In part two of the story of Barry Black, we finally get to the landmark supreme court case that won the klansman the right to burn crosses. Barry's Keystone Knights faded into relative obscurity after the high profile case and Virginia passed a new law aimed to prevent men like Barry from using fire as a tool of intimidation. Sources: https://law.duke.edu/voices/virginia https://www.oyez.org/cases/2002/01-1107 https://unprecedented.substack.com/p/transcript-bodily-harm-is-coming https://time.com/archive/6615465/south-carolina-backfire/ https://www.cnn.com/2016/07/05/us/georgia-kkk-adopt-a-highway-lawsuit/index.html https://www.nbcnews.com/news/nbcblk/former-kkk-headquarters-terrorized-town-years-now-will-become-diversit-rcna20865 https://www.kait8.com/story/3384156/prison-officer-fired-for-kkk-membership-sues-arkansas-correction-department/ Unite the Right audio from videos by photojournalist Zach D Roberts & publicly available video recorded by the marchers themselvesSee omnystudio.com/listener for privacy information.
Welcome back to the second half of the story of Barry Black, the Pennsylvania Klansman.
Bye!
Barry Black's main claim to fame is being the Black Inn, Commonwealth of Virginia v.
Black, the 2003 Supreme Court case that found Virginia's cross-burning statute unconstitutionally overbroad.
I set out to learn a little more about that landmark decision and the life of the man who won it because it comes up often in some cases going on now.
The prosecutions of the torch-bearing white supremacist who came to Charlottesville in 2017.
And I found a lot more than I bargained for.
I don't know what I expected, but...
Last week's story of a small-town war on a rural gay bar, complete with side characters like a notorious federal informant who worked for Linton LaRouche, and a street preacher who was a central figure in the Obama birtherism conspiracy, definitely surprised me.
This week, though, we'll actually get to Barry's infamous cross-burning, and the black ACLU lawyer who fought for the Klansman's rights.
That victory went worldwide.
I said case presence.
I said case law.
And we proved that the law does work yet.
I can light it across anywhere in the United States of America that I want to light it.
Barry Black fought the law.
And he won. But a new law was born from the ashes of the one Barry burned.
I'm Molly Conger, and this is Weird Little Guys.
When we left off last week, Barry Black and his Keystone Knights had gotten into a little
hot water at their White Bride picnic.
Oh, yeah.
In July of 1998, Barry held a Klan picnic on a farm owned by Don and Lisa Penrod in Somerset County, Pennsylvania.
When Barry held a Klan rally at the Casanova Lounge, the county's only gay bar, the year prior, the Penrods farm was the pre-rally staging area and the site of the post-rally cross-burning later that evening.
They weren't just concerned neighbors whose opposition to the gay bar made them unlikely allies with the Klan.
They were members.
Lisa Penrod, in fact, commanded the Women's Auxiliary Unit and served as the Imperial Secretary of the Invisible Empire International Keystone Knights of the Ku Klux Klan under Barry's leadership.
And on July 25, 1998, Don and Lisa Penrod were two of the ten Klan members standing at the fence line on the Penrod farm, demanding answers from a man in their neighbor's tree.
That man turned out to be a state trooper, and Don Penrod was one of four attendees at the Klan picnic who was arrested for threatening the trooper at gunpoint.
Barry himself posted Don Penrod's $10,000 bond.
The week after the picnic, Cambria County District Attorney David Tulewitzki filed a petition with the court to have Barry Black removed from the office of constable, an elected law enforcement position he'd won by a single write-in vote the year prior.
History was repeating itself.
Barry was elected constable of Johnstown's 21st Ward in 1991 and was removed from office just a few months later when the county prosecutor filed a petition to have him removed on the grounds that his criminal record made him ineligible to hold a position of public trust.
A judge agreed. Berry appealed that decision and fought it all the way to the Pennsylvania Supreme Court, holding Klan rallies at courthouses and in small towns throughout the year-and-a-half-long appeals process.
The state's highest court told Berry in 1993 that he wasn't allowed to be the constable, and nothing in the law had changed in the five years since, but here he was fighting the same fight all over again.
This time around, he argued that the petition to remove him from office was retaliation, pure and simple.
The county was punishing him for his Klan rally and for the complaint he'd filed against the state troopers who arrested his friends at the picnic.
In mid-August of 1998, the issue of whether the Klansman could continue operating as constable was with the courts.
There was no injunction preventing him from acting as a law enforcement official, but the county had apparently instructed officers of the court to use him to serve warrants as sparingly as possible in the meantime.
Berry's lawyer shrugged this off, telling the local paper, I think he's pretty well preoccupied with his grand wizardry in the Klan.
And that's true.
He was keeping busy.
And it was in August 1998 that Barry Black took a road trip.
This wasn't Barry's first out-of-state Klan field trip.
Six people were arrested when the crowd got out of control during Barry's opening prayers at a Klan rally in Millville, New Jersey in 1990.
When Berry headlined a cross burning in Maryland in 1991, the Washington Post printed the slurs that came out of his mouth.
When Klan leaders from six states converged in Ohio in 1995, Berry told the Cincinnati Enquirer that it was like a family reunion and lamented that no one ever gives the Klan credit for all the good things we do.
When Klansmen in South Carolina came under federal investigation for burning down black churches, Barry was there, at a cross burning in Lexington in 1996, pledging the support of the Keystone Knights in this legal battle to come.
No, his lawyer was right.
Barry was very busy being the Grand Wizard.
He was always driving off to Indiana, Ohio, Maryland, or just the other side of Pennsylvania for some appearance at a Klan event.
This trip to Virginia should have been like any of the others.
Show up, make a scene, light a cross, upset the locals, and head home again.
But this time was different.
The Keystone Knights of the Ku Klux Klan packed up their white robes and their cross-burning supplies and made the six-hour drive from Johnstown, Pennsylvania to Hillsville, Virginia, a small town in Carroll County in Virginia's far southwest tip, not far from the North Carolina border.
And here's Barry, in his own words, talking about the event in an interview recorded in 2005 for Duke University School of Law's Voices of American Law project.
What I was doing down there was starting a new den or starting a new clavern, giving the people the books to read, telling the people what we expect of them and how we want them to become pillars in their community.
Pillars of the community, he says.
And when he was placed in the back of a deputy's patrol car that night, he offered some insight into what he meant by that to Carroll County Sheriff's Lieutenant Rick Clark.
Here's Virginia Solicitor General William Hurd relaying that statement to the Supreme Court.
What we had in the case of Barry Black was he heard that—he's from Pennsylvania—he heard that down in Carroll County, Blacks and whites were holding hands on the sidewalk.
Barry Black was arrested that night, handcuffed and taken away while the cross was still burning.
Because regardless of why he came, what he'd done was a felony here in Virginia.
The first half of this story opened with a 12-foot cross set ablaze in a peanut field in Suffolk, Virginia in 1948.
Local agricultural union workers denounced it as an act of terrorism and demanded a response from state government officials after being brushed off by local law enforcement.
It just wasn't a crime.
Newspaper archives for the next few years show a frustrating pattern.
Crosses were burning all over the state, and every time it happened, it was dismissed as some isolated incident, some kind of prank, some kind of childish act of vandalism.
Every cross that burned in Virginia was written off by newspapers and cops here in Virginia.
But those same papers ran stories of flaming crosses in Tennessee and South Carolina, properly identifying those as what they were.
A burning line in the sand, keeping Black Southerners from moving into white neighborhoods, from getting elected to office, from gaining civil rights, and from feeling safe in their homes.
In late 1949, a series of cross burnings culminating in an explosion destroyed the construction site for a planned housing project for Black residents in Nashville.
After Judge Wadey's Waring opened South Carolina's previously whites-only primaries to Black voters, his home was targeted repeatedly, with crosses burning on his front lawn in 1950.
But the same papers that ran those wire stories from cities and other states wrote their own local coverage of cross burnings closer to home with a very different tone.
When a cross burned in Nashville or Charleston, it's safe to say that those cities have racial unrest.
Those cities have the Klan.
In the summer of 1950, several black residents of Colonial Beach, Virginia filed a lawsuit to force the locality to allow them to swim in a public beach.
The town relented.
There was no need to go to court.
The beaches are open to all residents.
But when those black residents and their attorney went to the beach to see if that was true, 500 white men attacked the 15 black beach goers.
Later that week, crosses burned all down the beach.
Another cross was erected and burned outside of a black church, accompanied by rifle fire, and the letters KKK were scrawled on sidewalks all over black neighborhoods.
The town council took no official notice of the cross burnings and said they not only had no obligation to anticipate unrest at the beach, But it would, in fact, amount to discrimination to have done anything to ensure those Black residents could access the beach.
There was no KKK in Virginia in 1950.
Just look at any newspaper anywhere in the state.
When a woman found a cross burning on her front porch in Norfolk in September of 1950, the police told the Norfolk Ledger Dispatch that it was only a small cross, just two feet high, and, quote, the Klan usually puts on a bigger show.
There had been eight cross burnings in neighboring Nanzaman County in just the last few months, but this was probably just mischievous kids.
The Bristol, Virginia, Tennessean reported in October of 1950 that the 12-foot cross burned on a hillside near the reservoir where it was visible to hundreds of residents was just a prank.
There's no way to know what those men in hoods were doing up there, and a police captain told the paper that the Confederate flag left behind was evidence that this was obviously just a prank.
That same newspaper had been running coverage of a Klan march in South Carolina just six weeks earlier.
After lighting up a cross in Myrtle Beach, the Klan marched into town, surrounding a black dance hall.
There was a riot. Charlie Fitzgerald stood in the doorway of his bar with a gun, but he never had a chance to fire it before the mob beat him and shoved him into the trunk of a car.
The Klansmen emptied their guns into the sides of the building, riddling the walls with bullet holes and shattering all of the windows.
Amidst all this chaos, one of their own took a stray bullet in the back.
When his robes were removed at the hospital where he died, he was wearing a policeman's uniform underneath.
These stories running in the same paper may give you some insight into a small-town police officer's eagerness to explain away these flames on a hillside, but you can draw your own conclusions.
The Klan was thriving again across the South.
In January of 1951, the state of Georgia outlawed cross-burning in an effort to stem the tide of this white-robed violence.
In February of 1951, crosses were lit outside the homes and businesses of Black residents in Goochland and Henrico counties in Virginia.
Black families reported seeing half a dozen men firing their guns into the air as they ran back to their cars after lighting the flames.
The FBI said it was a local matter.
The sheriff said it was pranksters.
When the local NAACP demanded an investigation, the county prosecutor said, there is definitely no racial relations question connected to the recent cross burnings.
By June of 1951, Florida, Alabama, and South Carolina had joined Georgia in banning cross burning.
Across the South, the crosses burned, and there was no question about what it meant.
Except when it happened here.
The same papers that ran the Wire stories about the legislative attempts to combat Klan activity everywhere else said the six-foot cross doused in gasoline in the middle of Route 1 in Stafford was just a prank.
It was just kids messing with traffic.
In August of that year, a widow in Appomattox was awoken in the middle of the night by the sound of an explosion.
The cross burning on her front lawn had ignited the dynamite laid at its base.
A postcard from the Klan was left at the scene.
The newspaper ran the headline, Crossfire lacks motive, with the sheriff quoted saying, My office dropped the matter.
It was probably a personal thing, or just some children.
In my haphazard search of newspaper archives, I found nearly a hundred of these pranks in Virginia in the 1950s.
A white cop tells a white reporter that there's nothing to worry about here, it's only a joke.
as a black family douses the burning embers on their lawn.
No one could see the racial terror we already had here at home.
It was always kids or vandals or pranksters.
But in 1952, the Virginia State Legislature was finally ready to act.
Responding to reports that Florida Klan leader Bill Hendricks was planning a rally in Richmond, and South Carolina Klan leader Thomas Hamilton was planning to start chapters in more than a dozen towns in Virginia, a bill was introduced to outlaw the wearing of masks in public.
At the urging of religious groups, a ban on cross-burning was added.
The threat of these out-of-town Klansmen pushed the bill through without significant pushback, and it was signed by Governor John Battle in April 1952.
But changing the law didn't change anyone's attitudes.
Throughout the 1950s, most of the cross-burning stories I could find were dismissed as pranks.
And, if I'm being entirely honest, some of them might have been.
There were several cross burnings in Newport News that teenage boys eventually confessed to, with one cross being placed on the lawn of a state delegate by mistake.
The boys said they were pranking their high school teachers, and I did find at least three stories of high school teachers in Newport News who had crosses burned on their lawn.
The boys' names were never published, so I don't know what they got up to later in life.
And I have to wonder exactly what kind of pranks these were.
It was the 50s. Had those teachers expressed support for integration?
Did they go on dates with black women or rent property to black tenants?
It wasn't unheard of for behavior like that to earn a white man a visit from those seeking to enforce the established social order.
But it's impossible to say 70 years later what prompted those nighttime visits from their students.
And I tell you about these ones that maybe were pranks, because I don't think any of them being pranks really helps explain it at all.
If anything, it underscores how widespread and commonly understood this was as a symbol.
You didn't have to be a Klansman to know what it meant.
You didn't have to mean it yourself to know how it would be read.
In 1965, George Lincoln Rockwell, the founder of the American Nazi Party, ran for governor here in Virginia.
He didn't win, obviously.
He got nearly 6,000 votes though, 1% of the total cast.
The new governor was Mills Godwin, once a staunch segregationist who had distanced himself from the political machine of Harry Byrd.
Whether he had a change of heart or just saw the writing on the wall after the failure of Virginia's massive resistance to school desegregation is impossible to say.
But in December of 1966, Governor Mills Godwin announced a $1,000 reward for information leading to the arrest and conviction of crossburners.
In response, the Klan burned a cross outside the governor's mansion.
The Klan did rear its head in certain areas of Virginia in that period, even to the extent that they burned a cross on the sidewalk right behind the A rash of cross burnings followed.
Crosses burned all over the state of Virginia in protest of Governor Godwin's declaration of war against the Klan.
On New Year's Day 1967, Wilson Ralph Price and his wife Nanny Jane Price were arrested for burning a cross on a sidewalk in Richmond.
All three of their young children were waiting for them in their parked car, where police found several loaded guns, a second cross they intended to burn elsewhere later that day, and a stack of Klan literature.
Barry Black wasn't the first Klansman to fight this law and win.
Price had his conviction overturned by the Virginia Supreme Court a year later, with the court ruling that, technically, the law didn't apply here.
The Price's had burned that cross on public property, on the sidewalk, not on the property of another, as stated in the statute.
The Virginia General Assembly amended the law that year to include a ban on cross burning on public property as well.
In 1968, the state Supreme Court seemed to believe that the purpose of banning cross burning was to protect private property.
The law didn't protect people, it protected their lawns.
And with this amendment, the legislature clarified their intention.
The law isn't about property or trespass or the possibility of danger from the flames themselves.
It is intended to prevent a particular act of intimidation.
But in their efforts to close off this avenue of attack, they accidentally created another.
This amendment to the statute also added language that, quote, The unlawful burning of a cross shall be prima facie evidence of the intention to intimidate a person or group of persons.
This language was likely intended to get around the defense of, well, it was just a prank.
Burning a cross is such a heinous act with no other purpose than to intimidate that if you can prove it was done at all, then the starting assumption is that it was done to intimidate.
So this amendment to the law shifts the burden of proof to the party trying to prove otherwise.
So when Barry lit that cross in Carroll County on August 22, 1998, the law on the books read,"...it shall be unlawful 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 space." Any person who shall violate this section shall be guilty of a class 6 felony.
Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.
And Barry had done that.
When the sheriff's lieutenant arrived, he asked, Who lit this cross?
And Barry stepped forward and claimed responsibility.
He was charged in Carroll County and released on bond, but he was having a hell of a time finding a lawyer.
Most lawyers in the area wouldn't even return his calls.
But then, as in so many cases of extremists trying to force their way into the conversation about civil rights, the ACLU stepped up without even having to be asked.
When I walked into the courthouse, I just looked at him.
He says, is there something wrong here?
And I says, you're David Ball.
He said, yeah. I said, you're black.
He said, yeah. I said, are you going to fight for me?
Are you going to give me 151%?
He says, I'm not going to change your views.
He says, and my views about you aren't the greatest in the world either.
He says, but I will give you 151%.
You have my word on that, sir.
He says, I'll defend you to the end.
And I says, good enough.
The Virginia ACLU was no stranger to this strange bedfellows type of attorney-client relationship.
Just a few years earlier, they'd taken on the case of Buddy Hernandez, a Klansman who was arrested in 1989 for handing out Klan literature while wearing full Klan regalia, including a hood that covered his face.
Like the cross-burning law, Virginia's anti-masking statute was adopted in 1952, with the explicit intention of curtailing Klan activity.
The anti-masking statute was upheld by the Virginia Supreme Court, and the actual Supreme Court declined to hear Hernandez's case in 1994.
ACLU attorney David Baugh went to bat for Barry, and he spent years on the case.
When the pair first appeared in court together, the Richmond Times-Dispatch ran the headline, Crowd Likely as Black Defends Klansmen.
The news stories can be a little tough to parse sometimes because our Klansman's name is Black, and the African-American attorney representing him is being referred to often in these newspapers as A-Black.
And the case was getting a lot of publicity.
This tiny town of just 2,700 was suddenly swarming with reporters and lawyers.
The state attorney general's office sent a team to assist the local prosecutor.
Carroll County District Court Clerk Christine Beck told the paper, It's going to be a circus, and added, I guess some things are just fascinating, like the sex lies of the president.
This would have been right around the time the Star Report was released to the public, and everyone was just in a frenzy about the Monica Lewinsky scandal.
The last few months of 1998 were hectic for Barry.
Now he was fighting his own case down in Virginia, but the four Klansmen arrested at the White Pride picnic were still fighting their cases at home in Pennsylvania.
A few weeks after this cross burning, Barry was kicked out of the courtroom during a hearing in Don Penrod's case for pointing his rifle at that state trooper.
And Barry had to appear in court repeatedly in his fight to keep his job as constable.
He's under more scrutiny than ever.
His local prosecutors, state troopers, and the courts in Virginia were just waiting for Barry to make a mistake.
In March of 1999, a judge in Virginia ruled against a motion to dismiss Barry's criminal case, rejecting the argument that cross-burning was protected First Amendment conduct.
A few days later, Barry was back in court in Pennsylvania, railing against the corrupt judicial system trying to take away his job as constable.
He told reporters in the hallway after the hearing that if they would just let him keep the job, he would be too busy working to keep up his Klan activities.
That's not really a great argument, if you ask me.
You know, just let me be a cop and I'll be too busy to do crime.
I don't know that that's very convincing.
And while we're on the subject of guys who probably should not be cops, I want to pick up a thread from the story last week.
Barry's involvement in the war on the Casanova Lounge doesn't really factor into this week's story.
He's too busy with his own problems at this point to be bothering with that gay bar.
But the situation was ongoing.
And it was around this time, in the spring of 1999, that something the bar's patrons had long suspected was proved to be true.
The bigots had an inside man.
Ron Imler, the police chief in neighboring Connemaw Township, had been running license plates for the protesters and supplying them with the names and home addresses of the people who visited the gay bar.
Imler denied these accusations, but he suddenly retired.
The Pennsylvania State Police Bureau of Technology Service informed the town supervisors in a letter that Ron Imler had violated state and federal law by providing confidential information obtained through state computer databases to an unauthorized person.
It's not clear to me if Imler was ever charged or prosecuted for this.
There's no record in the online information system for Pennsylvania's courts.
It could be that this is very old.
I did find other records from that year.
It could be that he had it sealed or expunged.
But it's possible that he was just never charged.
So we do have on record that the state police informed the township that their police chief had broken the law.
But it's not clear that the local prosecutor ever brought those charges.
So it's not always as literal as that dead Klansman in South Carolina who was wearing his police uniform under his robes.
And Barry wasn't the only law enforcement official in the area whose vision of law and order included harassing that bar out of existence.
But back to Barry.
Things didn't improve much for Barry as 1999 wore on.
Don Penrod and two other Klansmen were convicted for threatening those state troopers at the White Pride picnic, and Barry was once again removed from the office of constable by the courts.
He tried to appeal the decision, as he had the first time around, but it didn't work out.
He filed a federal lawsuit against the state police, but his case got tossed before it even got off the ground.
He had to bail his son, Barry Jr., out of the local jail three times that year, including one night after the younger Barry was arrested for threatening someone with a gun.
And in June of 1999, an all-white jury in Carroll County deliberated for just 25 minutes before finding Barry Black guilty of cross-burning under that Virginia statute.
They had the option of giving him up to five years behind bars for this class-6 felony, but the jury decided on just a $2,500 fine.
I can't just say, hey, no, here's $2,500, forget it.
If I did that, I'm letting my race down.
I have to make people know that America is still a land of opportunity, that America is still a land of democracy, and that the Constitution of the United States of America still means something.
His attorney, David Baugh, vowed to appeal the conviction, saying the cross was burned as part of their ceremony, not because they wanted to intimidate anyone.
And the first appeal didn't go their way.
In December of 2000, the Virginia Court of Appeals upheld Barry's conviction.
But they kept fighting.
A year later, the Virginia Supreme Court agreed with Barry.
Virginia's cross-burning law was unconstitutional.
The opinion noted that similar statutes in Maryland and South Carolina had been ruled unconstitutional in recent years.
And the law on the books was indistinguishable from the Minnesota law struck down in the 1992 Supreme Court case RAV v.
City of St. Paul. The issue here arises in that 1968 amendment to the law about the act itself being sufficient evidence of intent.
And just a quick side note here, I don't want a Monday morning quarterback the state Supreme Court, but they are mistaken about something here.
The opinion incorrectly states that the prima facie evidence of intent language was added in 1975?
But it was 1968, and I can promise you that.
I pulled copies of the Acts of the General Assembly for every legislative session that this code section was touched.
The prima facie requirement was inserted when the law was amended in 1968, after the state Supreme Court overturned Wilson Price's conviction.
I think the origin of this error is that the code section does show a revision was made in 1975.
But if you pull the full text of the 1975 session, it's because everything in Title 18 was technically amended in 1975 because they rearranged and recodified the entire criminal code.
So the language of the statute stayed the same between 1968 and 1975.
They just changed the numbers.
That doesn't matter at all.
I didn't need to tell you that.
I'm just flexing on some court clerk from 24 years ago, I guess.
Sorry. But anyway...
This decision rested on that language.
The law couldn't be content neutral if this baked-in assumption of intent rested on the historical context of cross-burning.
So basically the court is saying you can't have it both ways.
Either the law is constitutional because it is content neutral, it applies to everyone regardless of their motivation, or you can justify the inference of intimidation by relying on the history of the Klan.
But both of those things can't be true at the same time.
And because Berry wasn't the only person arrested for burning a cross in Virginia in 1998, this appeal to the state Supreme Court was actually three cases rolled up into one.
So the court wasn't just reversing Berry's conviction in this opinion, they were also throwing out convictions against Richard Elliott and Jonathan O'Mara, two men who'd been convicted for burning a cross on a Black family's lawn.
Now, Barry has an argument here.
I don't like it.
I don't have to like it.
But it's true.
There wasn't really a victim in this case.
He was on private property at the invitation of the owner.
And they didn't really intend for anybody to see what they were doing.
The landowner's niece by marriage, who was living elsewhere on the property, did testify in the original case that she saw the cross burning and had been frightened, but she was arguably not any kind of intended audience.
It's not even clear if they knew she was there.
For Elliott and O'Mara, though, their cases did not rely on prima facie evidence of intent.
There was actual proof of intent.
There was a victim here.
They absolutely intended to intimidate that family and should rightfully be punished under this law.
So the state of Virginia appealed the state Supreme Court ruling to the Supreme Court, and all three of these cases rolled right on up together.
And I'll admit that before I started picking this story apart, my sort of general understanding of Commonwealth v.
Black was that the Supreme Court ruled Virginia's cross-burning law was unconstitutional.
And that is what happened, but it's not entirely straightforward.
Even the men's own lawyer, Rodney Smola, wasn't sure what to make of the decision the day he read it.
I'm reading, and I read the first sentence, and I think, well, no, I won.
I read the second sentence, and I say, no, I lost.
And then I get through the first set of opinions by Justice O'Connor, and I wasn't sure.
The decision, announced by Justice Sandra Day O'Connor, was kind of a mixed bag.
The court ruled that, yes, the Virginia Supreme Court was right about the prima facie element of the law making it unconstitutional.
The act of burning a cross may mean that the person is engaging in constitutionally proscribable intimidation, or it may mean only that the person is engaged in core political speech.
The prima facie provision blurs the line between these meanings.
The First Amendment does not permit such a shortcut.
Thus, blacks' conviction cannot stand and the judgment as to him is affirmed.
But they were also clear in their opinion that Virginia can enforce a law banning cross-burning so long as that law requires an intent to intimidate.
If it can be proven that the act was carried out with such an intent, it's not free speech anymore.
It's a true threat, and threats are not protected by the First Amendment.
We hold that a state consistent with the First Amendment may ban cross-burning Barry won.
His conviction was overturned.
The highest court in the land agreed.
It was his constitutional right to light that cross.
The Supreme Court did reverse the Virginia Supreme Court rulings that had overturned Richard Elliott and Jonathan O'Mara's convictions.
Their cases were kicked back down to the lower courts, and ultimately, they were convicted and did serve time.
And after a lifetime of fighting losing battles, You might think Barry came away from this emboldened, empowered, ready to ride this victory into more marches, more recruiting, more cross burnings, more anything.
But he didn't, really.
He was 55 the year the Supreme Court gave him their blessing to burn crosses.
He probably did burn a few more.
But none of them made the news.
He'd planted some seeds as an imperial wizard, but none of them really thrived.
Corporate entities with names that seemed to tie them to Barry's Keystone Knights existed in several states, but most of them withered and died.
The International Keystone Knights of the Realm of Ohio registered with the state of Ohio in 2002, but they stopped filing annual paperwork in 2013.
The Invisible Empire International Keystone Knights of the Ku Klux Klan Incorporated was registered in Indiana by Barry himself in 1997.
The South Carolina-based nonprofit Barry Incorporated in 1999 technically still exists on paper, despite the deaths of both Barry and the local Klansmen he ran it with.
A Virginia chapter of the Keystone Knights incorporated a few months after the Supreme Court victory in 2003, but there's no record I can find of the chapter getting up to anything, and all record of the entity disappears entirely after 2008.
Stephen Dinkle, the one-time leader of a Keystone Knights chapter in Alabama, was convicted of a federal hate crime in 2014 for a cross-burning.
After his release, he was convicted again for a federal firearms-related offense, and in 2017, he was sentenced to 10 years for sexually assaulting an incapacitated woman.
A man named Willis Frazier still files annual paperwork with the IRS for the Indiana-based entity using the Keystone Knights name.
In 2004, Frazier tried to sue the state of Arkansas after he was fired from his job as a prison guard for being a member of the Keystone Knights.
But his suit was dismissed.
The only place the Keystone Knights have popped up in recent years was their legal battle with the state of Georgia over the denial of their application to the state's Adopt-a-Highway program.
The ACLU stepped in to help secure the Klan's right to put their name on a sign on the side of a Georgia highway.
That Keystone Knights chapter in Georgia seems to be the only one that really still exists, with Willis Frazier's name on some of that paperwork, tying it all the way back to Barrie.
The Keystone Knights are...
more or less dead.
And Barry Black is entirely dead.
He passed away in 2018.
He lived a life of hatred.
He spent most of his life feeling persecuted and aggrieved, fighting what he saw as a righteous battle for his civil rights.
His right to disrupt life in a small town with his Klan rallies.
His right to serve as constable.
His right to lead armed mobs that threatened to shoot cops.
His right to burn crosses.
His right to make his bigotry your problem.
The part of Barry's legacy I'm most interested in, though, is the law written to stop the next Barry Black.
♪♪ ♪♪
♪♪ While Barry Black's cross-burning appeals
were working their way through the appeals process, The Virginia General Assembly had already corrected the
problem.
They knew the law they'd used to prosecute Barry wasn't going to hold up.
And instead of amending the existing statute, they passed a new law in 2002.
The language about prima facie evidence of intent was gone, of course.
But there was another huge change.
The cross itself was missing.
This new law outlawed burning anything, if it was done with the intent to intimidate.
It's still understood to be a cross burning law, but it doesn't actually say that.
It doesn't say that at all.
Cross burnings never stopped, of course.
They still happen here from time to time.
In 2020, a man named James Brown burned a cross outside the home of a Black teenager who'd been involved in organizing Black Lives Matter protests in Marion, Virginia.
He served 18 months for criminal interference with federally protected rights.
Darrell Orange was convicted in 2010 under the original cross-burning law, which was left on the books for some reason, after he burned a cross on his neighbor's lawn in Bedford, Virginia.
Many cross burnings go unsolved or unprosecuted, and some of them are still dismissed as pranks.
This new law has never really been tested.
Until last year, I can only find a single case where it's ever even been used to charge someone.
On the 4th of July in 2019, a man in Williamsburg pulled up in front of a Walmart, got out of his car, put an American flag on the ground, and set it on fire.
He didn't threaten anyone, he just lit it up, shouted a bit about how he hated America, and drove off.
He wasn't shouting at anyone in particular, he wasn't particularly close to anyone or anything, and no one was injured and nothing was really damaged.
The charge almost certainly would not have held up to any kind of scrutiny in this particular case.
The local cops outright said that they probably wouldn't even have arrested him at all if he'd burned a towel instead of a flag.
It was the flag that had people worked up.
But the First Amendment right to burn a flag is well-trod legal territory.
He ultimately pled down to a misdemeanor disorderly conduct charge So the court hasn't really ever had to deal with this burning object law.
Until now. You see, seven years ago, hundreds of torch-bearing white supremacists marched through the grounds of the University of Virginia.
They'd come to Charlottesville from across the country, taking Friday morning flights or taking turns at the wheel for cross-country drives and rented vans with guys they met on message boards, arriving early before the big event the next day.
They gathered in a field near the tennis courts and lined up two by two, torches in hand.
Men with walkie-talkies clipped to their belts, some with wired earpieces, barked orders, Elliot Klein, an ambitious young white nationalist organizer calling himself Eli Mosley, after 20th century British fascist Oswald Mosley, shouted at the crowd as they formed into a line.
So we're going around right through, and anyone who we pick for security, let us know if we can do it, all right?
We're picking big guys, no females!
Klein was selecting the biggest marchers to lay down their torches.
They might need their hands free.
The march wound its way through the university grounds, up the lawn, and then up the steps of the University of Virginia's iconic rotunda.
On the other side of the rotunda, gathered near a statue of Thomas Jefferson, a small group of anti-racist activists waited.
In her testimony during a later civil trial, one of the women who was terrorized that night said, When we heard the roaring of the approaching crowd, we just linked arms and held hands and started to sing.
She said at first it sounded like thunder, like the earth was growling.
As the sound grew closer, but before she could see the light of the torches,
she began to make out the chants.
Hundreds of voices raised in unison, shouting blood and soil.
Testifying about that night years later, she said she still hears it in her nightmares sometimes.
And by the time that small group of mostly students realized the magnitude and ferocity of the approaching mob, it was too late.
They were surrounded at the base of the statue by hundreds of torch-wielding white supremacists.
For just a few minutes.
Minutes that those trapped at the base of the statue said they believed might be their last, as they were doused in lighter fluid, maced, kicked, and punched.
There was a melee. After the crowd dispersed that night, and after the deadly rally the next morning, those men went home.
Some started businesses.
Some joined the military.
Others got kicked out of the military.
And some did both.
Some died of heart attacks and drug overdoses and self-inflicted gunshot wounds.
They beat their wives and choked their girlfriends, went to grad school, went to prison, trafficked drugs, started families, got divorced, ran for office, tried to overturn a presidential election, left the movement, tried to lead the movement, or just tried to disappear.
There are as many stories as there were flames in the night, when their voices joined as one shouting, Jews will not replace us.
And then dousing the flames, going their separate ways, back to the communities they came from.
Last year, the Albemarle County Prosecutor's Office decided to put this law to the test.
This mob had burned objects.
They had intimidated people with them.
If this law was meant to punish anyone for anything, it was meant for men like this with their flaming torches.
And if you're listening to this the day it came out, the odds are pretty good that I'm sitting in a little county courtroom with one of them right now.
Weird Little Guys is a production of Cool Zone Media.
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