married to a white woman. Elliott and O'Mara planted a cross on Jubilee's lawn to get back at him for firing a gun in his backyard. Elliott and O'Mara were not affiliated with the KKK. Their cross-burning attempt was not successful and when Jubilee got up the next morning he found a partially burned cross on his lawn.

Elliott and O'Mara were charged with a felony for violating Virginia's cross-burning law. O'Mara pleaded guilty, but reserved the right to challenge the law's constitutionality. Elliott pleaded not guilty, but was later convicted.

In a ruling that combined these two cases, the Virginia Supreme Court ruled that the cross-burning statute is unconstitutional and that the prima facie evidence provision renders the statute too broad because the “probability of prosecution under the statute chills the expression of protected speech.” The state appealed the case to the U.S. Supreme Court.

The U.S. Supreme Court did strike down the Virginia law. In writing the opinion for the Court, Justice O'Connor said:

  • “The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, 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. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm … the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision 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.
  • “It is apparent that the provision as so interpreted 'would create an unacceptable risk of the suppression of ideas.' … The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that a State will prosecute—and potentially convict—somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.”

Protecting freedom in the country does often mean that you must protect the right for someone to say or do something you strongly oppose and may even find offensive. You can see from these cases that protecting First Amendment rights can sometimes be in conflict with setting community norms.

In the next section, I'll review privacy laws, which as I have mentioned sometimes conflict with the public's right to know.

book cover

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.


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