The cross-burning decision

This wasn't supposed to happen here

[Reprinted from Issues & Views April 21, 2003]

Perhaps it was too much to hope that members of the U.S. Supreme Court could unanimously rise above the temptation to take the obvious, popular road. In this convoluted Court decision, the good news is that three of the Justices, at least, understand the constitutional ramifications of banning what amounts to free expression, and dissented from the majority opinion.

The case [Virginia v. Black, et. al.] involved two separate incidents in Virginia, where white men burned crosses. In 1998, Barry Black led a Ku Klux Klan rally in Carroll County, where a cross was burned on private property with the owner's permission. Black was arrested for "burning a cross with intent to intimidate a person or group of persons." Citing Virginia's law, the judge instructed the jury that "the burning of a cross by itself is sufficient evidence from which you may infer the required intent." Black was found guilty and fined $2,500.

In the second incident, also in 1998, in Virginia Beach, Richard Elliott and Jonathan O'Mara drove a truck onto the property of Elliott's black next door neighbor, James Jubilee, planted a cross, and set it on fire. The men claimed that their act was intended to get even with Jubilee over a prior dispute about Elliott using his own backyard as a firing range. Elliott and O'Mara were charged with "conspiracy to commit cross burning." O'Mara pleaded guilty, but reserved the right to challenge the constitutionality of Virginia's cross-burning statute. He was sentenced to 90 days in jail and fined $2,500. Elliott was found guilty by a jury of "attempted cross burning," but was acquitted of the charge of "conspiracy to commit cross burning." He was sentenced to 90 days and a $2,500 fine. Virginia's Court of Appeals confirmed the convictions of both men.

In November, 2001, the Virginia Supreme Court struck down the state's 50-year-old ban on cross-burning, ruling it unconstitutional.

This month, however, the U.S. Supreme Court upheld the Virginia law. In a 6-3 decision, Justices Rehnquist, Stevens, O'Connor and Breyer maintained that the Virginia law can stand, but the state must reconsider the provision of its law that holds that all cross burning is designed to "intimidate," and make exceptions for cross-burning that is done to make a political or ideological statement, or performed as a symbol of group solidarity. The decision means that laws that ban cross-burning, now in effect in 12 states, are constitutionally legal.

The three dissenting Justices were Souter, Kennedy and Ginsburg, who wrote that cross-burning bans are constitutionally suspect. It is unconstitutional, they claimed, to single out cross-burning because of its association with hate. And, further, the entire Virginia law is unconstitutional because of its content-based restriction on a specific form of free speech.

Needless to say, the court decision is generating public responses. A New York Times editorial (4/8/03) claims that the Justices struck the "right balance" in upholding the ban, while warning states not to trample on political speech. John Whitehead of the Rutherford Institute, a public interest law firm that filed a brief opposing the Virginia law, also called the decision "balanced."

Adam Summers, writing on the Ludwig von Mises Institute website, is not so sure that the Justices got it right, and looks at the decision from another direction. He believes that the judges failed to make the distinction between public and private property. Instead of the Court focusing on protecting property rights, it chose to devise "a suitable model for determining an alleged perpetrator's intent." Claims Summers, "So long as property rights are protected . . . there is no need to try to discern or prove one's intent," and writes:

The first case [Elliot/O'Mara] clearly involves a crime, as the two men trespassed on their neighbor's property--thus causing a threat to him and his family--and defaced his property. Their intent is irrelevant, except to the extent that the property owner's perception of their intentions will guide his actions in response. If he thinks they are just causing a disturbance, for example, he may yell at them to get off his lawn and/or go call the police. If he thinks they intend to put his life or the lives of his family in jeopardy, he may call the cops and then come out on the front porch with a shotgun.

The behavior of the Klansmen in the second case, however, should not be considered a criminal act. While their rally may have been detestable, and they may have said some really nasty, racist things, they did not infringe upon the rights (property or otherwise) of anyone else. . . .

Writes [Justice] Thomas, "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." But this completely misses the point. One cannot burn down another's house because it is a crime to destroy someone else's property and it is a crime to attempt to deprive someone of his life because we each own our bodies and our right to protect them from harm.

Thomas and the other majority members--Chief Justice Rehnquist and Justices O'Connor, Stevens, Scalia, and Breyer--simply fail to understand that the First Amendment, and the other amendments that make up the Bill of Rights, is rooted in the protection of property. The Founding Fathers understood this.

As neat and "balanced" as the decision upholding the cross-burning ban might appear, will defendants necessarily be treated fairly? Excepting the sentences handed down in the Virginia cases, where defendants spent as little as 90 days in jail, there's no reason to assume that fairness will prevail in other states and in future cases. The burden is on prosecutors to make the distinction between a cross-burning that is meant to "intimidate" and one that is the symbolic expression of an idea. This is not good news for future defendants, considering the heavy-handed, punitive tendency of prosecution in these times (see I&V, 4/22/02). In looking at past cases, it's not far-fetched to presume that the typical prosecutor will press to prove such acts to be messages of intimidation, no matter the defendant's real intent.

It's hard not to take note of the harsh sentences that generally are meted out to cross-burners, even though there is no physical injury done and little or no property damage. This month, in Lafayette, Louisiana, six people convicted of cross-burning, were sentenced to jail. Although they all pleaded guilty to "conspiring to violate civil rights," and assorted other charges, one was given a 13-year sentence in federal prison. Falling in with the fashion of the times to engage in exaggerated labeling of almost all hostile acts as "terrorism," U.S. District Judge Tucker Melancon called the defendants "domestic terrorists." Obviously given to trite theatrics, the judge forced the defendants and court to listen to his reading of a song from the musical "South Pacific," i.e., "You've Got To Be Taught." He did not sing it, but took the opportunity to deliver a grandstand speech about the evils of racism.

In 2000, Matthew Marshall, 19, along with four friends, burned a cross on the front lawn of a black couple's home in Katy, Texas. He was sentenced to 10 years in prison, a term he is now serving. The other men, all in their early 20s, were sentenced to lesser terms. This year, the couple, Dwayne and Maria Ross, filed a civil lawsuit seeking millions of dollars in damages from the defendants. (The real physical damage was a scorched fence.) In February, a Texas jury awarded $24 million to the Rosses "to send a strong message," in the words of Shirlene Williams, the jury forewoman. The parents of Marshall had already reached a settlement of $490,000, so the Rosses (along with a band of happy lawyers, no doubt) are going after the parents of the other defendants. Even if these families are able to come up with insurance coverage for part of the amount demanded, they can expect to be financially encumbered for the rest of their lives.

In 2001, in Maryland, Brian Swetnam was sentenced to serve 10 years in prison for burning a cross on his high school campus when he was 19. And he has no chance of parole.

By the way, 60 or 90 days incarceration for tasteless mischief or being a public nuisance is just about right. But there's no reason to expect such a temperate stance from prosecutors.

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