May 29, 2002 4 min read

WASHINGTON (AP) – The Supreme Court agreed Tuesday to weigh state efforts to ban the racially charged practice of cross burning against the free speech rights of Ku Klux Klansmen or others who use the flaming cross as a symbol of intimidation. The court will review a 50-year-old Virginia law outlawing cross burning, and its ruling could affect laws in about a dozen states.

The ruling, expected next year, could clarify how far states may go to discourage a uniquely provocative practice endowed with some constitutional protection but rooted in violence and racial hatred.

The Virginia law was passed in reaction to Klan intimidation of blacks during the days of Jim Crow. Beatings or other violence sometimes accompanied a cross burning, or the cross might be left as a threat of future violence.

“It is important that Virginia have the ability to protect her citizens from this type of intimidation,” said Jerry Kilgore, the state’s attorney general. “Burning a cross to intimidate someone is nothing short of domestic terrorism.”

A state court struck down the law as unconstitutional last year, ruling that “it prohibits otherwise permitted speech solely on the basis of its content.”

The court also said the law was too broad, and tossed out the convictions of three men.

The state court relied heavily on a Supreme Court case from 10 years ago, in which the court struck down a local hate crimes law in St. Paul., Minn., that criminalized cross-burning aimed at frightening or angering others “on the basis of race, color, creed or gender.”

When combined with that earlier ruling, a decision against the state this time could effectively block nearly any law banning the practice.

Virginia’s law banned burning a cross as a means of intimidation. The state argues that the law focuses on the threat implied by a burning cross, and not on the constitutionally protected thinking that may be behind it.

The issue for the court this time around will be whether the Virginia law and those like it strike the correct balance – prohibiting something that is threatening or potentially violent without punishing racist or bigoted views.

“The Virginia law does not limit its protection to those of a particular race, religion or background,” Kilgore told the justices in legal papers. “It protects everyone.”

Cross burning is rare now, but the Klan still uses the symbol during some rallies, and there are scattered reports of the practice elsewhere.

The Supreme Court will review two cases from 1998 in which white men were convicted for burning a cross as a means of intimidating or scaring people.

In one case, a Klansman lit a 30-foot cross during a rally on private land in rural southern Virginia. A black family driving past saw the display, and sped away in fear, prosecutors said.

In the other, two men capped a night of drinking by trying to burn a cross on the lawn of a black neighbor in Virginia Beach. The neighbor had complained about noise from a makeshift firing range one of the men had set up in his yard. There is no evidence that the men belonged to the Klan or subscribed to its views.

“Freedom of speech does not include the right to threaten violence,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation. The pro-law enforcement organization filed a friend of the court brief urging the high court to take the case.

“In the context of American race relations, burning a cross in a black family’s yard is a threat,” Scheidegger said.

State and federal courts have divided over whether the Supreme Court’s 1992 ruling dooms all laws banning cross burning, or only those that focus on the ethnic or sex characteristics of the victim.

Courts in three states – Florida, Washington, and California – have said the ruling does not apply to their laws. The laws of four states – South Carolina, Maryland, New Jersey and Virginia – have been struck down.

Virginia asked the Supreme Court to use this case as a way to clarify its earlier ruling.

Nine other states filed a friend of the court brief also asking for clarification.

Virginia has since 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.