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Should cross-burning be banned? Virginia Attorney General Jerry Kilgore thinks so. This fall, he will argue before the U. S. Supreme Court that burning a cross to intimidate someone is "nothing short of domestic terrorism." His opponents, on the other hand, will claim that cross burning is a symbolic form of speech protected by the First Amendment.

The fate of Virginia's 50-year-old ban — and similar bans in 12 other states and the District of Columbia — will depend on where the U.S. Supreme Court draws the line.

Kilgore is fighting the Virginia Supreme Court's decision to invalidate the state's ban and throw out the convictions of three cross burners — Berry Elton Black, Richard Elliott and Jonathan O'Mara.

The Virginia court's conclusion rests on the principle that in America, "people have the right to use symbols to communicate. They may patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry." Black v. Commonwealth, 553 S.E.2d 738, 778-79 (Va. 2001).

But for James Jubilee, cross-burning is more a threat than a symbol. After a minor dispute with his next-door neighbor, Richard Elliott, Jubilee woke up one morning to find a partly burned cross on his lawn.

Evidently, Elliott and a group of his friends, including Jonathan O'Mara, had a few drinks the night before and decided to burn the cross to "get back at" Jubilee, who is black. They managed to make their own cross, but, whether due to intoxication or inexperience, they were less successful in lighting it.

Elliott and O'Mara are not Ku Klux Klan members. But when Jubilee saw the cross on his lawn, visions of the Klan no doubt sprang to mind. Like white hooded masks, cross-burning — originally a means of signaling used by 14th century Scottish clans — is now virtually synonymous with the Klan.

Though the Klan that arose during post-Civil War Reconstruction never engaged in the practice, Thomas Dixon's 1905 novel, The Clansman, romanticized the Klan's supposed Scottish ancestry and depicted a fictional Klan cross-burning.

The image reappeared in D.W. Griffiths' film, Birth of a Nation, based on Dixon's book. Inspired by these fictional portrayals, William J. Simmons began the Klan's 20th century revival by lighting a match to a pineboard cross on a Georgia mountaintop on Thanksgiving Eve, 1915.

Is Cross-Burning Always a Threat?
These days, a cross is burned about every week in the United States. Such an act — historically tied to lynchings, beatings, rapes and other Klan atrocities — is bound to raise fears of violence.

The use of the cross as "a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan" is common knowledge. Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753, 770-71 (1995) (Thomas, J., concurring).

The association between cross-burning and hate crimes has prompted nine states — Arizona, California, Georgia, Kansas, Massachusetts, Missouri, Oklahoma, Utah and Washington — to file a joint brief in support of Virginia's ban with the U.S. Supreme Court.

But not all cross-burnings threaten an individual or result in a violent outbreak. For example, when Barry Elton Black led a Klan rally one evening on private property in rural Virginia, hate-filled speeches targeting blacks, Mexicans and President Clinton were accompanied — with the landowner's permission — by a 25-foot high burning cross, visible from a nearby highway.

Despite no indication that Black — or anyone else at the rally — had any violent plans, the county sheriff arrested Black at the scene under the anti-cross-burning law.

Black's attorneys — including First Amendment expert and University of Richmond law professor Rodney Smolla, as well as the Virginia ACLU — argue that his conviction highlights a major problem with the Virginia law.

The law allows a court to presume that cross-burning is a threat, no matter where or how it occurs. Black's attorneys also claim that the Virginia law is no different than a Minnesota city ordinance struck down by the U.S. Supreme Court in 1992.

That ordinance violated the First Amendment because it singled out cross-burning and other bias-motivated expressions for special punishment because of their message. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).

Content Neutrality is Key
But the Virginia attorney general argues that it makes no sense to force states to ban burning circles and squares along with burning crosses, just to appear neutral. He claims that the Virginia ban is already neutral because it forbids burning a cross to intimidate anyone for any reason — unlike the Minnesota ordinance, which only outlawed intimidation based on race, color, creed, religion or gender.

Neither side disputes that a cross burner may be prosecuted for trespass, vandalism or any other crime committed in the course of burning a cross. The question before the Supreme Court now is whether a state can target cross-burning as a unique criminal act.

The question is difficult because the very reason that cross-burning is a uniquely powerful threat — its symbolic meaning, rooted in its historical associations — may afford it constitutional protection.

The Court will have to determine whether a state can prohibit cross-burning while preserving the "bedrock principle underlying the First Amendment" — that the government can't outlaw a message simply because most Americans find it reprehensible. See Texas v. Johnson, 491 U.S. 397, 414 (1989) (flag burning constitutionally protected).