WASHINGTON (AP) – The Supreme Court upheld a state ban on cross burning, ruling Monday the history of racial intimidation attached to it outweighs the free speech protection of Ku Klux Klansmen or others who might use it.

A burning cross is a particularly powerful instrument of terror, and government should have the power to stamp out or punish its use as a weapon of intimidation, Justice Sandra Day O’Connor wrote.

‘Not absolute’

The protections afforded by the First Amendment “are not absolute,” she wrote.

The court voted 6-3 to uphold the ban, but split 5-4 on the narrower question of whether the law violates the constitutional guarantee of free speech. Justice Clarence Thomas agreed with the broad premise that states may bar cross burning, but did not agree with the court’s holding that the law was constitutional on free speech grounds.

Thomas, the court’s only black member, said the court didn’t even have to consider the First Amendment implications because a state has a right to bar conduct it considers “particularly vicious.”

“Just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point,” he wrote.

At issue was a 50-year-old Virginia law that makes it a crime to burn a cross as an act of intimidation.

A lower court ruled the law muzzled free speech. “While a burning cross does not inevitably convey a message of intimidation, often the cross burning intends that the recipients of the message fear for their lives,” O’Connor wrote. “And when a cross burning is used to intimidate, few if any messages are more powerful.”

O’Connor was joined by Chief Justice William H. Rehnquist and Justices John Paul Stevens, Antonin Scalia and Stephen Breyer.

Justices Anthony M. Kennedy, David Souter and Ruth Bader Ginsburg dissented on free-speech grounds.

“The symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten,” Souter noted.

The Virginia law does not draw enough of a distinction, especially since it explicitly calls cross-burning “prima facia evidence” of an intent to intimidate, Souter wrote for the three.

That provision “has a very obvious significance as a mechanism for bringing within the state’s prohibition some expression that is doubtfully threatening though certainly distasteful.”

“This is a victory for race relations in America,” said Kent Scheidegger, legal director for the Criminal Justice Legal Foundation.

The Supreme Court historically has been protective of First Amendment rights of unsavory or unpopular groups and causes, including the Klan, flag-burners, pornographers and strippers.

More than a decade ago, the court struck down a local law in St. Paul, Minn., that prohibited placing symbols including a burning cross or a swastika on someone else’s property out of racial, religious or other bias.

The cross-burning case in Virginia evoked a mostly bygone era in the South, when “nightriders” set crosses ablaze as a symbol of intimidation to blacks and civil rights sympathizers. Virginia and other states tried to outlaw the practice, but the laws have run into trouble on free-speech grounds.

“I respect the First Amendment protection of speech, but burning a cross is never about free speech,” Virginia Gov. Mark R. Warner said after the court issued its ruling. “Historically in Virginia, these provocative acts are clearly intended to menace and intimidate African-Americans,” he said.

During oral arguments in the case in December, Thomas recalled what he called a centurylong “reign of terror” by the Klan and other white supremacy groups, and called the flaming cross “unlike any symbol in our society.”

“The cross was a symbol of that reign of terror,” Thomas said in apparent exasperation that a government lawyer was providing only tepid, legalistic justification for the Virginia law.

“My fear is … that you’re actually underestimating the symbolism of, and the effect of, the cross, the burning cross,” Thomas said.

The moment was electric, in part because Thomas almost never speaks during the court’s oral arguments, and because of his race.

The case began five years ago, with two separate prosecutions.

In one case, two white men in Virginia Beach, Va., ended a night of partying by trying to burn a 4-foot cross in the yard of a black neighbor, James Jubilee. Jubilee later moved his family out of the neighborhood because of concern for their safety.

In the other case, a Pennsylvania man was convicted of burning a 30-foot cross on private land in rural southern Virginia during a 1998 Klan rally.

Lawyers for Virginia told the court the Klan rally was held after whites became angry about mixed-race couples.

In addition to Virginia, anti-cross burning laws are on the books in California, Connecticut, Delaware, Florida, Georgia, Idaho, Montana, North Carolina, South Carolina, South Dakota, Vermont, Virginia, Washington state and the District of Columbia.

The case is Virginia v. Black, 01-1107.

AP-ES-04-07-03 1440EDT

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