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

DATE: SUNDAY, April 21, 1991                   TAG: 9104210091
SECTION: VIRGINIA                    PAGE: C3   EDITION: STATE 
SOURCE: Associated Press
DATELINE: FAIRFAX                                LENGTH: Medium

VA. CROSS-BURNING LAW CALLED UNCONSTITUTIONAL

A judge dismissed a felony cross-burning charge against a 16-year-old Fairfax High School student, saying Virginia's law is too broad and abridges freedom of speech.

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

"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."

Brian M. McCormack, the student's attorney, said 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.

"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.

Horan said the ruling by Chief Family Court Judge Jane P. Delbridge was the first challenge to the law's constitutionality that he knew of.

The law states that 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 teen-ager was arrested in December during a spate of racial incidents at the high school that ranged from graffiti to fights. He allegedly burned a cross on school grounds.

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.

by CNB