RICHMOND, Va. — The Virginia Supreme Court has struck down a provision in the state's cross-burning ban that says the act alone proves an intent to intimidate.
The court unanimously ruled on March 5 that the clause is unconstitutionally overbroad. However, the core provisions of Virginia's law against cross-burning are unaffected by the ruling in Elliott v. Virginia and O'Mara v. Virginia.
The justices also affirmed the convictions of two white men who burned a cross on the lawn of an interracial couple in Virginia Beach, ruling that the unconstitutional provision was not a factor in that case.
The U.S. Supreme Court last April in Virginia v. Black upheld the constitutionality of Virginia's 50-year-old cross-burning law but remanded the narrower question on the "prima facie" intimidation provision for state review.
"The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation," Justice Donald W. Lemons wrote in the March 5 ruling. "But that same act may mean only that the person is engaged in core political speech."
Lemons wrote that the provision in question "chills constitutionally protected political speech because of the possibility that a state will prosecute — and potentially convict — somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect."
The Virginia court upheld the cross-burning convictions of Richard J. Elliott and Jonathan O'Mara because the jury in Elliott's trial was told that the prosecution had to prove intent to intimidate. O'Mara pleaded guilty but reserved the right to challenge the constitutionality of the law.
Virginia Attorney General Jerry W. Kilgore, who defended the cross-burning statute after the state high court struck it down in 2002, said he was pleased that the convictions were affirmed.
"Virginia has clearly declared that if you burn a cross with the intent to intimidate someone, we will prosecute you," Kilgore said.
He said the General Assembly could amend the cross-burning law to eliminate the stricken provision, but such action is not legally necessary.
Elliott's attorney, James O. Broccoletti, was out of his office and not immediately available for comment.
The appeal to the U.S. Supreme Court consolidated the Elliott and O'Mara cases with that of Barry Black of Johnstown, Pa., who was convicted of burning a 30-foot cross during a Ku Klux Klan rally in rural southern Virginia in 1998. Black's trial drew national attention when the American Civil Liberties Union hired a black lawyer, David P. Baugh, to defend him.
"Our principle motivation in taking the cross-burning case to the Supreme Court was to get removed from the statute the assumption that all cross burning is done with intent to intimidate," said Kent Willis, executive director of the ACLU in Virginia.
"This puts the cross-burning law where it should be — that is, if someone is going to be prosecuted for cross burning there must be evidence there was intent to intimidate someone based on their race or religion."
The jury in Black's case was told that cross-burning alone is evidence of an intent to intimidate. His case was dismissed by the U.S. Supreme Court and was not part of the case decided by the Virginia high court last week.