The justices will eventually decide whether it is a legitimate curb on intimidation or a violation of free speech.
A U.S. Supreme Court ruling in the Virginia case could affect similar bans in more than a dozen other states. The Virginia Supreme Court has already struck down the state's ban as unconstitutional.
Virginia State Solicitor William Hurd was passionate in his defense of the state ban during argument before the U.S. Supreme Court Wednesday.
"It is not just hate speech," Hurd said of cross burning, usually the symbol of the Ku Klux Klan. "If you are black, Catholic or Jewish," the meaning is, 'We are going to kill you.' That's the message of cross burning, backed up by 100 years of history."
In contrast, Rodney Smolla, a University of Richmond law professor, was relatively detached as he represented three men charged with violating the state ban.
The ban "certainly chills a wide variety of expression," he said.
Deputy Solicitor General Michael Dreeben, representing the Bush administration, generally supported Virginia's argument.
But Dreeben was lectured from the bench by conservative Justice Clarence Thomas, who rarely speaks in the courtroom.
Thomas, the only black justice, chided Dreeben for downplaying the emotional impact of cross burning.
"Aren't you understating the effects of the burning cross?" Thomas said, adding that it represented "100 years of lynching" and a "reign of terror" by the Klan.
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.
In a petition to the U.S. Supreme Court, the state said the ban is not directed at the Klan, 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 that 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 that 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 that 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 intimate and applies to everyone, not just a fringe group espousing a particular form of speech.
During Wednesday's argument, State Solicitor Hurd said Virginia's ban "protects a very important freedom -- freedom from fear. And it does so without violating freedom of speech."
From the bench, Justice Sandra Day O'Connor said she found "troublesome" a provision of the law that allowed juries to take for granted that cross burning is automatically a form of intimidation.
Hurd said prosecutors still have to prove that element during trial.
Hurd was supported from the bench by conservative Justice Antonin Scalia, usually a strict constructionist when it comes to the First Amendment.
"It's not just speech," Scalia said, repeating himself for emphasis. "It's action with the intent to convey a message."
Defending the right to use cross burning as a political message, law professor Smolla told the justices, "When the state targets a particular symbol or type of ritual it engages in (unconstitutional) content discrimination."
Smolla said the rally at which the cross was burned contained other political speech, such as criticism of then-President Bill Clinton and first lady Hillary Rodham Clinton.
And he insisted there was a difference between brandishing a weapon and burning a cross.
"If you were a black man," Scalia told him from the bench, "you'd rather see a man with a rifle than a man with a burning cross."
The Supreme Court should hand down a ruling in the case within the next several months.
(No. 01-1107, Va. vs. Black et al.)
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