CANA — A rolling pasture that separates the two Sechrist homes is the setting for a free speech battle now before the nation’s highest court.
On the night of Aug. 22, 1998, during a Ku Klux Klan rally in the pasture, someone set fire to a 30-foot cross.
The display frightened Rebecca Sechrist, who lives in a mobile home at the field’s western edge. “I sat there and I cried,” Sechrist later told a Carroll County jury. “I didn’t know what was going to happen. . . . I was scared my home was going to get burned.”
On the other side of the pasture, and the cross-burning issue, is Sechrist’s husband’s cousin. Joey Sechrist hosted the Klan rally that day. “We weren’t bothering nobody,” Sechrist said. “Wasn’t nobody being killed and hung up on the cross and burned.”
Those competing views – fear vs. free expression – are the crux of a case to be argued Wednesday before the U.S. Supreme Court.
The court is considering the appeals of Barry Black, a Klan leader convicted of setting fire to the cross during the rally on the Sechrist property, and two Virginia Beach men who tried to burn a cross in their black neighbor’s yard.
At issue is whether Virginia’s law, which makes it illegal to burn a cross with the intent to intimidate, violates the accused burner’s First Amendment right to free speech.
Last year, a sharply divided Virginia Supreme Court ruled that despite the state’s good intention of combating racial threats, its law was unconstitutional because it singled out cross burning as a forbidden means of expression.
“Under our system of government, people have a right to use symbols to communicate,” the court ruled in reversing the cross-burning convictions. “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 4-3 decision relied heavily on a ruling 10 years ago by the U.S. Supreme Court, which used the First Amendment to strike down a similar ordinance that made it a crime to burn a cross in St. Paul, Minn.
Now, by agreeing to hear the appeal of Black’s case at the urging of Virginia’s attorney general, the high court has rekindled an incendiary and complicated question: How does government go about punishing a cross-burner’s conduct while protecting the content of his message?
A question of intimidation
As Brushy Fork Road meanders through southern Carroll County, it offers views of Fancy Gap Mountain to the north and the hills of North Carolina to the south.
On a summer night four years ago, it offered another view: That of a flaming cross about 100 yards from the road, surrounded by some 30 people wearing white robes and pointed hats.
Sheriff Warren Manning had never seen such a thing in his county, but he figured it was illegal. Manning, who had been watching the KKK rally from a distance for several hours, radioed his office and had a magistrate flip through the law books to find the right charge.
They settled on Code Section 18.2-423, which reads: “It shall be unlawful for any person or persons, with the intent of intimidating any person or persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place.”
Manning arrested Black on the spot.
Black, who had traveled from his Johnstown, Pa., home to hold the rally, hinted at his motivations during the drive to the county jail. Black told Deputy Rick Clark that blacks and Mexicans had taken all the jobs in the area, and they were even walking hand in hand with white women down the sidewalks.
“I told him there weren’t any sidewalks in Cana,” Clark replied, according to the trial transcript.
Apparently, Black believed he was in nearby North Carolina, which does not have a law against cross burning.
Black did not respond to repeated requests for an interview. Last year, he told the Tribune-Democrat of Johnstown that he was retiring as an imperial wizard of the Klan because he was “tired of being ostracized.”
Once Black was arrested on the felony charge, authorities set out to prove that his cross burning intimidated someone.
They subpoenaed Rebecca Sechrist, who told the jury that before the cross was burned, speakers at the rally “talked real bad about the blacks and the Mexicans. . . . One guy got up and said he would love to take a .30-30 and just randomly shoot the blacks.”
Sechrist, who declined to be interviewed for this story, may not have been the only one intimidated that night. Clark testified that he saw a black family drive by within sight of the burning cross, then speed away.
The jury convicted Black and fined him $2,500.
Although Black did not testify, he said before his trial that he did not intend to frighten anyone. He said burning a cross was the Klan’s way of glorifying Christ.
Joey Sechrist, who said he invited Black to hold the rally on his mother’s land through a mutual acquaintance, agreed recently that the burning was motivated more by religion than racism.
He described the rally as nothing more than an opportunity for like-minded people to come together for an evening of food and fellowship that ended with a cross burning and the playing of “Amazing Grace.”
“It was a Ku Klux Klan family outing; that’s all it was,” Sechrist said.
A First Amendment issue
Virginia is one of 14 states that ban cross burning.
But having a law doesn’t mean it is used very often. Since 1997, the state has charged seven people in connection with five cross burnings, according to the Virginia Sentencing Commission.
Three of those cases are now headed to the U.S. Supreme Court. Black’s appeal has been consolidated with that of two Virginia Beach men. Richard Elliott and Jonathan O’Mara were convicted in 1999 of attempting to burn a cross in the yard of their neighbor, a black man who had recently inquired about gunshots from Elliott’s backyard firing range.
The facts of that case are similar to those in R.A.V. vs. St. Paul, the 1992 landmark case in which the U.S. Supreme Court ruled that the city’s law against cross burning violated the First Amendment.
Ruling in favor of a juvenile who fashioned a cross from broken chair legs and burned it in the yard of a black family, the high court stressed that its concern with the law should not be misconstrued as indifference to the defendant’s acts.
“Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible,” Justice Antonin Scalia wrote for the unanimous court. “But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”
For example, the juvenile could have been charged with arson. When someone is prosecuted for arson, it makes no difference what they burn, or who the victim is. That’s unlike the St. Paul ordinance, which prohibited burning a cross to cause anger or alarm “on the basis of race, color, creed, religion or gender.”
Virginia’s law is different from St. Paul’s, State Solicitor William Hurd wrote in a brief filed with the Supreme Court, because 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.”
Not so, says the lawyer for Black, Elliott and O’Mara.
By making it illegal to burn a cross – but not other objects – Virginia’s law adopts the same content-based discrimination that doomed the St. Paul ordinance, according to Rodney Smolla, a University of Richmond law professor and First Amendment scholar who will argue on behalf of the three cross-burners this week.
The cross-burning law violates the First Amendment, Smolla argues in a 45-page brief, because it allows Virginia to censor speech it finds objectionable – just as Texas did with its law against burning an American flag. The U.S. Supreme Court threw out that law 12 years ago in a decision that sparked national debate.
“The government may no more single out a burning cross for especially disfavorable legal treatment than it may single out a burned or mutilated American flag, or the likeness of Osama bin Laden, or a swastika,” Smolla wrote.
Cross burning and flag burning cannot be equated, the state responded. Someone who sets fire to an American flag is protected by the Constitution because the burning is a form of protesting what the flag represents, Hurd wrote. Cross burning, by comparison, does not symbolize opposition to Christianity.
“Crosses are burned to instill fear,” Hurd wrote. “When a legislature bans cross burning with the intent to intimidate, the only message it targets is intimidation – and intimidation is not protected.”
While the state says cross burning alone is intrinsically intimidating, it also argues that its law banning the practice has nothing to do with the burner’s motivation.
“The commonwealth cannot have it both ways,” Virginia Supreme Court Justice Donald Lemons wrote in last year’s opinion that struck down the law.
A constitutional test
In defending its law, Virginia has a fall-back argument.
Even if the law is content-based, Hurd said in his brief, it would still pass constitutional muster under any one of the three exceptions to First Amendment protection.
According to the state’s interpretation of R.A.V. vs. St. Paul, the exceptions are as follows: speech that is especially virulent; speech that creates secondary effects that go beyond the intended audience (neighborhood crime associated with adult bookstores, for example); and speech that is banned by laws in which “there is no realistic possibility that official suppression of ideas is afoot.”
The first exception, that involving especially virulent speech, is based on a 1942 Supreme Court ruling that the First Amendment does not cover “fighting words,” or language likely to incite violence. Other speech is also unprotected. It is not permissible to yell “fire” in a crowded theater, for example, or to make libelous statements.
Cross burning, which Virginia Attorney General Jerry Kilgore has called “nothing short of domestic terrorism,” fits in the same category, the state argues.
But in deciding the St. Paul case, the Supreme Court ruled that even though the expression covered by the city’s ordinance fell within the “fighting words” category, the law was nonetheless unconstitutional because it targeted a specific form of expression directed at a specific class of victims.
Put another way: The law can prohibit libel, but it cannot prohibit libel against a certain class, such as government officials.
Under that reading of the St. Paul decision, Smolla said, Virginia’s law fails. Likewise, he said, the state is wrong in claiming that the law falls under the other two exceptions.
“Virginia insists that cross burning is shorthand for intimidation,” Smolla’s brief states. “Yet cross burning is not intimidation, any more than flag burning is sedition, or an erotic movie is sex. Cross burning is symbolic expression.”
Tweaking an earlier decision
When the U.S. Supreme Court is convened this Wednesday in its marbled chambers, Edward J. Cleary will be among the spectators.
Eleven years ago, Cleary stood before the court as the attorney for the juvenile – identified only by the initials R.A.V. – who was charged with cross burning in St. Paul. Cleary had never argued a case before the high court but went on to win what is considered a landmark First Amendment victory.
Now a judge in St. Paul, Cleary wonders why the court felt it necessary to revisit the cross-burning issue.
“I have a hard time believing that the core of the court is going to backtrack at all on R.A.V.,” he said. “It could narrow R.A.V. with its decision, but I think it’s unlikely it will take a huge bite out of it.”
Although the court was unanimous in finding fault with the St. Paul law, it differed on how best to strike it down. Five justices decided that even when expression covered by the law fell under the “fighting words” category, the ordinance was fatally flawed because it prohibited speech “solely on the basis of the subjects the speech addresses.”
The remaining justices took issue with the majority’s approach, writing four concurring – yet disagreeing – opinions.
Rather than lumping all speech into the fighting words category, the court should have simply ruled that the ordinance was overly broad because it covered both protected and unprotected speech, the late Justice Byron White wrote.
White predicted that the court’s decision would create confusion that, a decade later, is apparent.
Some states have used R.A.V. to uphold their cross burning laws. Others have cited it to invalidate them.
“There is a major conflict here that this court should resolve,” Hurd wrote earlier this year in asking the U.S. Supreme Court to hear the state’s appeal.
While keeping its law on the books, Virginia’s General Assembly this year passed another law that makes it illegal to burn any object with intent to intimidate. Critics say the new law, passed as a result of R.A.V., is unconstitutional because it is too broad.
“I think the slippery slope is found in the revised Virginia statute, which says you can’t burn anything that might make someone fearful. That covers flags, bonfires, everything,” said David Baugh, a Richmond lawyer who represented Black at trial.
Fifteen states and as many organizations have filed “friend of the court” briefs on both sides.
A decision might not come until the end of the court’s term in June.
By then, the green grass of five passing springs would have long ago erased the charred spot on the Carroll County pasture where the legal odyssey began.