Virginia v. Black, Barry E., et al.

Docket: 01-1107

Appealed From: Virginia Supreme Court (553 S.E.2d 738)

Oral Argument: Dec. 11, 2002

Opinion Issued: 6-3 for Virginia (O'Connor-April 7, 2003)

Subject: Cross-burning, intimidation, 1st Amendment

Questions presented: Is the Virginia statute that bans cross-burning "with the intent of intimidating any person or group of persons" overbroad and in violation of the 1st Amendment, even though the statute reaches all such intimidation and is not limited to any racial, religious, or other content-focused category?

BY KELLY YUEH and JACK C. DOPPELT, MEDILL NEWS SERVICE

In 1952, the Virginia General Assembly enacted a law to ban cross-burning on another person's property without permission. This was in response to a time when racial tensions were high and the practice was historically associated with Ku Klux Klan activity. The Klan burned crosses to instigate threats or acts of violence against minorities, particularly African-Americans.

In 1968, the ban was expanded to cover any public place. In 1975, language was again added that deemed cross-burning as carrying the intent to intimidate. Though the law was amended several times, it makes no specific reference to racial hatred.

The legislation, which concentrates on the threat implied by a burning cross, carries a maximum sentence of five years in prison and a $2,500 fine.

On the night of May 2, 1998, Jonathan Stephen O'Mara and Richard J. Elliott, both 18, were drinking and partying at David Targee's home in Virginia Beach, Va., which is near the North Carolina state line.

Elliott told several of the 15 people present that his neighbor, James S. Jubilee, had complained about discharged firearms in Elliott's backyard, which contained a makeshift firing range maintained by Elliott's father. Elliott wanted to "get back" at Jubilee, an African American whose interracial family had moved to the neighborhood four months earlier.

Jubilee's Caucasian wife, Susan, was pregnant with twins at the time. Jubilee said they moved from Los Angeles to the Pungo section of Virginia Beach to raise their two young sons in a peaceful environment away from big-city crime.

Elliott suggested burning a cross in Jubilee's yard. Elliott, O'Mara and Targee are all white, but there is no evidence that they were Klan members.

The three young men made a crude wooden cross in the garage at Targee's house. They used Targee's truck, which displayed a Confederate flag sticker, to take the 4-by-2-foot cross to Jubilee's house.

Elliott handed the cross to O'Mara, who placed it in the Jubilee's yard about 20 feet from the house. O'Mara attempted unsuccessfully to set it on fire using lighter fluid. According to Targee, Elliott remained in the back seat of the truck during the entire incident.

The next morning, Jubilee was pulling out of his driveway when he discovered the cross in his yard with a burned spot in the middle. He said he initially broke the cross over his knee in anger. He put the cross in the garage before calling police.

However, he said his anger turned to fear that the burnt cross might be a symbol of violence to come. Less than a year after the incident, the Jubilees moved from Pungo to a Virginia Beach subdivision.

Because the cross was never fully ablaze, the teen-agers were charged with attempting to burn the cross. Fire investigators considered the incident a hate crime.

On Feb. 22, 1999, O'Mara pleaded guilty to felony charges of conspiracy and attempting to burn a cross with the intent to intimidate. Under his plea agreement, O'Mara had the right to appeal the constitutionality of Virginia's cross-burning statute.

He was sentenced to 90 days in jail and fined $2,500. At O'Mara's sentencing hearing, he admitted drinking at least 24 beers at Targee's party.

Targee, who was 17 at the time of the crime, agreed to plead guilty to the same charges in Juvenile and Domestic Relations Court and to testify against Elliott. In exchange, he was not tried as an adult and his convictions are not part of his adult record. He was sentenced to serve 30 days in jail.

During Elliott's trial, Targee showed jurors a "white power" tattoo on his hand and admitted using racial slurs to describe welfare recipients.

A jury took about three hours over two days to convict Elliott of attempted cross-burning. He was acquitted of conspiring to commit a felony. Elliott was sentenced to 90 days in jail and fined $2,500.

Elliott was very apologetic during his sentencing when he addressed the Jubilees directly because he was "mortified and totally embarrassed" about being associated with bigotry, according to his attorney, Kevin E. Martingayle.

"He was tripping over himself apologizing to everyone," Martingayle said.

Nearly four months after the Jubilee incident, a bigger, more organized act of cross burning happened in Virginia. On Aug. 22, 1998, Ku Klux Klan leader Barry Elton Black led a demonstration on private property in Carroll County, Va., also near the North Carolina border. The rally, which drew about 30 people mostly from outside Virginia, included burning a cross more than 25 feet tall. The cross was visible to nearby homeowners and motorists for three-quarters of a mile along a state highway.

Sheriff Warren Manning arrested Black at the end of the rally. During Black's trial, prosecutors said an African-American family drove past the display and sped away in fear.

Rebecca Sechrist, who is white, testified that she and her family felt threatened by the Klan activity on property adjoining theirs. She said the Klan participants used the "n-word" among other racial epithets.

"They talked real bad about the blacks and the Mexicans," Sechrist said. "One guy stood up and talked about how he'd like to take a .30-.30 [rifle] and just randomly shoot the blacks . . . I was scared our home would get burned."

Sechrist said she and her two young children were terrified by the sight of people dressed in white robes and pointed white hoods parading around a flaming cross. However, she said, her husband's aunt had given the Klan permission to hold the demonstration on the private farm.

The evidence showed that Black, who is from Johnstown, Pa., was in charge of the ceremony, but did not actually set fire to the cross, made of metal and covered in cloth.

On June 23, 1999, an all-white Carroll County jury took less than 30 minutes to convict the white supremacist of the felony. The six men and six women took another 40 minutes to impose the maximum $2,500 fine, but no jail time.

The American Civil Liberties Union drew national attention to the case when the organization hired an African-American lawyer, David P. Baugh, to defend Black. Baugh said the law violated the right to free speech, no matter how distasteful that speech might be.

"When I take a case, I defend a principle," Baugh said. "Most constitutional rights are challenged from the extremes. It is the extreme views that go against the grain of the majority; you know they have to be protected. The principle of the 1st Amendment is that every idea should be discussed."

Baugh said defending the Constitution did not mean he had to endorse Black's opinions.

"You can't advocate free speech for Louis Farrakhan without protecting Mr. Black," Baugh said. "The Constitution is a big wall that separates us from our government. Unfortunately, Mr. Black and I are on the same side of the wall."

As Black's case progressed, O'Mara and Elliott appealed their convictions to the Virginia Court of Appeals. They said the statute was unconstitutional because it impermissibly infringed upon expressive conduct, which is speech protected by the 1st and 14th Amendments. The men said the state law violated both the U.S. and Virginia constitutions.

On Oct. 3, 2000, the Virginia Court of Appeals unanimously upheld O'Mara's and Elliott's convictions. The appeals court said the statute "targets only expressive conduct undertaken with the intent to intimidate another, conduct clearly proscribable both as fighting words and a threat of violence."

The court said a flaming cross is "inextricably linked . . . to sudden and precipitous violence - lynchings, shootings, whippings, mutilations and home-burnings," a "connection [with] forthcoming violence [that] is clear and direct."

Thus, the justices decided that even though cross-burning is a form of speech, the message is beyond the protection of the 1st Amendment and can be banned by the government.

The defendants tried unsuccessfully to rely on a 1992 U.S. Supreme Court case that found a Minnesota ordinance proscribing cross-burnings unconstitutional. In R.A.V. v. City of St. Paul, the high court examined a St. Paul, Minn. law banning cross-burnings, swastikas and other symbols expressing messages of intolerance.

St. Paul's Bias-Motivated Crime Ordinance prohibited the placement of any symbol on public or private party that aroused anger in others on the basis of race, color, creed, religion or gender.

The U.S. Supreme Court concluded that the ordinance was unconstitutional because it was overbroad and criminalized protected expression.

Justice Antonin Scalia wrote: "Although the phrase in the ordinance 'arouses anger, alarm or resentment in others' has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to 'fighting words,' the remaining, unmodified terms make clear that the ordinance applies only to 'fighting words' that insult, or provoke violence on the basis of race, color, creed, religion or gender. Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use 'fighting words' in connection with other ideas -- to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality-are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects."

However, the high court also wanted to clarify its stance on cross-burning.

"Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."

The Virginia Appeals Court decided that its statute was different from Minnesota's because it banned cross-burnings with the intent to intimidate someone, while the St. Paul ordinance prohibited such action based on the characteristics of the subjects addressed, including a person's race, color, creed, religion or gender.

On Dec. 19, 2000, Black's conviction was upheld by the Virginia Appeals Court, which based its decision on the opinion issued in the O'Mara and Elliott cases.

O'Mara, Elliott and Black then consolidated their appeals to the Virginia Supreme Court.

On Nov. 2, 2001, the Virginia Supreme Court in a 4-3 decision found the state law prohibiting cross-burning was unconstitutional and threw out the convictions of O'Mara, Elliott and Black. The state high court said such acts are a protected form of speech under the 1st Amendment.

The majority opinion stated that even if the law's intent to fight racism and bigotry was laudable, it still violated free speech by banning otherwise permitted actions based on content.

"In an atmosphere of racial, ethnic and religious tolerance, the General Assembly acted to combat a particular form of intimidating symbolic speech - the burning of a cross," wrote Justice Donald W. Lemons. "It did not proscribe the burning of a circle or a square because no animating message is contained in such an act."

But, he continued, "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."

Lemons said the Virginia law was "analytically indistinguishable" from the Minnesota statute unanimously overturned by the U.S. Supreme Court in 1992.

Justice Leroy Roundtree Hassel, Sr., the court's only black judge, led the dissent:

"The majority opinion invalidates a statute that for almost 50 years has protected our citizens from being placed in fear of bodily harm by the burning of a cross . . . Without question, the framers of the First Amendment never contemplated that a court would construe that Amendment so that it would permit a person to burn a cross in a manner that intentionally places citizens in fear of bodily harm."

After the state high court decision, Virginia legislators responded by banning all intimidating burning. In an attempt to circumvent 1st Amendment issues, Virginia Gov. Mark R. Warner, a Democrat, signed a new law making it a crime to burn anything, including crosses, as a threatening symbol.

The new law also contains two clauses about where burning is banned. Owners need to approve burnings on private land, and objects cannot be burned on public land if it will likely result in a "breach of the peace."

The Commonwealth of Virginia also appealed the state high court decision to the U.S. Supreme Court to clarify how states can protect citizens from intolerance-based speech and crimes.

Nine states -- Arizona, California, Georgia, Kansas, Massachusetts, Missouri, Oklahoma, Utah and Washington -- filed an amicus brief in support of the Virginia law.

The supreme courts in Maryland, New Jersey, South Carolina and Virginia have struck down their state's cross-burning laws by invoking the 1992 U.S. Supreme Court ruling. But supreme courts in three other states - California, Florida and Washington - have ruled that their states' cross-burning laws were acceptable under the St. Paul ruling.

Thirteen states and the District of Columbia have criminal prohibitions against cross-burning.

While cross-burning is rare now, the practice still exists as a form of physical intimidation and political expression.

On May 28, 2002, the U.S. Supreme Court granted certiorari in the case, and allowed the Criminal Justice Legal Foundation to file an amicus brief.

On April 7, 2003, the Court reversed, holding that Virginia can outlaw cross burnings that are carried out with the intent to intimidate.

Justice Sandra Day O'Connor wrote the lead opinion in the case, which concluded that cross burning that intends to intimidate is not a form of expression protected by constitutional free-speech rights.

"The history of cross burnings in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence," O'Connor wrote.

In so holding, the Court distinguished Virginia's statute from the Minnesota law in R.A.V. v. City of St. Paul. in that Virginia's law dealt only with cross-burning that intended to intimidate and did not "single out for opprobrium only that speech directed toward one of the specified disfavored topics."

However, Justice O'Connor went on to invalidate the part of the Virginia law that created a prima facie assumption that cross burning intends to intimidate.

Recalling the history of the Ku Klux Klan, O'Connor wrote that the Klan came to use cross burning as a way to represent the Klan itself, its ideology and solidarity. In that sense, cross burning can be protected speech, O'Connor concluded for a plurality of four.

"It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross," O'Connor wrote. "But this sense of anger or hatred is not sufficient to ban all cross burnings."

Justice Antonin Scalia concurred with the plurality, but concluded that the case should be sent back to the Virginia Supreme Court to consider the prima facie provision.

Justice Clarence Thomas, the court's only black justice, dissented, saying he would uphold the law in its entirety, even the part that allows a jury to draw an inference of intent to intimidate from the cross burning itself. Thomas also said the law prohibited only conduct, not expression.

"In every culture, certain things acquire meaning well beyond what outsiders can comprehend," Thomas wrote. "That goes for both the sacred, (referring to the 'unique position of the American flag in our Nation's 200 years of history'), and the profane. I believe that cross burning is the paradigmatic example of the latter."

In American culture, Thomas stated emphatically, "cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence."

In contrast, three justices found the law unconstitutional, reasoning that it does not permit singling out cross burning as a crime. They were Justices David Souter, Ruth Bader Ginsburg, and Anthony Kennedy.