Crossed out? Whitehead backs challenge to VA law

WASHINGTON– The Supreme Court is considering whether cross burning is illegal intimidation or a free-speech right in a First Amendment case that could overturn state laws passed to discourage the Ku Klux Klan from targeting blacks.

The justices have been protective of the free-speech rights of the most controversial of groups, including flag-burners, adult entertainers, people who display swastikas, and those who set crosses ablaze.

Virginia is defending its cross-burning law, passed 50 years ago in reaction to Klan intimidation of blacks. In separate cases, three white men were prosecuted for lighting crosses during a Klan rally and in the yard of a black family in Virginia Beach.

The Virginia Supreme Court overturned the convictions of the men, ruling that the burnings were symbolic speech.

The state court relied on a high court decision a decade ago in another cross-burning case. The Supreme Court struck down a city hate crimes ordinance in St. Paul, Minnesota, that criminalized cross-burning aimed at frightening or angering others "on the basis of race, color, creed or gender.'' Virginia's law prohibits the activity when done to intimidate a person or group.

Justices heard arguments in the case Wednesday, December 11.

More than a dozen states have cross-burning laws. A ruling against Virginia could block most of them.

The arguments come four years after two white neighbors in Virginia Beach tried to burn a four-foot cross in the yard of James Jubilee, who is black. Jubilee moved his family out of the neighborhood.

In the other case, a Pennsylvania man was convicted of burning a 30-foot cross on private land in rural southern Virginia during a 1998 rally.

The Virginia law applies to cross burning on public or private land.

"Government needs to be able to protect people from those kinds of threats,'' said Kent Scheidegger, attorney for the Criminal Justice Legal Foundation, one of a number of groups that have taken sides in the case. That group backs Virginia.

John Whitehead, president of the generally conservative Rutherford Institute, said in court filings that states may not limit controversial speech just because of concerns about the public reaction to that speech.

The Bush administration, siding with Virginia, argued that cross burning "has a particularly strong association with acts of vigilantism and violence.''

"A person has no First Amendment right to burn a cross in order to intimidate others, whether or not he also intends to express an idea or philosophy,'' Solicitor General Theodore Olson told justices in court papers.

Virginia has passed a new version of the law intended to get around free speech concerns. The new law makes it a crime to burn anything, including a cross, as a threatening symbol. The case is Virginia v. Black, 01-1107.