| Nov. 3, 2001
Court protects cross burning
by Jean McNair The Associated Press
(Richmond, Va.) -- A sharply divided Virginia Supreme Court struck
down a state law against cross-burning Friday, saying such acts of
bigotry are a protected form of speech.
In a 4-3 ruling, the court threw out the convictions of three people
in two cases. One involved the burning of a cross at a Ku Klux Klan
rally; the other involved an attempted burning in the back yard of a
"Under our system of government, people have the right to use
symbols to communicate. They patriotically wave the flag or burn it in
protest; they may reverently worship the cross or burn it as an
expression of bigotry," Justice Donald W. Lemons said.
"While reasonable prohibitions upon time, place and manner of
speech, and statutes of neutral application, may be enforced, government
may not regulate speech based on hostility--or favoritism--towards the
underlying message expressed."
In dissent, Justice Leroy Hassell wrote that the law "for almost
50 years has protected our citizens from being placed in fear of bodily
harm by the burning of a cross."
Prosecutors had argued that the law, which carried up to five years
in prison and a fine of $2,500, was constitutional because it applied
equally to anyone who burned a cross to intimidate someone.
Attorney General Randolph A. Beales said he will appeal to the U.S.
In one of the cases decided Friday, Barry Elton Black of Johnstown,
Pa., was convicted in 1999 for leading a Klan ceremony in southwest
Virginia that ended in a cross being set on fire. The case drew national
attention when the American Civil Liberties Union hired a black lawyer,
David P. Baugh, to defend Black.
Baugh argued that the ban violated the constitutional right of free
speech, no matter how repugnant that speech might be. Black was fined
In the other case, from Virginia Beach, Richard J. Elliott and
Jonathan O'Mara were convicted of trying to set a cross ablaze in the
yard of Elliott's neighbor, who is black. Each was fined $2,500 and
sentenced to 90 days in jail. The men were drinking with a group of
people when the conversation turned to complaints about the neighbor.
The group built a crude cross that Elliott and O'Mara tried to ignite.
"As offensive as cross burning is, it is clearly protected
expression under the First Amendment," said Virginia ACLU director
Kent Willis. "The same constitutional right that allows you to burn
the flag or criticize the government also allows you to express your
opinions, as offensive as they may be."