WASHINGTON, May 28 (UPI) -- The Supreme Court agreed Tuesday to hear argument next term on whether Virginia's ban on cross burning violates the free speech guarantees of the First Amendment.
A lower court has ruled it does, even though the ban is directed at cross burnings designed to intimidate.
Virginia is asking the Supreme Court to clarify a 1992 decision that struck down a Minnesota ban on cross burning, saying the Virginia statute has some important differences.
"For nearly a half-century, the Commonwealth of Virginia has banned the fear-inspiring practice of cross burning," the state said in its petition to the Supreme Court. "Enacted in 1952, the statute ... was a well-advised response to domestic terrorism by the Ku Klux Klan."
However, the ban is not directed at the Klan, the state said, but at anyone who uses a cross burning to intimidate someone else for any reason.
Richard Elliot and Jonathan O'Mara of Virginia Beach are not members of the Klan, and court records do not show they hold racist views.
In May 1998, the two men and a juvenile, after drinking large quantities of beer, tried to burn a cross in the yard of Elliott's black neighbor, James S. Jubilee, in an attempt to intimidate him and his family, the state said.
Earlier, Jubilee had asked Elliott's mother about weapons being fired in the rear of the Elliot home. The woman explained her son had a firing range. Though the conversation was cordial, it apparently angered Elliott and O'Mara enough to move them into action, according to the state.
Jubilee woke up the next morning to find a partially burned cross on his lawn 20 feet from his house.
After a state judge refused to dismiss the charges on First Amendment grounds, Elliott was convicted of attempted cross burning and sentenced to 90 days in jail and a $2,500 fine.
O'Mara entered a conditional guilty plea -- based on whether his charge was dismissed on appeal, and received the same sentence and fine. Half of the jail time and $1,000 of the fine were suspended.
Meanwhile, in Carroll County in the rural southwest of the state, the state prosecuted Barry Elton Black.
Unlike Elliott and O'Mara, Black is a Klansman, the state said, and headed a rally and cross burning in August 1998.
The event took place on private property with the permission of the owner, but in full public view. The cross was 25 to 30 feet tall, the state said, and could be clearly seen along a stretch of state highway.
Black was arrested by the county sheriff and a deputy for violation of the cross burning ban. After a trial judge rejected his First Amendment argument, Black was convicted and fined $2,500.
Black's case was consolidated with Elliott and O'Mara's before the Virginia Supreme Court, where a majority eventually ruled the state cross burning ban, "despite the laudable intentions of the General Assembly to combat bigotry and racism ... is facially unconstitutional because it prohibits otherwise permitted speech solely on the basis of its content, and the statute is overbroad" in violation of the U.S. Constitution.
By a vote of 4-3, the Virginia Supreme Court struck down the state's cross burning ban, saying it was "analytically indistinguishable" from a City of St. Paul ban struck down by the Supreme Court of the United States in 1992.
In asking for review, Virginia told the U.S. Supreme Court that unlike the St. Paul ban, its state ban is directed at cross burnings designed to intimidate and applies to everyone, not just a fringe group espousing a particular form of speech.
Quoting from a 1995 Florida case, Virginia told the U.S. Supreme Court it wasn't trying to violate free expression: "Few things can chill free expression and association to the bone like night-riders outside the door and a fiery cross in the yard."
Though not yet scheduled, argument should be heard sometime next fall.
(No. 01-1107, Virginia vs. Black et al)
