However, in a separate part of the ruling, a Supreme Court plurality struck down Virginia's ban on cross burning, citing procedural flaws. The ruling came in a challenge to the state law.
Virginia's statute treats any cross burning as obviously meant to intimidate, and the justices said that provision is too broad for the First Amendment.
Justice Clarence Thomas, the court's only black member, dissented from the plurality. Thomas refused to grant that the First Amendment was involved in the case, but argued that even it was, juries should be permitted to assume intimidation by the mere fact of a cross burning.
Citing the savage history of cross burning, Thomas quoted a favorite aphorism of the late Justice Oliver Wendell Holmes: "A page of history is worth a volume of logic."
Writing for the court, Justice Sandra Day O'Connor said the action has a romantic Scottish history -- "Sir Walter Scott used cross burnings for dramatic effect in The Lady of the Lake."
But that history has become lost in continuing tradition of racial hate.
"Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan," O'Connor said. From the Klan's inception, "cross burnings have been used to communicate both threats of violence and messages of shared ideology."
Banning cross burning, which such action is designed to intimidate rather than convey a political message, is constitutional, O'Connor said.
"The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation," she added.
O'Connor was joined by three other justices in ruling that Virginia's ban is unconstitutional on its face. The statute allows the state to arrest, prosecute and convict someone based solely on the fact of cross burning itself, and assumes that all cross burnings are designed to intimidate.
Justice Antonin Scalia agreed with that judgment in respect to one set of Virginia defendants, but said a lower court should have the opportunity of evaluating the state law's assumption of intimidation.
Justice David Souter, joined by two other justices, concluded that the statute is unconstitutional and cannot be saved.
Thomas dissented on his own. Thomas said that even "assuming the statute implicates the First Amendment, in my view, the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problem."
Virginia had asked 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."
But 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 that they hold racist views.
In May 1998, the two men and a juvenile drank "large quantities of beer" and 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.
Quoting from a 1995 Florida case, Virginia told the U.S. Supreme Court that 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."
Monday's U.S. Supreme Court ruling upholds the state court decision in part, throws out part of it and sends the case back for a rehearing.
(No. 01-1107, Va. vs. Black et al.)
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