First Amendment Library:
Rodney Smolla


This case arises out of two separate cross-burning incidents. In May 1998, two men Richard J. Elliott and Jonathan OMara burned a cross in the yard of James Jubilee, an African-American neighbor of Elliott. In August 1998, Barry Elton Black leads a Ku Klux Klan rally on private property with the consent of the owner. Black burns a cross at the rally, which frightens a neighbor of the property owner. Prosecutors charge all three men with violating Virginias 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. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. All three men lose their criminal cases before the trial court. A jury convicts Elliott and Black in separate proceedings. OMara enters a conditional plea of guilty. This means he pleas guilty to the offense but reserves the right to challenge the constitutionality of the cross-burning law. The court of appeals affirms the convictions of the three men in two separate cases. The appeals court reasons that the statute only proscribes true threats, a category of expression not protected by the First Amendment. The appeals court also determines 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 consolidates, or combines, the two cases. In a 4-3 decision, the state supreme court reverses, finding the statute violates the First Amendment. The majority reasons that the statute regulates speech based on hostility to the underlying message of cross burning.