At issue is whether it is protected expression, or threat that can be banned
AP, Dec. 9, 2002
By Larry O’Dell, Associated Press
RICHMOND, Va. — Racial hatred was a somewhat abstract concept to Susan Jubilee, who grew up in an open-minded white family, so the gravity of her husband’s words did not sink in immediately.
James Jubilee, who is black, had just found a partially charred cross in the front yard of their Virginia Beach home. He told his wife he had stowed the 4-foot cross in the garage because he didn’t want her or their two sons to be scared.
Someone wanted her family out of the neighborhood, Susan Jubilee said, and they used the longtime Ku Klux Klan symbol to deliver the message.
“That’s the first warning. Next, they will come back and burn the house down,” she said.
Four years after the 1998 incident, the U.S. Supreme Court will hear arguments Wednesday on whether burning a cross is constitutionally protected expression or an overt threat that can be banned by the states. The justices’ ruling, expected next year, could affect laws in about a dozen other states.
The Virginia Supreme Court ruled 4-3 last year that the state’s 50-year-old law against cross burning violated the right to free speech.
Virginia Attorney General Jerry Kilgore asked the U.S. Supreme Court to review the decision.
“We believe that when someone intentionally burns a cross for the purpose of intimidating another person, it ought to be a crime and states around the country ought to be able to protect their citizens,” Kilgore said in an interview.
Two neighbors were convicted of attempting to burn the cross on the Jubilees’ lawn — one of two Virginia cases involved in the Supreme Court review.
In the other case, Barry Black of Johnstown, Pa., was convicted of burning a cross during a Klan rally on private land. His trial drew national attention when the American Civil Liberties Union hired a black lawyer, David P. Baugh, to defend Black.
University of Richmond law professor Rodney Smolla, a prominent First Amendment lawyer, took over for Baugh on appeal and will urge the Supreme Court to affirm the Virginia justices’ ruling.
“Our position is that it violates the First Amendment to single out any particular symbol or symbolic ritual for special punishment, even though that symbolic ritual may be highly offensive to most people,” Smolla said.
The Virginia Supreme Court relied heavily on a U.S. Supreme Court decision 10 years ago striking down a St. Paul, Minn., ordinance that outlawed cross-burning if it was aimed at others “on the basis of race, color, creed or gender.”
Kilgore said that ruling should not apply in Virginia because the state’s law protected everyone, not just those of targeted because of race or other characteristics.