FREE SPEECH OR HATE SPEECH? COURT WEIGHS CROSS BURNING

WASHINGTON, May 28 - The Supreme Court agreed today to decide the
constitutionality of a 50-year-old Virginia law that prohibits burning a
cross "with the intent of intimidating any person or group of persons."

The case is an appeal by the state from a decision of the Virginia Supreme
Court, which held in a 4-to-3 ruling last November that burning a cross, no
less than burning an American flag, was symbolic speech protected by the
First Amendment.

The state court decision grew out of two prosecutions in 1998, one of two
white men who burned a cross in the yard of a black neighbor in Virginia
Beach, and one of a Ku Klux Klan leader in rural Carroll County, who
presided over a rally and the burning of a 30-foot cross that was visible
for three-quarters of a mile along a state highway.

In hearing the state's appeal, the justices will revisit a subject they
last confronted 10 years ago, when the court overturned a cross-burning
ordinance in St. Paul, in a 5-to-4 decision that fell well short of
resolving a societywide debate over the relationship between free speech
and hate speech.

Thirteen states and the District of Columbia have criminal prohibitions
against cross burning, and the state and lower federal courts have
continued to issue conflicting rulings since the Supreme Court's 1992
decision in R.A.V. v. City of St. Paul.

The attorneys general of Arizona, California, Georgia, Kansas,
Massachusetts, Missouri, Oklahoma, Utah and Washington all signed a brief
urging the justices to hear Virginia's appeal. "Cross burning is an
especially virulent, even unique, form of intimidation in American society"
that states should be able to prohibit, the brief said.

One reason for the continuing confusion is a disagreement among judges and
legal scholars over how to interpret the Supreme Court's last decision. The
St. Paul ordinance that the court invalidated made it a crime to place a
symbol, including a burning cross, "which one knows or has reasonable
grounds to know arouses anger, alarm or resentment in others on the basis
of race, color, creed, religion or gender."

According to the court's majority opinion, written by Justice Antonin
Scalia, this description of the prohibited conduct amounted to
"content-based discrimination" because it ruled symbolic speech in or out
depending on the groups that the speech targeted.

The Virginia law, which was enacted in response to highly publicized Ku
Klux Klan cross burnings in the late 1940's and early 1950's, does not
refer to any particular group. The law provides that "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 place."

In finding the law unconstitutional, the Virginia Supreme Court's majority
said that despite the lack of reference to any specific target, the law was
nonetheless "analytically indistinguishable" from the St. Paul ordinance.
The Virginia law was in its own way just as selective, the state court
said, because it proscribed not all intimidating expression but
"selectively chooses only cross burning because of its distinctive message."

Virginia's attorney general, Jerry W. Kilgore, said in the state's appeal,
Virginia v. Black, No. 01-1107, that the law's sole focus on cross burning
was justified by the sense of threat associated with the practice. Even a
"white, middle-class Protestant waking up at night to find a burning cross"
outside his home would feel more threatened than if he found "say, a
burning circle or square," Mr. Kilgore's brief said, adding: "In the latter
case, he may call the fire department. In the former, he will probably call
the police."

The three defendants, Barry E. Black, Richard J. Elliott and Jonathan
O'Mara, are represented by a well-known First Amendment scholar, Rodney A.
Smolla of the T.C. Williams School of Law at the University of Richmond,
and by the American Civil Liberties Union of Virginia and private lawyers.
Urging the justices to reject the appeal, they said the Virginia Supreme
Court "conscientiously applied core First Amendment principles in
unpalatable circumstances."

There were these other developments at the court today:

Effective Counsel

Voting 8 to 1, the court overturned a federal appeals court's ruling that
set aside the death sentence of a Tennessee man convicted of a double
murder. The United States Court of Appeals for the Sixth Circuit, in
Cincinnati, had granted Gary B. Cone's petition for a writ of habeas corpus
on the ground that his lawyer's handling of the sentencing hearing was so
deficient as to have violated the Sixth Amendment right to the effective
assistance of counsel.

The lawyer, in whom mental illness was diagnosed and who later committed
suicide, failed to present mitigating evidence to the jury and did not make
a closing argument.

Writing for the court today, Chief Justice William H. Rehnquist said that
under the circumstances, forgoing a closing argument could be seen as "a
tactical decision about which competent lawyers might disagree" because it
deprived the state's highly effective lead prosecutor of the chance to make
a rebuttal argument in the moments before the jury retired for its
deliberations.

Consequently, Chief Justice Rehnquist said, it was not unreasonable for
Tennessee's appellate court to find no constitutional violation in the
lawyer's performance.

The decision, Bell v. Cone, No. 01-400, was the latest of the Supreme
Court's efforts to apply a 1996 federal law, Anti-Terrorism and Effective
Death Penalty Act, which significantly circumscribed the jurisdiction of
federal courts to review state court decisions through habeas corpus petitions.

Under the law, federal courts may not grant petitions unless the state
court proceedings "resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law" as defined
by the Supreme Court's precedents.

The dispute in this case centered on which of two competing Supreme Court
precedents on the effective assistance of counsel, issued on the same day
in 1984, properly applied to the circumstances of Mr. Cone's sentencing.
The Sixth Circuit applied one precedent, United States v. Cronic, which is
favorable to defendants and creates a presumption that a lawyer who
"entirely fails to subject the prosecution's case to meaningful adversarial
testing" has been ineffective. In a dissenting opinion today, Justice John
Paul Stevens argued that the appeals court had properly applied the Cronic
precedent to rule in Mr. Cone's favor.

But the majority said the Tennessee appeals court had been correct to apply
the other precedent, Strickland v. Washington, which is much less favorable
to defendants and requires proof not only that a lawyer's performance "fell
below an objective standard of reasonableness" but also that the outcome
would otherwise have been different.

While considering the Cone case, the justices have deferred action in a
death penalty case from Texas that raises a similar analytical issue. In
this case, Cockrell v. Burdine, No. 01-495, the United States Court of
Appeals for the Fifth Circuit overturned the death sentence for a man,
Calvin J. Burdine, whose lawyer slept through parts of his trial. The Fifth
Circuit, in New Orleans, held that ineffectiveness should be presumed under
the Cronic precedent. The justices are likely to act shortly on the appeal
filed by the Texas attorney general, John Cornyn.

Conspiracy Law

The court accepted an appeal from the federal government and agreed to
decide an important question of the law of criminal conspiracies: whether a
conspiracy should be deemed to have ended when the government frustrates
its objective. As in this case, United States v. Recio, No. 01-1184, the
question typically arises when the government has intercepted a shipment of
drugs and has arrested the courier, unbeknown to the other members of the
conspiracy, who continue with their activities even though they can no
longer accomplish their goal.

The United States Court of Appeals for the Ninth Circuit, applying a
doctrine it developed in the late 1990's that a conspiracy must be deemed
to have terminated when its objectives have become impossible, overturned a
drug conspiracy conviction of two men who arrived at an Idaho shopping mall
to claim a drug shipment that the government had already intercepted.

In its Supreme Court appeal, the government argued that the Ninth Circuit's
approach, with which other appeals courts disagree, would discourage
"legitimate law enforcement methods that can be of vital importance not
only in drug cases, but also in violent crime, terrorism and other contexts
in which prosecution of the conspirators and frustration of their goals are
both crucial objectives."

Linda Greenhouse answers readers' questions on Supreme Court rules and
procedure in a column available only on NYTimes.com. E-mail Ms. Greenhouse
a question at scotuswb@nytimes.com. Please include your name, address and
daytime telephone number; upon request names may be withheld.