WASHINGTON - (KRT) - The potent image of a burning cross commanded the attention of Supreme Court justices Wednesday as they grappled with whether it can be a form of symbolic expression protected by the First Amendment or instead constitutes a virulent threat that states can outlaw.

During an emotionally charged hourlong session, several justices appeared to support arguments that burning a cross was tantamount to threatening bodily harm and could therefore be grounds for prosecution. They discounted claims that a Virginia law criminalizing the practice violated free speech concerns.

The arguments produced several remarkable and vivid exchanges between justices and the lawyers on both sides. Justice Clarence Thomas, the lone black on the court who speaks infrequently from the bench, was particularly forceful in suggesting that a burning cross has "no other purpose" than to create a climate of fear and terror.

"It is unlike any symbol in our society," said Thomas, who talked of how cross burnings and lynchings were used to enforce a "reign of terror" against blacks in the South for almost a century. "It's intended to cause fear and terrorize a population."

Justice Antonin Scalia compared burning a cross to brandishing a gun, saying, "This is not just speech. It's action that is intended to convey a message."

But other justices appeared concerned that the state of Virginia had gone too far when it said all cross burning was presumably intended to intimidate its targets.

Justice Sandra Day O'Connor, for example, asked whether the state law also would ban cross burning in a play. Justice Anthony Kennedy asked whether the law singling out cross burning for prosecution was necessary, when the state could charge offenders with intimidation under other criminal statutes.

The case came about in 1998 in the wake of two incidents of cross burning. In one case, Richard Elliott and Jonathan O'Mara burned a cross in the lawn of a black man who lived next door to Elliott. In the second, Barry Elton Black burned a cross at a Ku Klux Klan rally, which was held on private property, and frightened a neighbor.

All three men were convicted of violating a state statute that makes cross burning a crime when it is intended to intimidate someone. The law also presumes any burning of a cross is evidence that the offender intended to intimidate.

But in a decision last year, the Virginia Supreme Court ruled the state law unconstitutional and reversed the convictions. The state Supreme Court said the legislature had singled out a "particular form of intimidating symbolic speech" when it passed the law, in violation of the First Amendment.

In urging the justices to reverse that decision, Virginia state solicitor William Hurd argued that the law protected another important freedom, the "freedom from fear," and that it only banned cross burning that was used to threaten bodily harm.

"We can ban cross burning as a tool of intimidation, even though people who practice cross burning carry a message of bigotry," Hurd told the justices. "It also carries the threat of bodily harm. It rings a little hollow when the Klan comes to court and complains the state is treating the burning cross as having a message they for decades had wanted it to have."

The Bush administration also argued that Virginia was entitled to single out cross burning for prosecution. Justice Department lawyer Michael Dreeben said cross burning was "akin to a threat to put somebody in fear of bodily harm."

Thomas told Dreeben he feared supporters of the law were actually underestimating the threatening implications of cross burning, noting it served "no other purpose" than to cause fear and terror.

But University of Richmond Law School professor Rodney Smolla, arguing on behalf of the three defendants, said the state instead had targeted a particular, powerful symbol and was punishing people who expressed an unpopular message, in violation of the First Amendment. Smolla was joined in legal briefs by the American Civil Liberties Union.

Smolla said the case was indistinguishable from a 1992 Supreme Court case, in which the court declared unconstitutional a St. Paul ordinance that banned cross burning and other virulent symbols such as swastikas.

Smolla said that as vile and distasteful as the image may be, a burning cross could convey a message other than a threat. The First Amendment, he argued, protects the right to communicate through symbols. His point produced a vivid exchange with Justices Scalia and David Souter.

"How about a cross on your lawn?" asked Souter.

"I dare say," injected Scalia before Smolla could reply, "if you were a black man at night, you'd rather see a man with a rifle than a burning cross."

After the cross burning arguments, the justices took up another case that, while less emotionally charged, has significant implications for those seeking to hold corporations accountable for wrongful conduct.

At issue in that case is whether the Utah Supreme Court was wrong to reinstate a $145 million punitive damages award against State Farm Mutual Automobile Insurance Co. for its initial refusal to settle lawsuit against a policyholder involved in an automobile accident.

Sheila Birnbaum, a lawyer for the company, argued that the state Supreme Court misinterpreted a 1996 U.S. Supreme Court decision on punitive damages and that the jury's award was so excessive it violated the Constitution.

But Harvard Law School professor Laurence Tribe, representing the policyholder, said the punitive damages in the case were justified by State Farm's pattern of wrongful conduct in other cases and that high damage awards were appropriate to force large companies to take action.

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© 2002, Chicago Tribune.

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