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On The Front Lines

Rutherford Institute Attorneys File Brief in Critical Free Speech Case with U.S. Supreme Court

Washington, D.C.--Attorneys for The Rutherford Institute have filed a "friend of the court" brief in an important U.S. Supreme Court case involving the free speech rights of three Virginia residents. Barry Elton Black, Richard J. Elliott and Jonathan O'Mara were convicted separately under a 50-year-old statute that outlaws the burning of crosses for the purpose of intimidation. Under Virginia law, cross burning on the private property of another, a highway or other public place with the intent to intimidate a person or group is a felony punishable by fines and/or imprisonment. Last year, the Virginia Supreme Court declared the statute unconstitutional. As the court noted, while laws of neutral application can be enforced, the "government may not regulate speech based on hostility--or favoritism" toward the views expressed by the speaker. The Rutherford Institute's brief challenges the law's provision that cross burning in and of itself gives rise to a presumption of unlawful intent to intimidate, without affording the suspected perpetrator the right to trial by jury and due process.

"The struggle over the First Amendment is crystallized in this debate: whether individuals such as Black have a right to express their opinions, even when those opinions are hateful, unpopular and steeped in the bigotry of racism," stated John W. Whitehead, president of The Rutherford Institute. "After all, the key to our democracy is the right to protest--even if it means burning a cross at a KKK rally. The right to freely express our views has long been a cherished part of our democratic society. The Constitution does not discriminate on the basis of the views expressed by individuals, and neither should our laws or the courts. Simply put, we don't have to approve of what these people say, but we should be willing to protect their right to say it."

The 1952 Virginia statute, similar to laws passed by other states, was enacted to discourage cross burnings by Klansmen, acts often associated with violence and hatred against African Americans, particularly during the civil rights era. However, as The Rutherford Institute argues in its brief, there are presently alternatives to punishing racist behavior that do not target the speech itself, which are already enacted in other Virginia statutes. For example, Virginia outlaws malicious burning on the property of another person--the very act committed by Elliot and O'Mara in burning a small cross on the lawn of an African-American neighbor.

"The right to freely express vile ideas, and the immediate harsh reaction they should generate from a healthy body politic, are tonic to a free society," said Whitehead. "An unspoken idea goes unchallenged, and its adherents may be emboldened by the false belief that their views are widely accepted, or would be embraced if allowed to be broadcast uncensored. It is only the scorching heat of public debate that withers a despicable idea."

The Rutherford Institute is an international, nonprofit civil liberties organization committed to defending constitutional and human rights.

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