The high court's ruling, expected sometime next year, could clarify how far states may go in banning a practice associated with racial hatred and intimidation, but accorded some constitutional protection.
The court agreed to hear an appeal from Virginia, where the state Supreme Court struck down a 50-year-old law that made it a crime to burn a cross to intimidate someone. The sharply divided lower court ruled that the state law was unconstitutional because such acts of bigotry are a protected form of speech.
The Virginia law was a response to the Klan's practice of setting crosses ablaze as a threat or warning to black people. But its wording says nothing about a racial motive, instead banning the practice whenever its intent is to frighten the victim.
The right to free speech is not absolute. The Supreme Court has previously ruled that the government may prosecute some kinds of threatening or violent speech. The line can be fuzzy, since the government may not discriminate against speakers based solely on what they have to say.
Ten years ago, the Supreme Court struck down a hate-crime ordinance from St. Paul, Minn., that banned displays of Nazi swastikas or burning crosses that were intended to anger or alarm people "on the basis of race, color, creed, religion or gender."
The high court called that law an unconstitutional discrimination against speech based on its content.
State and federal courts have since divided over whether the 1992 ruling dooms all laws banning cross burning, or only those that focus on the ethnic or sex characteristics of the victim.
Courts in three states — Florida, Washington, and California — have said the ruling does not apply to their laws. The laws of four states — South Carolina, Maryland, New Jersey and Virginia — have been struck down.
Virginia asked the Supreme Court to use this case as a way to clarify its earlier ruling. Nine other states filed a friend of the court brief also asking for clarification.
Virginia argued that its law properly focuses on the threatening or violent nature of cross burning, and not on the motive of the perpetrator or any defining characteristics of the target.
"The statute bans cross burning by anyone whose intent is to intimidate anyone for any reason," the state wrote in legal papers.
The pro-law enforcement Criminal Justice Legal Foundation, which also backed Virginia, argued that states should be able to ban a practice that is an obvious and threatening invocation of the country's racially divided past.
The Virginia law "is justified without reference to the fact that it may inhibit the expression of bigots more than it does the expression of believers in racial equality," the foundation argued. "The burning cross is singled out because its history of usage by a large, powerful terrorist organization causes it to strike a deeper fear into the hearts of the targets."
The Virginia case concerned three white men convicted in two incidents in the late 1990s. One case involved the burning of a 30-foot cross at a Ku Klux Klan rally; the other involved an attempt to burn a smaller cross in the yard of a black neighbor with whom one of the perpetrators had a beef.
Barry Elton Black of Johnstown, Pa., was convicted and fined $2,500 for the cross burning at a Klan rally in southwest Virginia. The case drew national attention when the American Civil Liberties Union hired a black lawyer, David P. Baugh, to defend Black.
In the other case, from Virginia Beach, Richard J. Elliott and Jonathan O'Mara were fined $2,500 and sentenced to 90 days in jail.
The court threw out the men's convictions, saying "under our system of government, people have the right to use symbols to communicate."
Virginia has since passed a new version of the law intended to get around the free speech concerns the state court found. The new law makes it a crime to burn anything, including a cross, as a threatening symbol.
The case is Virginia v. Black, 01-1107.