Is cross burning a form of free speech?

The second case involves Barry Elton Black, a Ku Klux Klan member, who conducted a cross burning during a KKK rally on private land in Carroll County. The cross was at least 25 feet tall and could be seen from neighboring homes and a nearby highway. Mr. Black admitted he was responsible for burning the cross and was convicted at trial. He was fined $2,500.

All three men appealed their convictions. The Virginia Supreme Court consolidated their cases and, by a 4-to-3 vote, struck down the cross-burning law as a violation of the First Amendment. The court ruled that the law violated free-speech protections by singling out one form of intimidation. "Under our system of government, people have the right to use symbols to communicate," the Virginia Supreme Court said. "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."

The Virginia court said that general laws against vandalism, assault, and trespass could be used to prosecute those who seek to terrorize others.

The Virginia Attorney General's Office disagrees with the ruling. "The Virginia statute is content neutral," says Virginia Solicitor General William Hurd in his brief to the court. "It is not limited to disfavored subjects or particular victims. Rather, it applies to anyone who burns a cross with the intent to intimidate anyone for any reason."

Mr. Hurd says in his brief that not all speech is protected by the First Amendment. So-called "fighting words" that are an immediate incitement to violence and intimidation fall outside the free-speech mandate, he says.

"Cross burning is an especially virulent form of intimidation," he writes. "Since it is constitutionally permissible to ban all forms of intimidation, it is constitutional to ban its most virulent forms."

US Solicitor General Theodore Olson agrees. "Cross burning, because of its historical association with vigilantism and violence, has a unique potential for instilling fear in its victims, disrupting the life of the community, and precipitating other unlawful conduct," he says in his brief to the court.

J. Joshua Wheeler of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va., says the particular symbol at issue is irrelevant. "What this case is about is giving the government the authority to choose for its citizens what symbols we can adopt to express our political viewpoint," he says.

"Symbols mean different things to different people, and the question we have to ask ourselves is, Do we really want the government in the business of deciding for us what symbols mean to us?"

Page: 1 | 2