- The Washington Times - Wednesday, May 29, 2002

The Supreme Court yesterday agreed to decide whether Ku Klux Klansmen have a free-speech right to burn a cross that intimidates or frightens people who feel targeted in the absence of direct threats.
Virginia appealed a lower-court ruling that threw out a $2,500 fine against Pennsylvania KKK member Barry E. Black, who was defended by American Civil Liberties Union lawyer David P. Baugh, a black man who opposes criminalizing hate speech.
"People cannot be protected from actions or words that make them uncomfortable, by people who engage in what is called hate speech," Mr. Baugh said yesterday.
The Richmond-based criminal lawyer said he took the case as a volunteer "ACLU cooperating attorney" after white lawyers rejected the case fearing assumptions that they sympathized with the client.
Does Mr. Baugh have other misgivings or sympathize with clients who hate black people?
"No, not really. I don't have that problem. No one's ever accused me of being a closet Klansman. I'm an African-American, so I don't have to announce my personal feelings on this issue, but I'm here to protect his right to express his viewpoint," Mr. Baugh said.
"We as citizens don't have a constitutional right to be free from fear or intimidation. People have the right to dislike us, and if that dislike causes us discomfort that doesn't make it illegal," he said. "If there is a threat of imminent violence, however someone making an intimidating statement to you coupled with the ability to carry it out that would be illegal."
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which is filing a court brief supporting the Virginia law that bans cross burning, said the symbol is a threat.
"In the context of American race relations, burning a cross in a black family's yard is a threat," said Mr. Scheidegger, of Sacramento, Calif. He said it matters little whether Virginia's law "may inhibit the expression of bigots more than it does the expression of believers in racial equality."
Justice Clarence Thomas debated that issue in 1995 with an ACLU lawyer representing Ohio Klansmen during arguments on whether the KKK could erect an ordinary Christian cross in a holiday exhibit outside the state Capitol.
"What does a burning cross symbolize?" Justice Thomas asked lawyer Benson A. Wolman.
"A burning cross, I believe, would symbolize the general orientation of the Ku Klux Klan against racial minorities not just you ethnic minorities, myself and others, a whole variety of purposes," said Mr. Wolman, who said his client also targeted him, because he is a Jew.
"As I understand the record, there were some concerns that some citizens of Columbus, when they saw that, could actually see fire on that cross," said Justice Thomas, who is black.
"Could see fire, you mean figuratively?" Mr. Wolman asked.
"That's right," Justice Thomas replied.
"Perhaps some could," the lawyer said.
Law professor Rodney A. Smolla of Richmond's T.C. Williams School of Law will argue the case when the court considers next term whether Virginia's law violates KKK members' First Amendment right to speech.
Similar laws in Maryland, New Jersey and South Carolina also have been struck down, but courts in Florida, Washington state and California have left similar laws in force.
Virginia is asking the high court to clarify its 1992 decision that struck down a hate-crime ordinance from St. Paul, Minn., banning displays of swastikas or burning crosses intended to anger or alarm people "on the basis of race, color, creed, religion or gender."
Virginia's law does not mention race but does specify cross burning, a traditional component of KKK rallies. Burning a 30-foot cross in a rented Southwest Virginia farm field led to Mr. Black's arrest.
A state court threw out the convictions, saying, "Under our system of government, people have the right to use symbols to communicate."
Virginia says its law deals with the threatening or violent nature of cross burning, not the motive of the Klansman or the race of the target.
Among other actions yesterday, the court:
Agreed to decide whether states may control federal benefits for orphaned or abused children, in a case from Washington state, which collected Social Security payments intended for the children and used the money for routine expenses such as food and clothing. The grandmother of a child in the case wanted money saved for college.
Accepted for review a Justice Department appeal of a drug ruling that makes it more difficult to prosecute conspiracy charges. The question is whether a person can be convicted of conspiracy for joining a criminal plot that has been thwarted and is being maintained as a sting to catch other participants. This occurred when Francisco Recio and Adrian Lopez-Meza were arrested in 1997 after driving off from a Nampa, Idaho, shopping mall with $12 million worth of cocaine and marijuana provided by authorities who had seized it earlier.

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