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The case went all the way to the U.S. Supreme Court, where Black鈥檚 conviction was vacated. Still, banning cross-burnings in certain circumstances was deemed constitutional by the high court and not necessarily a violation of the First Amendment鈥檚 guarantee of free speech.

In his own words

鈥淸A cross burning] tells your adversaries that you are coming.鈥�
鈥� A 1998 comment to a Virginia newspaper

鈥淸The Klan] is no different from the VFW or the American Legion. We have a meeting once a month and we see what good we can do for the community.鈥�
鈥� A 1998 comment to a Virginia newspaper

鈥淲hen is this white man going to stand up to the blacks and Mexicans in his neighborhood?鈥�
鈥� Reported comment to a white sheriff鈥檚 deputy who jailed Black for a 1999 cross burning

Criminal history

Black pleaded guilty in 1968 to larceny and was sentenced to two years probation. In 1971, he pleaded guilty to burglary and was sentenced to three to 12 years in state prison. He pleaded guilty to burglary and receiving stolen property in 1977 and was sentenced to 23 months in prison. In 1987, he was convicted of a firearms violation and sentenced to one year鈥檚 probation. In 1998, he was arrested for violating Virginia鈥檚 cross-burning ban. He was convicted of that offense in 1999, but the Virginia Supreme Court threw out the conviction two years later. On appeal, the U.S. Supreme Court vacated Black鈥檚 conviction after finding the parts of the Virginia statute unconstitutional.

Background

Barry Black, a bit player on the American radical right, is best known as the Klan imperial wizard, or national leader, who was represented by a black American Civil Liberties Union (ACLU) lawyer, David P. Baugh, in a landmark free speech case.
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In 1992, Black, an ex-trucker from Pennsylvania, founded the Keystone Knights of the Ku Klux Klan, a breakaway faction of the now-defunct Invisible Empire Knights of the Ku Klux Klan. The group began to publish The Keystone American, a racist, anti-Semitic newsletter.

That same year, Black was sworn in as constable of Cambria County, Pa. During his first three months in office, he was accused of tampering with mail and extolling the virtues of the KKK to a prisoner he was transporting. The district attorney removed Black as constable based on Black鈥檚 lengthy prior criminal record.

Six years later, in August 1998, Black organized a Klan gathering on private property in rural southwest Virginia. He and other Klansmen delivered venomous diatribes against blacks, immigrants and President Clinton at the event. Then, with the landowner鈥檚 permission, they set fire to a 25-foot-high wooden cross. It was visible from a nearby public highway.

The county sheriff arrested Black at the scene for violating a statewide ban on cross burnings. The ban was rooted in a 1952 anti-cross burning law passed by the Virginia General Assembly in response to a surge in Klan activity. The law banned cross burnings on another person鈥檚 property without their permission. In 1968, legislators expanded that law to outlaw cross burnings in any public place.

Black鈥檚 arrest drew national attention when the ACLU hired a black lawyer to defend him. Attorney David Baugh argued that burning a cross on private land is constitutionally protected free speech, but an all-white jury convicted Black in June 2001 despite those arguments. Black faced up to five years in prison. But the ACLU lawyer appealed the conviction and, in November 2001, a sharply divided Virginia Supreme Court overturned Black鈥檚 conviction, ruling 4-3 that Virginia鈥檚 anti-cross burning law was unconstitutional. Justice Donald Lemons wrote in the majority decision: 鈥淯nder our system of government, people have the right to use symbols to communicate. They patriotically wave the flag or burn it in protest; they may reverently worship the cross or burn it as an expression of bigotry.鈥� In a dissenting opinion, Justice Leroy Hassell wrote, 鈥淔or almost 50 years [the law] has protected our citizens from being placed in fear of bodily harm by the burning of a cross.鈥�

The case went all the way to the U.S. Supreme Court, which found in a 6-3 ruling that Virginia鈥檚 cross-burning statute could be applied to criminal defendants who burn a cross with the intent to intimidate a person or group. Justice Sandra Day O鈥機onnor鈥檚 majority opinion held that Virginia could ban cross burning without infringing on the First Amendment rights of groups such as the Ku Klux Klan, which historically have used the symbol 鈥渁s a tool of intimidation and a threat of impending violence.鈥� She found that the First Amendment 鈥減ermits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.鈥� But the Virginia law was found to have a constitutional defect in that it presumed that anyone burning a cross does so with the intent to intimidate. Because Black鈥檚 burning cross was not meant to intimidate (the gathering at which it was burned was a private ceremony, not a public rally), he was improperly convicted under the statute because he was engaged in protected speech.

After the court decision, Black receded back into the movement鈥檚 shadows and the International Keystone Knights dwindled in strength, though Black still occasionally engages in protests. Black remains in charge of the rapidly declining group.