- The Washington Times - Friday, March 5, 2004

RICHMOND — The Virginia Supreme Court yesterday struck down a provision in the state’s cross-burning ban that says the act alone proves an intent to intimidate.

The court unanimously ruled that the clause is unconstitutionally broad. However, the core provisions of Virginia’s law against cross burning are unaffected by the ruling.

The justices also affirmed the convictions of two white men who burned a cross on the lawn of an interracial couple in Virginia Beach, ruling that the unconstitutional provision was not a factor in that case.

The U.S. Supreme Court in April upheld the constitutionality of Virginia’s 50-year-old cross-burning law but remanded the narrower question on the “prima facie” evidence provision for state review.

“The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation,” state Supreme Court Justice Donald W. Lemons wrote. “But that same act may mean only that the person is engaged in core political speech.”

Justice Lemons wrote that the provision in question “chills constitutionally protected political speech because of the possibility that a state will prosecute — and potentially convict — somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect.”

The court upheld the cross-burning convictions of Richard J. Elliott and Jonathan O’Mara because the jury in Elliott’s trial was told that the prosecution had to prove intent to intimidate.

O’Mara pleaded guilty but reserved the right to challenge the constitutionality of the law.

Virginia Attorney General Jerry W. Kilgore, who defended the cross-burning statute after the state Supreme Court struck it down in 2002, said he was pleased that the convictions were affirmed.

“Virginia has clearly declared that if you burn a cross with the intent to intimidate someone, we will prosecute you,” he said.

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