- The Washington Times - Monday, November 19, 2001

NORFOLK (AP) The Virginia Supreme Court's recent ruling that cross burning is symbolic speech protected by the First Amendment was not surprising, constitutional experts say.
"It was a reasonable decision, maybe even a predictable one," said Michael Gerhardt, professor of law at the College of William and Mary.
That's because the court's 4-3 ruling of Nov. 2 is supported by a U.S. Supreme Court decision that struck down a similar law in Minnesota nine years ago, Mr. Gerhardt said.
"The question in Virginia was whether the Virginia law was much different," Mr. Gerhardt said. "The Virginia court said that it was not."
Minnesota and Virginia are not the only states where laws prohibiting types of symbolic speech have been overturned.
Mr. Gerhardt said it is likely that the Virginia law was one of the last still on the books that prohibited cross burnings.
Virginia's General Assembly enacted the cross-burning law in 1952 in response to Ku Klux Klan activity. The law was amended several times.
J. Clay Smith Jr., who teaches constitutional law at Howard University in Washington, said the court's ruling was correct even if the speech being protected is filled with hatred.
"I don't like the symbols that the Klan uses," Mr. Smith said. "But the First Amendment is important because it allows people to air pent-up views."
Mr. Gerhardt said that to fight racist speech, "you have to be able to craft a state law that will avoid a problem with the Constitution as interpreted by the U.S. Supreme Court."
The court already has said that won't be easy. A possibly better remedy: enforcing laws already on the books, said Rhonda Brownstein, legal director of the Southern Poverty Law Center in Montgomery, Ala.
"There are other laws that are broken when you go up on somebody's property and light a cross," Miss Brownstein said. "Law enforcement has the tools to crack down on people who do this kind of behavior."
The trouble, experts say, is that many of those laws are misdemeanors that do not carry penalties stiff enough to discourage or punish cross burners. Federal lawmakers could change that by passing laws to provide adequate punishment.
The fight over the Virginia law, however, may not be over.
Attorney General Randolph A. Beales has pledged to appeal the decision to the U.S. Supreme Court, arguing that cross burning is "domestic terrorism."
Some analysts wondered whether the high court will take up the case, since it has already ruled on the issue.
The Virginia case had an unusual side issue because attorney David P. Baugh represented a KKK member who had been convicted for burning a cross in the western part of the state.
"I am more concerned with the First Amendment than I am with the statute," Mr. Baugh said. "If everybody just said nice things, we would not need a First Amendment."
Race never entered into his decision to defend the Klan member, said Mr. Baugh, who is black.
"I like the fact that I can defend this guy, without liking or condoning him," Mr. Baugh said.

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