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Supreme Court upholds Virginia ban on cross burning • Tuesday April 8, 2003

Rejected free speech arguments
CNN, Apr. 7, 2003

WASHINGTON (CNN) — The Supreme Court Monday upheld key portions of a 50-year-old Virginia law banning cross burnings where the intent is racial intimidation.

But it struck down a provision of the law which declared that any cross burning is on its face evidence of intimidation.

The closely divided court rejected arguments that the practice of burning crosses is a constitutional form of free speech.

The 5-4 decision written by Justice Sandra Day O’Connor splintered both the more liberal and conservative wings of the Supreme Court.

O’Connor was joined by Chief Justice William Rehnquist and Associate Justices Antonin Scalia, John Paul Stevens and Stephen Breyer in key portions of the ruling.

“We conclude that while a state consistent with the First Amendment may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional,” the ruling said.

In dissent, the court’s only African-American justice, Clarence Thomas, said he agreed with the majority that states may ban cross burnings, but disagreed they could ever represent free speech.

Thomas said cross burning already constitutes an illegal act of intimidation, and therefore does not need to be seen as a test of free speech.

“This statute prohibits only conduct, not expression,” Thomas said. “Just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point,” he said.

The Ku Klux Klan and its sympathizers, during what Thomas described as “a reign of terror,” for decades set crosses ablaze in ceremonies.

Fourteen states and the District of Columbia have passed statutes that prohibit cross burning.

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