Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SATURDAY, April 20, 1991                   TAG: 9104200387
SECTION: VIRGINIA                    PAGE: A-4   EDITION: NEW RIVER VALLEY 
SOURCE: Associated Press
DATELINE: FAIRFAX                                LENGTH: Medium

JUDGE OVERTURNS LAW AGAINST CROSS BURNING/ RULING SEEN AS LIMITED TO FAIRFAX

But the county's commonwealth attorney said Friday the ruling affects only the one case unless a higher court should reach a similar finding.

Chief Family Court Judge Jane P. Delbridge dismissed the charge Thursday after the student's attorney argued that Virginia's law is overbroad and abridges freedom of speech. The hearing was closed to the public because of the defendant's age.

Brian M. McCormack, the student's attorney, said Friday he argued that "cross burning, like flag burning, is a form of symbolic speech. The Supreme Court in the First Amendment cases calls it expressive conduct . . . expressing opinion or ideas through the use of symbols."

County prosecutors defended the law, saying that it is intended to limit expressions of intimidation, not free speech.

"That's one judge's opinion," Commonwealth's Attorney Robert F. Horan Jr. said. "Unless you've got some higher court of the same opinion, we're bound to continue to support the statute until some higher court rules it unconstitutional."

Horan said it was the first challenge to the law's constitutionality that he knew of.

According to the law, any person who goes onto the property of another or onto public property and burns a cross with the intent to intimidate someone else is guilty of a felony. "Any such burning of a cross shall be prima facie evidence of an intent to intimidate," the law says.

McCormack said by presuming intent, the law is overly broad. "You may not intend to express anything by lighting a cross in your neighbor's basement to test out a smoke alarm. But under the statute, you are presumed to be a felon."

The unidentified 16-year-old was arrested in December amid a spate of racial incidents at the high school that ranged from graffiti to fights. He allegedly burned a cross on school grounds.

The state argued that the act was not a protected expression of free speech.

"The conduct sought to be prevented by [the code] serves a compelling state interest in discouraging acts of violence, such as those associated with the Ku Klux Klan, the originators of cross burning," argued Steven D. Brigilia, an assistant commonwealth's attorney.

As of two years ago, laws in at least 16 states prohibited the burning of a cross or other religious symbol, said Richard Cohen, legal director of the Southern Poverty Law Center in Montgomery, Ala.

Information compiled by the Anti-Defamation League of B'nai B'rith indicates that 32 states have laws banning intimidation and harassment, including such acts as cross burning and interfering with religious worship.