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First Amendment Library:
David P. Baugh


This case arose out of two separate cross-burning incidents. In May 1998, Richard J. Elliott and Jonathan O’Mara burned a cross in the yard of James Jubilee, Elliott’s black neighbor. In August 1998, Barry Elton Black led a Ku Klux Klan rally on private property with the consent of the property’s owner. Black burned a cross at the rally, which frightened a relative of the property owner who watched from a nearby house. Prosecutors charged all three men with violating Virginia’s cross-burning statute, which provides: “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or to cause to be burned, a cross on the property of another, a highway or other public place.” All three men lost their criminal cases before the trial court. The court of appeals affirmed the convictions of the three men in two separate cases. The appeals court reasoned that the statute only proscribes true threats, a category of expression not protected by the First Amendment. The appeals court also determined that the burning of the cross is a form of fighting words, another category of speech not protected by the First Amendment. On appeal, the Virginia Supreme Court consolidated the two cases. In a 4-3 decision, the state supreme court reversed, finding the statute violated the First Amendment. The majority reasoned that the statute regulated speech based on hostility to the underlying message of cross burning.