October 10, 2024 • 46 mins
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
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Col Zone Media, Welcome back to the second half of
the story of Barry Black, the Pennsylvania Clansman. Barry Black's
main claim to fame as being the black in Commonwealth
of Virginia v. Black, the two thousand and three Supreme
(00:21):
Court case that found Virginia's crossburning 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 twenty seventeen, and I found a
(00:42):
lot more than I bargained for. I don't know what
I expected, but last week's story of a small town
war and a rural gay bar complete with side characters
like a notorious federal informant who worked for Lynton LaRouche
and a street preacher who was a central figure in
the Obama Birtherism conspiracy, definitely surprised me. This week, though,
(01:03):
we'll actually get to Barry's infamous cross burning and the Black,
a CLU lawyer who fought for the clansman's rights.
Speaker 2 (01:11):
That victory. What worldwide I said case presence, I said
case law, and we proved that the law does work.
Yet I can light across anywhere in the United States
of America that I want to light it.
Speaker 1 (01:28):
Berry 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. This is one of the
little guys. When we left off last week, Barry Black
(02:02):
and his Keystone Knights had gotten into a little hot
water at their white bride picnic. In July of nineteen
ninety eight, Barry held a clan picnic on a farm
owned by Don and Lisa Penrod in Somerset County, Pennsylvania,
when Berry held a clan rally at Kasanova Lounge, the
county's only gay bar the year prior. The Penrod's farm
was the pre rally staging area and the site of
(02:23):
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 clan. 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 Berry's leadership, and
(02:46):
on July twenty fifth, nineteen ninety eight, Don and Lisa
Penrod were two of the ten clan members standing at
the fence line on the Penrod farm demanding answers from
a man in their neighbour's tree. That man turned out
to be a state trooper, and Don Penne was one
of four attendees at the clan picnic who was arrested
for threatening the trooper at gunpoint. Barry himself posted Don
(03:07):
Penrod's ten thousand dollars bond. The week after the picnic,
Cambria County District Attorney David Tulowitski filed a petition with
the court to have Berry Black removed from the office
of Constable, an elected law enforcement position he'd won by
a single rite in vote the year prior history was
repeating itself. Barry was elected constable of Johnstown's twenty first
(03:29):
ward in nineteen ninety one, 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. Barry appealed that decision
and fought it all the way to the Pennsylvania Supreme Court,
holding clan rallies at court houses and in small towns
(03:50):
throughout the year and a half long appeals process. The
state's highest court told Barry in nineteen ninety three 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
(04:12):
was punishing him for his clan rally and for the
complaint he'd filed against the state troopers who arrested his
friends at the picnic in mid August of nineteen ninety eight.
The issue of whether the Clansmen 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
(04:33):
him to serve Warrens as sparingly as possible. In the meantime,
Barry's lawyer shrugged this off, telling the local paper. I
think he's pretty well preoccupied with his grand wizardry in
the clan, and that's true. He was keeping busy, And
it was in August nineteen ninety eight that Barry Black
(04:55):
took a road trip. This wasn't Barry's first out of
state clan field trip. Six people were arrested when the
crowd got out of control during Barry's opening prayers at
a clan rally in Millville, New Jersey, in nineteen ninety.
When Barry head lined across burning in Maryland in nineteen
ninety one, the Washington Post printed the slurs that came
(05:16):
out of his mouth. When clan leaders from six states
converged in Ohio in nineteen ninety five, Barry told the
Cincinnati Inquirer that it was like a family reunion and
lamented that no one ever gives the clan credit for
all the good things we do. When clansmen in South
Carolina came under federal investigation for burning down black churches,
(05:38):
Barry was there at a cross burning in Lexington in
nineteen ninety six, pledging the support of the Keystone Nights
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 clan event.
(06:01):
This trip to Virginia should have been like any of
the others, show up, make a scene, light across, 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 crossburning supplies and made the
six hour drive from Johnstown, Pennsylvania to Hillsville, Virginia, a
(06:25):
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 two thousand and five for Duke University
School of Law's Voices of American Law Project.
Speaker 2 (06:43):
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 to them
and how we want them to become pillars in their community.
Speaker 1 (06:58):
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's Solicitor General,
William Hurd relaying that statement to the Supreme Court.
Speaker 3 (07:19):
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.
Speaker 1 (07:35):
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 twelve
foot cross set ablaze in a peanut field in Suffolk, Virginia,
in nineteen forty eight. Local agricultural union workers denounced it
(07:59):
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
(08:21):
kind of childish active 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
(08:43):
moving into white neighborhoods, from getting elected to office, from
gaining civil rights, and from feeling safe in their homes.
In late nineteen forty nine, 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
Wade's wearing open South Carolina's previously whites only primaries to
(09:05):
black voters, his home was targeted repeatedly with crosses burning
on his front lawn in nineteen fifty. But the same
papers that ran those wire stories from cities and other
states wrote their own local coverage of crossburnings closer to home,
with a very different tone. When a cross burned in
Nashville or Charleston, it's safe to say that those cities
(09:27):
have racial unrest. Those cities have the clan. In the
summer of nineteen fifty, several black residents of Colonial Beach, Virginia,
found 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
(09:48):
their attorney went to the beach to see if that
was true, five hundred white men attacked the fifteen black beachgoers.
Later that week, crosses burned all down the beach. Another
cross was erected and burned outside of the Black church,
accompanied by rifle fire, and the letters k k K
(10:10):
were scrawled on sidewalks all over black neighborhoods. The town
council took no official notice of the crossburnings and said
they not only had no obligation to anticipate on the
rest of 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 nineteen fifty. Just look at any newspaper anywhere
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in the state. When a woman had found a cross
burning on her front porch in Noffolk in September of
nineteen fifty. The police told then Offolk Ledger Dispatch that
it was only a small cross, just two feet high,
and quote the clan usually puts on a bigger show.
There had been eight cross burnings in neighboring Nansaman County
in just the last few months, but this was probably
(10:56):
just mischievous kids. The Bristol, Virginia Time in the Sea
and reported in October of nineteen fifty that the twelve
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
(11:19):
this was obviously just a prank. That same newspaper had
been running coverage of a clan march in South Carolina
just six weeks earlier. After letting up a cross in
Myrtle Beach, the clan 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
(11:40):
never had a chance to fire it before the mob
beat him and shoved him into the trunk of a car.
The clansmen 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 to the hospital where he died, he was
(12:01):
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
clan was thriving again across the South. In January of
(12:22):
nineteen fifty one, the state of Georgia outlawed crossburning in
an effort to stem the tide of this white robed violence.
In February of nineteen fifty one, crosses were lit outside
the homes and businesses of black residence in Guchland and
in Reiko 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.
(12:44):
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 crossburnings. By June of nineteen
fifty one, Florida, Alabama, and South Carolina had joined Georgia
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in banning crossburning 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 clan activity everywhere
else said the six foot cross doused and gasoline in
(13:27):
the middle of Route one in Stafford was just a prank.
It was just kids messing with traffic. In August of
that year, a widow and Appomatox 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 late at its base. A postcard from the clan
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was left to 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
(14:10):
and the nineteen fifties. 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 the law. No one could see the racial terror
(14:38):
we already had here at home. It was always kids
or vandals or pranksters. But in nineteen fifty two, the
Virginia State legislature was finally ready to act. Responding to
reports that Florida Clan leader Bill Hendrix was planning a
rally in Richmond and South Carolina Clan leader Thomas Hamilton
was planning to start chapters in more than a dozen
(14:59):
towns in Virginia, a bill was introduced to outlaw the
wearing of masks in public. At the urging of religious groups,
a ban on crossburning was added. The threat of these
out of town clansmen pushed the bill through without significant pushback,
and it was signed by Governor John Battle in April
nineteen fifty two. But changing the law didn't change anyone's attitudes.
(15:24):
Throughout the nineteen fifties, most of the crossburning stories I
could find were dismissed as pranks, and if I'm being
entirely honest, some of them might have been. There were
several crossburnings in Newport News that teenage boys eventually confessed to,
with one cross being placed on the law of a
state delegate by mistake. The boys said they were pranking
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their high school teachers, and I did find at least
three stories of high school teachers and 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's the fifties. Had
(16:07):
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 seventy
years later what prompted those nighttime visits from their students.
(16:28):
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 in underscores how
widespread and commonly understood this was as a symbol. You
didn't have to be a clansman to know what it meant.
(16:49):
You didn't have to mean it yourself to know how
it would be read. In nineteen sixty five, George Lincoln Rockwell,
the founder of the American Nazi Party, ran for governor
here in Virginia. He didn't win, obviously, he got nearly
six thousand votes, though one percent of the total caste.
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The new governor was Mills Godwin, once a staunch segregationist
who had distanced himself from the political machine of Harry Bird.
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 nineteen sixty six, Governor Mills Godwin announced
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a one thousand dollar reward for information leading to the
arrest and conviction of cross burners. In response, the Klan
burned a cross outside the Governor's mansion.
Speaker 4 (17:49):
The clan dead rear its head in certain areas of
Virginia in that period, even to the extent that they
burned a cross on the sidewalk right by I'm the
Governor's mansion. And we made some arrest and there were
some sentences meeted out to those that were convicted, and
(18:10):
it had a real deterring effect.
Speaker 1 (18:15):
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 Clan. On New Year's Day nineteen
sixty seven, Wilson Ralph Price and his wife, Nanny Jane
Price were arrested for burning across on a sidewalk in Richmond.
All three of their young children were waiting for them
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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 Clan literature. Barry Black wasn't the
first clansman 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.
(19:02):
The Prices 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 bannon crossburning on public property
as well. In nineteen sixty eight, the state Supreme Court
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seemed to believe that the purpose of banning crossburning was
to protect private property. The law didn't protect people, it
protected their laws, and with this amendment, the legislature clarified
their intention. The law isn't about property or truspass or
the possibility of danger from the flames themselves. It is
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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 the unlaw full burning of a cross shall
be primaphacia evidence of the intention to intimidate a person
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or group of persons. This language was likely intended to
get around the defense of whill it was just a prank.
Burning across 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
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law shifts the burden of proof to the party trying
to prove otherwise. So when Bury lit that cross in
Carroll County on August twenty second, nineteen ninety eight, 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
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be burned across on the property of another, a highway
or other public space. Any person who shall violate this
section shall be guilty of a classic spelony. Any such
burning of a cross shall be primophacia evidence of an
intent to intimidate a person or group of persons, And
Barry had done that. When the sheriff's lieutenant arrived, he
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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
(21:32):
conversation about civil rights, the ACLU stepped up without even
having to be asked.
Speaker 2 (21:42):
Well, 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 says yeah. I said, are you going to fight
for me? Are you going to give me one hundred
and fifty one percent? He says, I'm not going to
(22:02):
change your views. He says, in my views about you
aren't the greatest in the world either. He says, but
I will give you one hundred and fifty one percent.
You have my word on that, sir. He says, I'll
defend you to the end. And I says, good enough.
Speaker 1 (22:18):
The Virginia ACLU was no stranger to this strange bedfellow's
type of attorney client relationship. Just a few years earlier,
they'd taken on the case of Buddy Hernandez, a clansman
who was arrested in nineteen eighty nine for handing out
clan literature while wearing full clan regalia, including a hood
that covered his face. Like the crossburning law, Virginia's anti
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masking Statute was adopted in nineteen fifty two with the
explicit intention of curtailing clan activity. The anti masking statute
was upheld by the Virginia Supreme Court, and the actual
Supreme Court declined to hear Hernandez's case. In nineteen ninety four,
ACLU attorney David Baugh went to Batford Barry, and he
(23:00):
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
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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 twenty seven hundred 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
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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 nineteen ninety eight were hectic for Barry.
(24:09):
Now he was fighting his own case down in Virginia,
but the four clansmen arrested at the White Bride picnic
were still fighting their cases at home in Pennsylvania. A
few weeks after this cross burning, Barry was kicked out
of the court room 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
(24:32):
than ever his local prosecutor, state troopers, and the courts
in Virginia were just waiting for Barry to make a mistake.
In March of nineteen ninety nine, a judge in Virginia
ruled against emotion 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,
(24:54):
railing against the corrupt judicial system trying to take away
his job as constable. He told reporter 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 clan activities. That's not really a great
argument if you ask me, you know, just let me
(25:14):
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
(25:37):
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
nineteen ninety nine, that something the bar's patrons had long
suspected was proved to be true. The bigots had an
inside man. Ron Immler, the police chief and neighboring Connamaw Township,
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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's supervisors in a letter that Ron
(26:21):
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 Immler 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.
(26:43):
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 charge. So it's not always as literal as that
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dead clansman 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 nineteen
ninety nine, wore On Don Penrod and two other clansmen
(27:25):
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,
(27:47):
Barry Junior, 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 nineteen
ninety nine, an all white jury in Carroll County liberated
for just twenty five minutes before finding Berry Black guilty
of cross burning under that Virginia statute. They had the
(28:09):
option of giving him up to five years behind bars
for this classics felony, but the jury decided on just
a twenty five hundred dollars fine.
Speaker 2 (28:18):
I can't just say, hey, no, here's twenty five hundred dollars,
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 United States of America
still means something.
Speaker 1 (28:38):
His attorney, David Ball, 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 two thousand, the
Virginia Court of Appeals upheld Berry's conviction, but they kept fighting.
A year later, the Virginia Supreme Court agreed with Barry
(29:02):
Virginia's crossburning 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 nineteen
ninety two Supreme Court case rav versus City of Saint Paul.
The issue here arises in that nineteen sixty eight amendment
(29:24):
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 fascia evidence of intent language was
added in nineteen seventy five, but it was nineteen sixty eight.
(29:47):
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 facial requirement
was inserted when the law was amended in nineteen sixty eight,
after the State Supreme Court overturned Wilson Price's conviction. I
think the origin of this error is that the code
(30:08):
section does show a revision was made in nineteen seventy five,
but if you pull the full text of the nineteen
seventy five session, it's because everything in Title eighteen was
technically amended in nineteen seventy five, because they rearranged and
recodified the entire Criminal Code. So the language of the
statute stayed the same between nineteen sixty eight and nineteen
(30:31):
seventy five. 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 twenty four years ago.
I guess sorry, But anyway, this decision rested on that language.
The law couldn't be content neutral if this baked in
(30:52):
assumption of intent rested on the historical context of crossburning.
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
(31:13):
on the history of the clan. But both of those
things can't be true at the same time. And because
Barry wasn't the only person arrested for burning across in
Virginia in nineteen ninety eight, this appeal to the state
Supreme Court was actually three cases rolled up into one,
so the court wasn't just reversing Barry's conviction in this opinion,
(31:34):
They were also throwing out convictions against Richard Elliott and
Jonathan O'Mara, two men had been convicted for burning across
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.
(31:56):
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.
(32:17):
It's not even clear if they knew she was there.
For Elliot and O'Mara, though their cases did not rely
on prima facia 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
(32:39):
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 feed Black was that
the Supreme Court ruled Virginia's crossburning law was unconstitutional, and
that is what happened. But it's not entirely straightforward. Even
(33:02):
the men's own lawyer, Rodney Smolla, wasn't sure what to
make of the decision the day he read it.
Speaker 2 (33:09):
I'm reading, and I read the first sentence, and I think, well, no,
I wantcons I says, no, I lost, And.
Speaker 3 (33:15):
Then I get through the first set of opinions by
Justice O'Connor, and I wasn't sure.
Speaker 1 (33:21):
The decision announced by Justice Sandrada O'Connor was kind of
a mixed bag. The court ruled it. Yes, the Virginia
Supreme Court was right about the prema facia element of
the law, making it unconstitutional.
Speaker 5 (33:35):
The act of burning across 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 prim of face sheet provision blurs the line between
these meanings. The First Amendment does not permit such a shortcut.
(33:58):
Thus Black's convict cannot stand and the judgment as to
him is affirmed.
Speaker 1 (34:06):
But they were also clear in their opinion that Virginia
can enforce a law banning crossburning 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.
Speaker 5 (34:28):
We hold that a state consistent with the First Amendment
may ban crossburning carried out with the intent to intimidate.
While a burning cross does not always convey a message
of intimidation, often the crossburner intends that the recipients of
the message fear for their lives, and when a cross
(34:51):
burning is used to intimidate, few, if any, messages are
more powerful.
Speaker 1 (34:59):
Very one. 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,
(35:20):
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 crossburnings, more anything.
(35:42):
But he didn't really. He was fifty five 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
(36:02):
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 two thousand
and two, but they stopped filing annual paperwork in twenty thirteen.
The Invisible Empire International Keystone Knights of the Ku Klux Klan,
(36:25):
Incorporated was registered in Indiana by Barry himself in nineteen
ninety seven. The South Carolina based nonprofit Barry incorporated in
nineteen ninety nine technically still exists on paper, despite the
deaths of both Barry and the local clansmen. He ran
it with a Virginia chapter of the Keystone Knights Incorporated
(36:45):
a few months after the Supreme Court victory in two
thousand and three, but there's no record I can find
of the chapter getting up to anything, and all record
of the entity disappears entirely after two thousand and eight.
Stephen Dnkle, the one time leader of a Keystone Night
Knights chapter in Alabama, was convicted of a federal hate
crime in twenty fourteen for a crossburning. After his release,
(37:07):
he was convicted again for a federal firearms related offense,
and in twenty seventeen he was sentenced to ten years
for sexually assaulting an incapacitated woman. A man named Willis
Fraser still files annual paperwork with the IRS for the
Indiana based entity using the Keystone Knights name. In two
thousand and four, Fraser tried to sue the State of
(37:28):
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 clan's right to
(37:50):
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
hid Willis Fraser's name on some of that paperwork, tying
it all the way back to Barry. The Keystone Knights
are more or less dead, and Barry Black is entirely dead.
(38:11):
He passed away in twenty eighteen. 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 clan rallies, his right to
serve as constable, his right to lead armed mobs that
(38:33):
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 Berry Black. While berry Black's
(39:05):
crossburning 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 two thousand and two.
The language about prima fascia evidence of intent was gone,
(39:27):
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
(39:50):
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 twenty twenty, a man named James
Brown burned across outside the home of a black teenager
who'd been involved in organizing Black Lives Matter protests in Marion, Virginia.
(40:11):
He served eighteen months for criminal interference with federally protected rights.
Darryl Orange was convicted in twenty ten 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 crossburnings go unsolved or unprosecuted,
(40:32):
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 fourth of
July and twenty nineteen, a man in Williamsburg pulled up
in front of a wal Mart, got out of his car,
(40:54):
put an American flag on the ground, and set it
on fire. He didn't threat anyone, He just lit it up,
shouted a bit about how he hated America, and drove off.
Wasn't shouting in anyone in particular. He wasn't particularly close
to anyone or anything, and no one was injured and
(41:15):
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
(41:37):
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,
(41:57):
hundreds of torch bearing White supremests 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
(42:19):
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. Elliott Kleine, an ambitious
young white nationalist organizer calling himself Eli Moseley after twentieth
century British fascist Oswald Moseley, shouted at the crowd as
(42:41):
they formed into a line.
Speaker 6 (42:45):
So we're going round right through, and anyone who we
picked for the journey, let us know if we can do.
Speaker 1 (42:49):
It all right, we're clicking, big guys, no female. Klein
was selecting the biggest marchers to lay down their torches,
they might need her 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.
(43:11):
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.
(43:35):
She said, at first it sounded like thunder, like the
earth was growling. As the sound grew closer, but before
(44:05):
she could see the light of the torches, she began
to make out the chance hundreds of voices raised in unison,
shouting blood and soil. Testifying about that night years later,
she said she still hears it in her nightmare sometimes.
And by the time that small group of mostly students
(44:26):
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.
(44:49):
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.
(45:10):
Some died of heart attacks and drug overdoses and self
inflicted gunshot wounds. They beat their wives and choked their
girl friends, 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,
(45:32):
or just tried to disappear. There are as many stories
as there were flames in the night when their voices
joined us, 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 Aldmorle County
(45:55):
Prosecutor's Office decided to put this law to the test.
This mom 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,
(46:18):
the odds are pretty good that I'm sitting in a
little county courtroom with one of them right now.
Speaker 6 (46:28):
Weird Little Guys a production of Cool Zone Media. Or
more from coal Zone Media. Visit our website Polzonemedia dot
com or check us out on the iHeartRadio app or
wherever you get your podcasts.
Col Zone Media, Welcome back to the second half of
the story of Barry Black, the Pennsylvania Clansman. Barry Black's
main claim to fame as being the black in Commonwealth
of Virginia v. Black, the two thousand and three Supreme
(00:21):
Court case that found Virginia's crossburning 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 twenty seventeen, and I found a
(00:42):
lot more than I bargained for. I don't know what
I expected, but last week's story of a small town
war and a rural gay bar complete with side characters
like a notorious federal informant who worked for Lynton LaRouche
and a street preacher who was a central figure in
the Obama Birtherism conspiracy, definitely surprised me. This week, though,
(01:03):
we'll actually get to Barry's infamous cross burning and the Black,
a CLU lawyer who fought for the clansman's rights.
Speaker 2 (01:11):
That victory. What worldwide I said case presence, I said
case law, and we proved that the law does work.
Yet I can light across anywhere in the United States
of America that I want to light it.
Speaker 1 (01:28):
Berry 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. This is one of the
little guys. When we left off last week, Barry Black
(02:02):
and his Keystone Knights had gotten into a little hot
water at their white bride picnic. In July of nineteen
ninety eight, Barry held a clan picnic on a farm
owned by Don and Lisa Penrod in Somerset County, Pennsylvania,
when Berry held a clan rally at Kasanova Lounge, the
county's only gay bar the year prior. The Penrod's farm
was the pre rally staging area and the site of
(02:23):
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 clan. 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 Berry's leadership, and
(02:46):
on July twenty fifth, nineteen ninety eight, Don and Lisa
Penrod were two of the ten clan members standing at
the fence line on the Penrod farm demanding answers from
a man in their neighbour's tree. That man turned out
to be a state trooper, and Don Penne was one
of four attendees at the clan picnic who was arrested
for threatening the trooper at gunpoint. Barry himself posted Don
(03:07):
Penrod's ten thousand dollars bond. The week after the picnic,
Cambria County District Attorney David Tulowitski filed a petition with
the court to have Berry Black removed from the office
of Constable, an elected law enforcement position he'd won by
a single rite in vote the year prior history was
repeating itself. Barry was elected constable of Johnstown's twenty first
(03:29):
ward in nineteen ninety one, 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. Barry appealed that decision
and fought it all the way to the Pennsylvania Supreme Court,
holding clan rallies at court houses and in small towns
(03:50):
throughout the year and a half long appeals process. The
state's highest court told Barry in nineteen ninety three 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
(04:12):
was punishing him for his clan rally and for the
complaint he'd filed against the state troopers who arrested his
friends at the picnic in mid August of nineteen ninety eight.
The issue of whether the Clansmen 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
(04:33):
him to serve Warrens as sparingly as possible. In the meantime,
Barry's lawyer shrugged this off, telling the local paper. I
think he's pretty well preoccupied with his grand wizardry in
the clan, and that's true. He was keeping busy, And
it was in August nineteen ninety eight that Barry Black
(04:55):
took a road trip. This wasn't Barry's first out of
state clan field trip. Six people were arrested when the
crowd got out of control during Barry's opening prayers at
a clan rally in Millville, New Jersey, in nineteen ninety.
When Barry head lined across burning in Maryland in nineteen
ninety one, the Washington Post printed the slurs that came
(05:16):
out of his mouth. When clan leaders from six states
converged in Ohio in nineteen ninety five, Barry told the
Cincinnati Inquirer that it was like a family reunion and
lamented that no one ever gives the clan credit for
all the good things we do. When clansmen in South
Carolina came under federal investigation for burning down black churches,
(05:38):
Barry was there at a cross burning in Lexington in
nineteen ninety six, pledging the support of the Keystone Nights
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 clan event.
(06:01):
This trip to Virginia should have been like any of
the others, show up, make a scene, light across, 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 crossburning supplies and made the
six hour drive from Johnstown, Pennsylvania to Hillsville, Virginia, a
(06:25):
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 two thousand and five for Duke University
School of Law's Voices of American Law Project.
Speaker 2 (06:43):
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 to them
and how we want them to become pillars in their community.
Speaker 1 (06:58):
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's Solicitor General,
William Hurd relaying that statement to the Supreme Court.
Speaker 3 (07:19):
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.
Speaker 1 (07:35):
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 twelve
foot cross set ablaze in a peanut field in Suffolk, Virginia,
in nineteen forty eight. Local agricultural union workers denounced it
(07:59):
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
(08:21):
kind of childish active 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
(08:43):
moving into white neighborhoods, from getting elected to office, from
gaining civil rights, and from feeling safe in their homes.
In late nineteen forty nine, 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
Wade's wearing open South Carolina's previously whites only primaries to
(09:05):
black voters, his home was targeted repeatedly with crosses burning
on his front lawn in nineteen fifty. But the same
papers that ran those wire stories from cities and other
states wrote their own local coverage of crossburnings closer to home,
with a very different tone. When a cross burned in
Nashville or Charleston, it's safe to say that those cities
(09:27):
have racial unrest. Those cities have the clan. In the
summer of nineteen fifty, several black residents of Colonial Beach, Virginia,
found 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
(09:48):
their attorney went to the beach to see if that
was true, five hundred white men attacked the fifteen black beachgoers.
Later that week, crosses burned all down the beach. Another
cross was erected and burned outside of the Black church,
accompanied by rifle fire, and the letters k k K
(10:10):
were scrawled on sidewalks all over black neighborhoods. The town
council took no official notice of the crossburnings and said
they not only had no obligation to anticipate on the
rest of 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 nineteen fifty. Just look at any newspaper anywhere
(10:33):
in the state. When a woman had found a cross
burning on her front porch in Noffolk in September of
nineteen fifty. The police told then Offolk Ledger Dispatch that
it was only a small cross, just two feet high,
and quote the clan usually puts on a bigger show.
There had been eight cross burnings in neighboring Nansaman County
in just the last few months, but this was probably
(10:56):
just mischievous kids. The Bristol, Virginia Time in the Sea
and reported in October of nineteen fifty that the twelve
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
(11:19):
this was obviously just a prank. That same newspaper had
been running coverage of a clan march in South Carolina
just six weeks earlier. After letting up a cross in
Myrtle Beach, the clan 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
(11:40):
never had a chance to fire it before the mob
beat him and shoved him into the trunk of a car.
The clansmen 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 to the hospital where he died, he was
(12:01):
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
clan was thriving again across the South. In January of
(12:22):
nineteen fifty one, the state of Georgia outlawed crossburning in
an effort to stem the tide of this white robed violence.
In February of nineteen fifty one, crosses were lit outside
the homes and businesses of black residence in Guchland and
in Reiko 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.
(12:44):
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 crossburnings. By June of nineteen
fifty one, Florida, Alabama, and South Carolina had joined Georgia
(13:06):
in banning crossburning 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 clan activity everywhere
else said the six foot cross doused and gasoline in
(13:27):
the middle of Route one in Stafford was just a prank.
It was just kids messing with traffic. In August of
that year, a widow and Appomatox 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 late at its base. A postcard from the clan
(13:47):
was left to 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
(14:10):
and the nineteen fifties. 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 the law. No one could see the racial terror
(14:38):
we already had here at home. It was always kids
or vandals or pranksters. But in nineteen fifty two, the
Virginia State legislature was finally ready to act. Responding to
reports that Florida Clan leader Bill Hendrix was planning a
rally in Richmond and South Carolina Clan leader Thomas Hamilton
was planning to start chapters in more than a dozen
(14:59):
towns in Virginia, a bill was introduced to outlaw the
wearing of masks in public. At the urging of religious groups,
a ban on crossburning was added. The threat of these
out of town clansmen pushed the bill through without significant pushback,
and it was signed by Governor John Battle in April
nineteen fifty two. But changing the law didn't change anyone's attitudes.
(15:24):
Throughout the nineteen fifties, most of the crossburning stories I
could find were dismissed as pranks, and if I'm being
entirely honest, some of them might have been. There were
several crossburnings in Newport News that teenage boys eventually confessed to,
with one cross being placed on the law of a
state delegate by mistake. The boys said they were pranking
(15:46):
their high school teachers, and I did find at least
three stories of high school teachers and 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's the fifties. Had
(16:07):
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 seventy
years later what prompted those nighttime visits from their students.
(16:28):
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 in underscores how
widespread and commonly understood this was as a symbol. You
didn't have to be a clansman to know what it meant.
(16:49):
You didn't have to mean it yourself to know how
it would be read. In nineteen sixty five, George Lincoln Rockwell,
the founder of the American Nazi Party, ran for governor
here in Virginia. He didn't win, obviously, he got nearly
six thousand votes, though one percent of the total caste.
(17:13):
The new governor was Mills Godwin, once a staunch segregationist
who had distanced himself from the political machine of Harry Bird.
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 nineteen sixty six, Governor Mills Godwin announced
(17:35):
a one thousand dollar reward for information leading to the
arrest and conviction of cross burners. In response, the Klan
burned a cross outside the Governor's mansion.
Speaker 4 (17:49):
The clan dead rear its head in certain areas of
Virginia in that period, even to the extent that they
burned a cross on the sidewalk right by I'm the
Governor's mansion. And we made some arrest and there were
some sentences meeted out to those that were convicted, and
(18:10):
it had a real deterring effect.
Speaker 1 (18:15):
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 Clan. On New Year's Day nineteen
sixty seven, Wilson Ralph Price and his wife, Nanny Jane
Price were arrested for burning across on a sidewalk in Richmond.
All three of their young children were waiting for them
(18:37):
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 Clan literature. Barry Black wasn't the
first clansman 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.
(19:02):
The Prices 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 bannon crossburning on public property
as well. In nineteen sixty eight, the state Supreme Court
(19:23):
seemed to believe that the purpose of banning crossburning was
to protect private property. The law didn't protect people, it
protected their laws, and with this amendment, the legislature clarified
their intention. The law isn't about property or truspass or
the possibility of danger from the flames themselves. It is
(19:43):
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 the unlaw full burning of a cross shall
be primaphacia evidence of the intention to intimidate a person
(20:05):
or group of persons. This language was likely intended to
get around the defense of whill it was just a prank.
Burning across 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
(20:28):
law shifts the burden of proof to the party trying
to prove otherwise. So when Bury lit that cross in
Carroll County on August twenty second, nineteen ninety eight, 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
(20:49):
be burned across on the property of another, a highway
or other public space. Any person who shall violate this
section shall be guilty of a classic spelony. Any such
burning of a cross shall be primophacia evidence of an
intent to intimidate a person or group of persons, And
Barry had done that. When the sheriff's lieutenant arrived, he
(21:11):
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
(21:32):
conversation about civil rights, the ACLU stepped up without even
having to be asked.
Speaker 2 (21:42):
Well, 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 says yeah. I said, are you going to fight
for me? Are you going to give me one hundred
and fifty one percent? He says, I'm not going to
(22:02):
change your views. He says, in my views about you
aren't the greatest in the world either. He says, but
I will give you one hundred and fifty one percent.
You have my word on that, sir. He says, I'll
defend you to the end. And I says, good enough.
Speaker 1 (22:18):
The Virginia ACLU was no stranger to this strange bedfellow's
type of attorney client relationship. Just a few years earlier,
they'd taken on the case of Buddy Hernandez, a clansman
who was arrested in nineteen eighty nine for handing out
clan literature while wearing full clan regalia, including a hood
that covered his face. Like the crossburning law, Virginia's anti
(22:39):
masking Statute was adopted in nineteen fifty two with the
explicit intention of curtailing clan activity. The anti masking statute
was upheld by the Virginia Supreme Court, and the actual
Supreme Court declined to hear Hernandez's case. In nineteen ninety four,
ACLU attorney David Baugh went to Batford Barry, and he
(23:00):
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
(23:22):
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 twenty seven hundred 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
(23:46):
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 nineteen ninety eight were hectic for Barry.
(24:09):
Now he was fighting his own case down in Virginia,
but the four clansmen arrested at the White Bride picnic
were still fighting their cases at home in Pennsylvania. A
few weeks after this cross burning, Barry was kicked out
of the court room 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
(24:32):
than ever his local prosecutor, state troopers, and the courts
in Virginia were just waiting for Barry to make a mistake.
In March of nineteen ninety nine, a judge in Virginia
ruled against emotion 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,
(24:54):
railing against the corrupt judicial system trying to take away
his job as constable. He told reporter 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 clan activities. That's not really a great
argument if you ask me, you know, just let me
(25:14):
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
(25:37):
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
nineteen ninety nine, that something the bar's patrons had long
suspected was proved to be true. The bigots had an
inside man. Ron Immler, the police chief and neighboring Connamaw Township,
(26:00):
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's supervisors in a letter that Ron
(26:21):
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 Immler 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.
(26:43):
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 charge. So it's not always as literal as that
(27:04):
dead clansman 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 nineteen
ninety nine, wore On Don Penrod and two other clansmen
(27:25):
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,
(27:47):
Barry Junior, 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 nineteen
ninety nine, an all white jury in Carroll County liberated
for just twenty five minutes before finding Berry Black guilty
of cross burning under that Virginia statute. They had the
(28:09):
option of giving him up to five years behind bars
for this classics felony, but the jury decided on just
a twenty five hundred dollars fine.
Speaker 2 (28:18):
I can't just say, hey, no, here's twenty five hundred dollars,
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 United States of America
still means something.
Speaker 1 (28:38):
His attorney, David Ball, 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 two thousand, the
Virginia Court of Appeals upheld Berry's conviction, but they kept fighting.
A year later, the Virginia Supreme Court agreed with Barry
(29:02):
Virginia's crossburning 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 nineteen
ninety two Supreme Court case rav versus City of Saint Paul.
The issue here arises in that nineteen sixty eight amendment
(29:24):
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 fascia evidence of intent language was
added in nineteen seventy five, but it was nineteen sixty eight.
(29:47):
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 facial requirement
was inserted when the law was amended in nineteen sixty eight,
after the State Supreme Court overturned Wilson Price's conviction. I
think the origin of this error is that the code
(30:08):
section does show a revision was made in nineteen seventy five,
but if you pull the full text of the nineteen
seventy five session, it's because everything in Title eighteen was
technically amended in nineteen seventy five, because they rearranged and
recodified the entire Criminal Code. So the language of the
statute stayed the same between nineteen sixty eight and nineteen
(30:31):
seventy five. 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 twenty four years ago.
I guess sorry, But anyway, this decision rested on that language.
The law couldn't be content neutral if this baked in
(30:52):
assumption of intent rested on the historical context of crossburning.
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
(31:13):
on the history of the clan. But both of those
things can't be true at the same time. And because
Barry wasn't the only person arrested for burning across in
Virginia in nineteen ninety eight, this appeal to the state
Supreme Court was actually three cases rolled up into one,
so the court wasn't just reversing Barry's conviction in this opinion,
(31:34):
They were also throwing out convictions against Richard Elliott and
Jonathan O'Mara, two men had been convicted for burning across
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.
(31:56):
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.
(32:17):
It's not even clear if they knew she was there.
For Elliot and O'Mara, though their cases did not rely
on prima facia 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
(32:39):
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 feed Black was that
the Supreme Court ruled Virginia's crossburning law was unconstitutional, and
that is what happened. But it's not entirely straightforward. Even
(33:02):
the men's own lawyer, Rodney Smolla, wasn't sure what to
make of the decision the day he read it.
Speaker 2 (33:09):
I'm reading, and I read the first sentence, and I think, well, no,
I wantcons I says, no, I lost, And.
Speaker 3 (33:15):
Then I get through the first set of opinions by
Justice O'Connor, and I wasn't sure.
Speaker 1 (33:21):
The decision announced by Justice Sandrada O'Connor was kind of
a mixed bag. The court ruled it. Yes, the Virginia
Supreme Court was right about the prema facia element of
the law, making it unconstitutional.
Speaker 5 (33:35):
The act of burning across 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 prim of face sheet provision blurs the line between
these meanings. The First Amendment does not permit such a shortcut.
(33:58):
Thus Black's convict cannot stand and the judgment as to
him is affirmed.
Speaker 1 (34:06):
But they were also clear in their opinion that Virginia
can enforce a law banning crossburning 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.
Speaker 5 (34:28):
We hold that a state consistent with the First Amendment
may ban crossburning carried out with the intent to intimidate.
While a burning cross does not always convey a message
of intimidation, often the crossburner intends that the recipients of
the message fear for their lives, and when a cross
(34:51):
burning is used to intimidate, few, if any, messages are
more powerful.
Speaker 1 (34:59):
Very one. 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,
(35:20):
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 crossburnings, more anything.
(35:42):
But he didn't really. He was fifty five 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
(36:02):
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 two thousand
and two, but they stopped filing annual paperwork in twenty thirteen.
The Invisible Empire International Keystone Knights of the Ku Klux Klan,
(36:25):
Incorporated was registered in Indiana by Barry himself in nineteen
ninety seven. The South Carolina based nonprofit Barry incorporated in
nineteen ninety nine technically still exists on paper, despite the
deaths of both Barry and the local clansmen. He ran
it with a Virginia chapter of the Keystone Knights Incorporated
(36:45):
a few months after the Supreme Court victory in two
thousand and three, but there's no record I can find
of the chapter getting up to anything, and all record
of the entity disappears entirely after two thousand and eight.
Stephen Dnkle, the one time leader of a Keystone Night
Knights chapter in Alabama, was convicted of a federal hate
crime in twenty fourteen for a crossburning. After his release,
(37:07):
he was convicted again for a federal firearms related offense,
and in twenty seventeen he was sentenced to ten years
for sexually assaulting an incapacitated woman. A man named Willis
Fraser still files annual paperwork with the IRS for the
Indiana based entity using the Keystone Knights name. In two
thousand and four, Fraser tried to sue the State of
(37:28):
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 clan's right to
(37:50):
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
hid Willis Fraser's name on some of that paperwork, tying
it all the way back to Barry. The Keystone Knights
are more or less dead, and Barry Black is entirely dead.
(38:11):
He passed away in twenty eighteen. 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 clan rallies, his right to
serve as constable, his right to lead armed mobs that
(38:33):
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 Berry Black. While berry Black's
(39:05):
crossburning 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 two thousand and two.
The language about prima fascia evidence of intent was gone,
(39:27):
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
(39:50):
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 twenty twenty, a man named James
Brown burned across outside the home of a black teenager
who'd been involved in organizing Black Lives Matter protests in Marion, Virginia.
(40:11):
He served eighteen months for criminal interference with federally protected rights.
Darryl Orange was convicted in twenty ten 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 crossburnings go unsolved or unprosecuted,
(40:32):
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 fourth of
July and twenty nineteen, a man in Williamsburg pulled up
in front of a wal Mart, got out of his car,
(40:54):
put an American flag on the ground, and set it
on fire. He didn't threat anyone, He just lit it up,
shouted a bit about how he hated America, and drove off.
Wasn't shouting in anyone in particular. He wasn't particularly close
to anyone or anything, and no one was injured and
(41:15):
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
(41:37):
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,
(41:57):
hundreds of torch bearing White supremests 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
(42:19):
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. Elliott Kleine, an ambitious
young white nationalist organizer calling himself Eli Moseley after twentieth
century British fascist Oswald Moseley, shouted at the crowd as
(42:41):
they formed into a line.
Speaker 6 (42:45):
So we're going round right through, and anyone who we
picked for the journey, let us know if we can do.
Speaker 1 (42:49):
It all right, we're clicking, big guys, no female. Klein
was selecting the biggest marchers to lay down their torches,
they might need her 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.
(43:11):
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.
(43:35):
She said, at first it sounded like thunder, like the
earth was growling. As the sound grew closer, but before
(44:05):
she could see the light of the torches, she began
to make out the chance hundreds of voices raised in unison,
shouting blood and soil. Testifying about that night years later,
she said she still hears it in her nightmare sometimes.
And by the time that small group of mostly students
(44:26):
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.
(44:49):
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.
(45:10):
Some died of heart attacks and drug overdoses and self
inflicted gunshot wounds. They beat their wives and choked their
girl friends, 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,
(45:32):
or just tried to disappear. There are as many stories
as there were flames in the night when their voices
joined us, 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 Aldmorle County
(45:55):
Prosecutor's Office decided to put this law to the test.
This mom 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,
(46:18):
the odds are pretty good that I'm sitting in a
little county courtroom with one of them right now.
Speaker 6 (46:28):
Weird Little Guys a production of Cool Zone Media. Or
more from coal Zone Media. Visit our website Polzonemedia dot
com or check us out on the iHeartRadio app or
wherever you get your podcasts.
Host
Molly Conger
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