In a 4-3 decision, the court overturned the law and reversed the convictions of three men, including a grand wizard of the Ku Klux Klan, who was arrested in 1998 after a cross was burned on private property during a small Klan rally. The court said that, even though state lawmakers had "laudable intentions" of combating bigotry and racism in passing the law, the statute was unconstitutional "because it prohibits otherwise permitted speech solely on the basis of its content and the statute is overbroad."
"Government may not regulate speech based on hostility--or favoritism--towards the underlying message expressed," Justice Donald Lemons wrote in the court's majority opinion. Virginia's cross-burning statute made it a felony to burn a cross in a public place or on another person's property with the intent of intimidating any group or individual. The law carried a penalty of a fine and up to five years in prison.
The court said Virginia's law was similar to a Minnesota law overturned by the U.S. Supreme Court in 1992. In that case, the U.S. Supreme Court said Minnesota's ordinance was "facially unconstitutional in that it prohibit(ed) otherwise permitted speech solely on the basis of the subjects the speech addresses."
The Virginia Supreme Court overturned the convictions of Jonathan O'Mara and Richard Elliott, who were 19 years old and had been drinking at a party when they tried to set a cross on fire in a black neighbor's yard. It also reversed the conviction of Barry Elton Black, a Klan Grand Wizard from Johnstown, Pa., who was arrested after a Klan meeting where a 30-foot-tall cross was burned.
In a dissenting opinion, three justices said "the framers of the First Amendment never contemplated that a court would construe that Amendment so that it would permit a person to burn a cross in a manner that intentionally places citizens in fear of bodily harm."
"The majority opinion invalidates a statute that for almost 50 years has protected our citizens from being placed in fear of bodily harm by the burning of a cross," wrote Justice Leroy Hassell Sr., the only black member of Virginia's Supreme Court.
The Virginia Court of Appeals upheld the statute last year, saying that it "targets only expressive conduct undertaken with the intent to intimidate another, conduct clearly proscribable both as fighting words and a threat of violence."