Cross-Burning Convictions Overturned

[Volokh, Eugene]

        I too am surprised that in the O'Mara and Elliott cases, the
defendants weren't also prosecuted for other crimes (or so the Va. Sup. Ct.
case and the Va. Ct. App. cases seem to suggest).  The Va. Sup. Ct. case is
at http://www.courts.state.va.us/txtops/1010123.txt .

        But in the Black case, the cross was burned at a political rally --
it's not clear that this action would have violated any other law.  (We
could imagine this being punishable by some general law barring the burning
of all large objects in public, but I don't know of any such law in
Virginia.)

        Eugene

> -----Original Message-----
> From: David M Wagner [SMTP:daviwag at REGENT.EDU]
> Sent: Friday, November 02, 2001 3:28 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Cross-Burning Convictions Overturned
>
> Picking up on Jim's suggestion that the common law of crimes is equal to
> the
> occasion and should have been used here, it seems to me Employment Div. v.
> Smith provides any First Amendment analysis that may be necessary,
> analogizing from free exercise to free speech (easy enough; see Scalia's
> Barnes Theater concurrence).  States have laws against trespass, arson,
> and
> attempted arson.  Does the addition of a communicative motivation for
> those
> crimes force the state to show a compelling state interest before it can
> enforce such laws? No. Easy case.
>
> David M. Wagner
> Regent University School of Law
> 1000 Regent University Drive
> Virginia Beach, VA  23494
> 757-226-4697
>
>
> > -----Original Message-----
> > From: Discussion list for con law professors
> > [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of James Maule
> > Sent: Friday, November 02, 2001 6:09 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Cross-Burning Convictions Overturned
> >
> >
> > News from another list. I do not have a URL for the actual news release.
> >
> > My query: Is this another case of prosecutors missing the easy
> > path? How can free speech permit trespass onto another person's
> > property, and fire ignition that can put the person's home at risk?
> >
> >    The AP reports a 4-3 Virginia Supreme Court decision striking down
> >    a state law against cross-burning. It called cross-burnings acts of
> >    bigotry that are a protected form of speech.
> >
> >    Convictions of three people in two cases were reversed. In
> > one, a cross was
> >    burned at a Ku Klux Klan rally, and in the other there was an
> > attempt to burn
> >    a cross in an African-American's back yard.
> >
> >    From the opinion: "Under our system of government, people have
> > the right to use symbols
> >    to communicate. They patriotically wave the flag or burn it in
> >    protest; they may reverently worship the cross or burn it as an
> >    expression of bigotry."
> >
> >    "While reasonable prohibitions upon time, place and manner of speech,
> >    and statutes of neutral application, may be enforced, government may
> >    not regulate speech based on hostility - or favoritism - towards the
> >    underlying message expressed."
> >
> >    From the dissent: "for almost 50 years [the law] has protected
> > our citizens from being placed in fear of bodily
> >    harm by the burning of a cross."
> >
> >
> >
> > Jim Maule
> > Professor of Law, Villanova University School of Law
> > Villanova PA 19085
> > maule at law.villanova.edu
> > http://vls.law.vill.edu/prof/maule
> > President, TaxJEM Inc (computer assisted tax law instruction)
> > (www.taxjem.com)
> > Publisher, JEMBook Publishing Co. (www.jembook.com)
> > Maule Family Archivist & Genealogist (www.maulefamily.com)
> >
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