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Supreme Court Upholds States’ Rights To Ban Cross-Burnings

By Edward Walsh
THE WASHINGTON POST -- WASHINGTON

The Supreme Court ruled Monday that states can ban cross-burnings that are intended to intimidate onlookers and that such laws do not violate the First Amendment because of the long history of cross-burning as a “particularly virulent form of intimidation.”

Though the court did not entirely validate Virginia’s 50-year-old cross-burning law, it voted 6-3 to overturn a 2001 Virginia Supreme Court ruling that the law was an unconstitutional infringement of free speech.

“Virginia may choose to regulate this subset of intimidating messages in light of cross-burning’s long and pernicious history as a signal of impending violence,” Justice Sandra Day O’Connor wrote in the majority opinion upholding the basic validity of the law.

However, in affirming that Virginia could ban cross-burnings without violating free-speech rights, the court struck down the state’s cross-burning law on other grounds: Within the majority, a four-justice plurality rejected a provision added to the law in 1968 that instructs juries to consider the act of burning a cross in public to be evidence of an intention to intimidate.

O’Connor wrote that this so-called prima facie evidence provision makes the law unconstitutional because it “makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case.

“The provision permits the Commonwealth to arrest, prosecute and convict a person based solely on the fact of cross burning itself,” O’Connor said.

O’Connor’s opinion left open the possibility that the Virginia law could be salvaged if the state supreme court reinterprets what the prima facie evidence section requires or that section is severed from the rest of the law.

The widely anticipated ruling produced a number of opinions, including a dissent by two of the court’s liberal justices that attacked Virginia’s ban. Justices David Souter and Ruth Bader Ginsburg, who were joined by Justice Anthony Kennedy, said they would overturn the law because of its unconstitutional “tendency to suppress a message.”

Justice Clarence Thomas wrote a separate opinion. He said the Virginia law was a permissible prohibition of “intimidating conduct,” not expression, and he dissented from the plurality’s ruling that the prima facie evidence section rendered the law unconstitutional.