U.S. Justices to Hear Appeal on Cross-Burning Law

The Supreme Court announced Tuesday that it would decide whether cross-burning can be made a crime because it is an inherently intimidating act.

A ruling in a Virginia case, due early next year, will likely determine whether such “hate speech” laws can stand.

Ten years ago, the court described cross-burning as a kind of symbolic speech, like burning the flag or wearing a black armband during the Vietnam War as a message of protest.

The 1st Amendment does not permit the government to “prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” said conservative Justice Antonin Scalia, quoting an earlier opinion by the late liberal Justice William J. Brennan.

But the high court did not say whether all cross-burning laws were invalid.

Since then, lawyers have espoused at least three different views on the issue.

Some say all such laws are unconstitutional because they forbid the display of a symbol based on its message.

Others say the laws can be upheld only when an offensive symbol is displayed in an especially threatening way. Under this view, it would be illegal to burn a cross on the lawn of a black family but not in an open field far removed from other homes.

A third view is that a burning cross or a Nazi swastika is inherently intimidating and its display can be outlawed in public, where others can see it.

Virginia adopted a broad law against cross-burning in 1952 to combat the Ku Klux Klan. Its law makes it a felony to “burn on the property of another, a highway or other public place ... with the intent of intimidating any other person.” It says the burning of the cross itself is “evidence of an intent to intimidate.”

California has a similar but narrower law. It forbids anyone to burn “a cross or other religious symbol on the private property of another ... for the purpose of terrorizing the owner or occupant.”

California’s law has been upheld by the state courts, but the Virginia law was struck down in November by its state Supreme Court.

That Virginia court overturned convictions in two cases. In the first, Klan member Barry Elton Black was accused of leading a cross-burning at a rally in an open field in rural southwestern Virginia. In the second, two Virginia Beach men and a juvenile burned a small makeshift cross less than 20 feet from the home of a black family.

In his appeal, Virginia Atty. Gen. Jerry Kilgore called cross-burning a kind of “domestic terrorism,” not free speech, and he urged the high court to revive the state’s law.

In a one-line order, the justices said they would hear the case of Virginia vs. Black, 01-1107, during the fall.

Also Tuesday, the court made it harder to use alleged lapses by a trial lawyer as a reason for reversing a death sentence years later.

By an 8-1 vote, the justices reinstated a death verdict for a Vietnam veteran who in 1980 robbed a jewelry store in Memphis, Tenn., shot a policeman and two others on the street, then beat an elderly couple to death.

At the trial, the defense lawyer argued that his client, Gary Cone, was insane, a result of stress from Vietnam and his drug abuse.

But after the jury convicted Cone, his lawyer decided against calling more witnesses in the sentencing portion of the trial and he waived presenting a closing argument.

Last year, the U.S. 6th Circuit Court of Appeals in Cincinnati reversed the death sentence because of the lawyer’s failure to argue for sparing Cone’s life.

Disagreeing, Chief Justice William H. Rehnquist said the lower court erred in viewing the case through the “harsh light of hindsight.”

Cone’s lawyer made a “tactical decision” to waive his closing argument so that the chief prosecutor would not have one final chance to recite the horrifying facts of Cone’s crimes, he said in Bell vs. Cone, 01-400. Only Justice John Paul Stevens dissented.