The case before the court, Virginia v. Black, questions whether the Virginia statute, which bans cross-burning “with the intent of intimidating any person or group of persons,” violates constitutionally protected forms of free speech, even though the statute prohibits cross burning regardless of whether the act is racially or religiously motivated.
The Supreme Court will now decide how far states can go to prevent cross-burning and whether the act legally constitutes intimidation or if it is a form of constitutionally protected speech.
The Virginia law was passed in 1952 with the intention of discouraging groups such as the Ku Klux Klan from burning crosses on private property as a symbol of racial hatred or as a threat against African Americans and other minorities. The ban was expanded in 1968 to include cross-burning in any public place and amended again in 1975 to define the act as carrying the intent to intimidate.
The case inspired spirited debate among the justices according to reports from the courtroom. Justice Clarence Thomas, who rarely speaks during oral arguments, called cross-burning part of “100 years of lynching in the South.”
“This was a reign of terror, and the cross was a sign of that,” said Thomas, the court’s only African American member, who was raised in a segregated area of Pin Point, Georgia in the 1950s. “It is unlike any symbol in our society. It was intended to cause fear, terrorize.”
The justices appeared concerned with the link between cross-burning and racial violence, comparing the symbolism of a burning cross to that of a weapon.
“The cross has acquired a potency that is at least equal to that of a gun, ” Justice David Souter said.
In the past, the high court has been protective of other forms of controversial expression, protecting the right to burn flags and display swastikas, among other issues.
The current challenge stems from two separate cases consolidated by the Virginia Supreme Court when it ruled in a 4 to 3 decision that the state law is unconstitutional in regulating a form of protected expression.
One case involves two white teenagers who were charged with attempting to burn a cross in the yard of an interracial couple in 1998 in the Virginia Beach area. The other involves a Klan leader who was arrested for the burning of a 25-foot tall cross on private property during a 1998 Klan rally in southern Virginia.
The defendants pointed to a 1992 Supreme Court decision that struck down a hate crimes ordinance in St. Paul, Minnesota that banned cross-burning aimed at frightening others “on the basis of race, color, creed or gender.” The court found that the ordinance was unconstitutional as it was too general and attempted to punish people for protected expression.
In the 1992 decision, however, the court called the act of burning a cross in someone’s front yard “reprehensible.”
In court documents, attorneys for the three defendants argued that “when cross-burning is used as a vehicle to express threats or intimidation, it is not constitutionally protected, provided that the law under which it is prosecuted is not unconstitutionally infected.”
Justice John Paul Stevens asked if the state was only targeting cross-burnings because they are obnoxious speech.
Virginia solicitor William Hurd responded that such speech is allowed but that threatening speech should be prohibited.
The Bush administration sided with the state of Virginia, as did nine other states who filed friend-of-the-court briefs in support of the ban.