" 'Error of opinion may be tolerated where reason is left free to combat it.' These words were said more than 200 years ago by Thomas Jefferson as he endured vicious personal attacks in the election of 1800.

Kerry Dougherty's Nov. 6 column disagreeing with the Virginia Supreme Court's decision striking down an anti-cross burning statute reveals a very un-Jeffersonian view of the First Amendment guarantees of freedom of speech and expression. She is not alone.

On Nov. 8, The Pilot published a spate of vitriolic letters to the editor denouncing this decision under the headline, 'Cross burning is hate; justices should have seen that.'

Of course it's hate, and of course they saw that. But hate is legal. The easy (and irresponsible) thing to do is to criticize the opinion without knowing what it says. For those who prefer to speak from an informed point of view, Black vs. Commonwealth may be viewed at www.courts.state.va.us.

The invalidated Virginia statute makes it a felony crime for 'any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway, or other public place.'

Further, the law provides that 'any such burning of a cross shall be prima facie [presumed] evidence of an intent to intimidate. ...' The law makes no exception for 'permissive' cross burnings, such as at a rally or demonstration, and censors only crosses.

The U.S. Supreme Court has stated repeatedly that all 'content-based' laws are 'presumptively invalid.' The government may neither favor nor disfavor particular messages. Moral judgments are reserved to the people.

For purposes of the First Amendment, 'speech' does not mean only words. Flag burning, displaying symbols in support of communism and sit-ins by African-American students have all been deemed 'speech.'

When a statute criminalizes 'fighting words,' courts apply something known as the Brandenburg test (from a 1969 U.S. Supreme Court case), which requires that the government prove that the actor or speaker has the intent to produce imminent lawless action under circumstances showing that violence is likely. Mere intimidation is not enough.

In addition to failing the Brandenburg test, the Virginia statute also ran afoul of a 1992 U.S. Supreme Court decision invalidating a similar statute in Minnesota. Subsequently, such statutes were struck down in New Jersey, Maryland and South Carolina.

Notwithstanding, the Virginia General Assembly took no steps to modify our own anti-cross-burning statute. Simply by amending the law to protect all types and groups of people from all forms of truly threatening conduct, the Virginia statute could have been fixed. The judicial system cannot be blamed for this. Judges do not write laws.

The court's decision does not mean that citizens should feel free to run out and plant crosses in their neighbors' yards, and think that they can get away with setting fires. There are many laws against such behavior, such as trespassing, disturbing the peace, disorderly conduct and numerous fire-control ordinances. The valid laws on the books address conduct as opposed to the message behind the conduct.

The U.S. and Virginia supreme courts did not want to help the defendants in their respective cross-burning cases. Undoubtedly, they were appalled by bigoted behavior. However, the courts recognized that they had an obligation to follow the mandates of the First Amendment. The statutes were at issue, not the facts of the individual incidents.

Of course, one of the ironies is that in the Virginia Beach incident, the homeowners never saw the small cross until the next day, and the attempt to burn the cross failed (it went out). Had the defendants physically attacked the homeowners, they would have been charged with misdemeanor assault. Because of the anti-cross-burning statute, however, they were charged with felonies, even though there was no physical contact and the homeowners never saw a burning cross. What is worse: a physical attack or a mean message?

The other Virginia incident involved a nonviolent rally conducted with a property-owner's permission. Racist? Yes. Threat of imminent violence? No. If this particular anti-cross-burning statute had been allowed to stand, the door would have been flung wide open for the creation of politically correct, 'talk nice' statutes.

Sad to say, people say mean and nasty things. Some Caucasians say awful things about African Americans, and vice-versa. And in the last two months, we have all witnessed the ugly talk and demonstrations against Afghan Americans.

Fair-minded, reasonable Americans disagree with sentiments expressed by bigots and racists. But it is not for the government to regulate what people think or say.

A decorated Vietnam War veteran I admire once said, 'I may disagree with what you say, but I'll fight like hell for your right to say it.'

I believe that Thomas Jefferson and the war hero got it right, and so did the Virginia Supreme Court." (Kevin E. Martingayle, The Virginia Pilot, November 18, 2001)

Kevin E. Martingayle, a Virginia Beach attorney, is counsel for Jonathan O'Mara, one of the defendants in the Virginia Beach cross-burning case.