"The Virginia Court of Appeals has upheld a judgment against a Ku Klux Klan leader convicted of burning a cross in Carroll County last year with the intent to intimidate others. The Klan leader argued that burning the cross was a form of ceremonial speech protected by the First Amendment.

Barry Elton Black of Johnstown, Pa., was convicted in June 1999 of violating the state's cross-burning statute when he led a Klan ceremony near Cana, which ended in a wooden cross being set on fire.

The case drew national attention when the American Civil Liberties Union hired a black lawyer, David P. Baugh of Richmond, to defend Black.

Baugh argued that Virginia's ban on cross burning violated the constitutional right to free speech, no matter how repugnant that speech might be to many people.

The Klan rally took place Aug. 22, 1998, near Cana. The owner of the property had given her permission for the Klan group to use it.

In a one-sentence order, the panel said an opinion issued by another panel in October in a case from Chesapeake established the law on the point. In both cases, the defendants raised the First Amendment as a shield to their criminal convictions.

In the Chesapeake case, two men set a cross ablaze in the yard of one of the men's neighbor. The men were part of a group of people who bad been drinking when the conversation turned to complaints about the neighbor of Richard J. Elliott and Elliott's desire to get back at the neighbor. The group built a crude cross, which Elliott and another man ignited on the neighbor's property.

The two men were convicted of attempted cross burning but challenged the constitutionality of the statute on appeal. The appeals panel said the law 'is expressly limited to a person or person burning a cross with specific intent to intimidate another, a threat and fighting words unworthy of First Amendment guarantees.'

Black, on the other hand, burned a cross in Carroll County on private property with the permission of the owner as part of a Klan celebration, The evidence suggested that Black did not set fire to the 25-foot cross himself, but was in charge of the rally.

Some 25 to 30 people, mostly from outside of Virginia, attended the Klan rally. A nearby resident testified that she and her family felt intimidated by the burning and by racist speeches made at the rally.

'We are pleased with the decision of the Virginia Court of Appeals in upholding the commonwealth's anti-cross-burning law,' Randy Davis, spokesman for Virginia Attorney General Mark Earley, said Friday. 'The First Amendment was never intended to be used as a vehicle for threatening and intimidating citizens.'

The law has been on the books since 1968. It prohibits the burning of a cross, or causing one to be burned, with the intent to intimidate any person or group,

A jury took less than 30 minutes to return with a conviction, and imposed the maximum $2,500 fine but no prison sentence. Black could have been sentenced to a maximum of five years.

Baugh said he was disappointed that the panel in Black's case did not attempt to address the factual differences in the two cases. But he said he believes the law is unconstitutional as written, so the facts of a particular case do not affect his basic argument.

Baugh predicted the issue will wind up in the U.S. Supreme Court. He said Black already has authorized an appeal to the Virginia Supreme Court.

Rodney Smolla, a University of Richmond law professor and First Amendment expert, is representing Black on appeal" (The Daily Progress, December 31, 2000).