Is cross burning a form of free speech?

Few symbols carry such a clear and terrifying message as the sight of a burning cross on someone's front lawn.

For most of the past century, the Ku Klux Klan, in particular, has used the flaming cross both as a symbol of white supremacy and as a terror tactic aimed primarily at African-Americans.

Aware of this legacy, lawmakers in Virginia made it illegal to burn a cross with the intent of intimidating someone.

But now the statute is being challenged by free-speech advocates, who say that a burning cross can be a form of communication protected by the First Amendment.

In a potential landmark free-speech case, the US Supreme Court Wednesday begins examining the constitutionality of Virginia's cross-burning statute. It is a case that will seek to balance a state's power to protect its citizens from the hateful actions of others while remaining faithful to the free-speech mandate of the US Constitution.

First Amendment advocates see in Virginia's law the thin edge of a wedge that could authorize broader government censorship. "If the government is permitted to select one symbol for banishment from public discourse there are few limiting principles to prevent it from selecting others," says Rodney Smolla, a law professor at the University of Richmond, in his brief to the court. "It is but a short step from the banning of offending symbols such as burning crosses or burning flags to the banning of offending words."

Virginia officials say the law is aimed at prosecuting intimidation, not muzzling communication. "Our ban on cross burning does not infringe anyone's right to free speech because people do not have a right to threaten others," says Tim Murtaugh of the Virginia Attorney General's Office, which is defending the law before the high court. The only message conveyed by a burning cross is one of fear, Mr. Murtaugh says. "If you come out of your house and see a burning square or a burning circle, you will call the fire department," he says. "If you come out and see a burning cross, you will call the police."

In agreeing to decide the issue, the high court is reviewing the outcome of two cases from Virginia, both prosecuted in 1998.

The first involves two white men, Richard Elliott and Jonathan O'Mara, who attempted to burn a makeshift cross on the lawn of their black neighbor in Virginia Beach. They were angry that the neighbor had earlier complained about their firing weapons in a backyard rifle range.

The neighbor, James Jubilee, discovered the partially burned cross in his yard the next morning and called police. Later, he and his family moved to a different town.

Mr. O'Mara pleaded guilty to attempted cross burning and was sentenced to 45 days in jail and fined $1,500. Mr. Elliot was convicted at trial and sentenced to 90 days in jail and fined $2,500.

The second case involves Barry Elton Black, a Ku Klux Klan member, who conducted a cross burning during a KKK rally on private land in Carroll County. The cross was at least 25 feet tall and could be seen from neighboring homes and a nearby highway. Mr. Black admitted he was responsible for burning the cross and was convicted at trial. He was fined $2,500.

All three men appealed their convictions. The Virginia Supreme Court consolidated their cases and, by a 4-to-3 vote, struck down the cross-burning law as a violation of the First Amendment. The court ruled that the law violated free-speech protections by singling out one form of intimidation. "Under our system of government, people have the right to use symbols to communicate," the Virginia Supreme Court said. "They may patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry."

The Virginia court said that general laws against vandalism, assault, and trespass could be used to prosecute those who seek to terrorize others.

The Virginia Attorney General's Office disagrees with the ruling. "The Virginia statute is content neutral," says Virginia Solicitor General William Hurd in his brief to the court. "It is not limited to disfavored subjects or particular victims. Rather, it applies to anyone who burns a cross with the intent to intimidate anyone for any reason."

Mr. Hurd says in his brief that not all speech is protected by the First Amendment. So-called "fighting words" that are an immediate incitement to violence and intimidation fall outside the free-speech mandate, he says.

"Cross burning is an especially virulent form of intimidation," he writes. "Since it is constitutionally permissible to ban all forms of intimidation, it is constitutional to ban its most virulent forms."

US Solicitor General Theodore Olson agrees. "Cross burning, because of its historical association with vigilantism and violence, has a unique potential for instilling fear in its victims, disrupting the life of the community, and precipitating other unlawful conduct," he says in his brief to the court.

J. Joshua Wheeler of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va., says the particular symbol at issue is irrelevant. "What this case is about is giving the government the authority to choose for its citizens what symbols we can adopt to express our political viewpoint," he says.

"Symbols mean different things to different people, and the question we have to ask ourselves is, Do we really want the government in the business of deciding for us what symbols mean to us?"