Fanning the Flames

James S. Jubilee, an african-american resident of Virginia Beach, Virginia lived next door to Richard Elliott, who is not african-american. Elliott and his friends frequently fired guns in Elliott's backyard, to the dismay, if not aggravation of Jubilee.

On more than one occasion, Jubilee complained to his neighbors about the discharging disturbance. Elliott didn't see that behavior on Jubilee's part as very neighborly. So, on May 2, 1998, he and another pal, Jonathan O'Mara hatched a plot to 'get Jubilee.' What they came up with was to burn a cross in Jubilee's yard.

Elliott, O'Mara and co-hort David Targee built a wooden cross in Targee's garage. It was then driven to Jubilee's home. All the while, the victim-in-waiting was referred to with the typical racial epithets. Once they arrived at the home of their target, the cross was stuck in the ground and lit. It partially burned.

Barry Black is a member of the KKK. He was taking part in a Klan rally on private property, and obtained permission to burn a cross as part of the ritual. By the way, Mr. Jubilee did not give his permission to trespass or to go cross-burning.

Barry Black, Richard Elliott and Jonathan O'Mara were charged, pursuant to a cross-burning statute. A statute that had been passed in its original form 50 years earlier by the Commonwealth's General Assembly, ironically as a result of Klan activity in the state. Black was tried, convicted and received a $2500 fine.

Elliott was also tried and convicted by a jury for attempted cross-burning. He was sentenced to 90 days and a $2500 fine. Finally, O'Mara pleaded guilty to attempted cross-burning and conspiracy and was also sentenced to 90 days and a $2500 fine. All three appealed.

The court of appeals upheld all three convictions. The Virginia Supreme Court had different ideas. They adhered to a First Amendment principle articulated by the U.S. Supreme Court: "However pernicious the expression may be, if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

It's difficult to disagree with the pronouncement, especially now that it's practically an insurrection against the current administration to express yourself in a way that is contrary to something that they are involved in. But as I have stated many times, it is especially necessary that we are unwavering in our constitutional principles in trying times.

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