Speaker 1: Col Zone Media, Welcome back to the second half of
Speaker 1: the story of Barry Black, the Pennsylvania Clansman. Barry Black's
Speaker 1: main claim to fame as being the black in Commonwealth
Speaker 1: of Virginia v. Black, the two thousand and three Supreme
Speaker 1: Court case that found Virginia's crossburning statute unconstitutionally overbroad. I
Speaker 1: set out to learn a little more about that landmark
Speaker 1: decision and the life of the man who won it,
Speaker 1: because it comes up often in some cases going on
Speaker 1: now the prosecutions of the torch bearing white supremacist who
Speaker 1: came to Charlottesville in twenty seventeen, and I found a
Speaker 1: lot more than I bargained for. I don't know what
Speaker 1: I expected, but last week's story of a small town
Speaker 1: war and a rural gay bar complete with side characters
Speaker 1: like a notorious federal informant who worked for Lynton LaRouche
Speaker 1: and a street preacher who was a central figure in
Speaker 1: the Obama Birtherism conspiracy, definitely surprised me. This week, though,
Speaker 1: we'll actually get to Barry's infamous cross burning and the Black,
Speaker 1: a CLU lawyer who fought for the clansman's rights.
Speaker 2: That victory. What worldwide I said case presence, I said
Speaker 2: case law, and we proved that the law does work.
Speaker 2: Yet I can light across anywhere in the United States
Speaker 2: of America that I want to light it.
Speaker 1: Berry Black fought the law, and he won. But a
Speaker 1: new law was born from the ashes of the one
Speaker 1: Barry burned. I'm Molly Conger. This is one of the
Speaker 1: little guys. When we left off last week, Barry Black
Speaker 1: and his Keystone Knights had gotten into a little hot
Speaker 1: water at their white bride picnic. In July of nineteen
Speaker 1: ninety eight, Barry held a clan picnic on a farm
Speaker 1: owned by Don and Lisa Penrod in Somerset County, Pennsylvania,
Speaker 1: when Berry held a clan rally at Kasanova Lounge, the
Speaker 1: county's only gay bar the year prior. The Penrod's farm
Speaker 1: was the pre rally staging area and the site of
Speaker 1: the post rally cross burning later that evening. They weren't
Speaker 1: just concerned neighbors whose opposition to the gay bar made
Speaker 1: them unlikely allies with the clan. They were members. Lisa
Speaker 1: Penrod in fact commanded the Women's Auxiliary Unit and served
Speaker 1: as the Imperial Secretary of the Invisible Empire International Keystone
Speaker 1: Knights of the Ku Klux Klan under Berry's leadership, and
Speaker 1: on July twenty fifth, nineteen ninety eight, Don and Lisa
Speaker 1: Penrod were two of the ten clan members standing at
Speaker 1: the fence line on the Penrod farm demanding answers from
Speaker 1: a man in their neighbour's tree. That man turned out
Speaker 1: to be a state trooper, and Don Penne was one
Speaker 1: of four attendees at the clan picnic who was arrested
Speaker 1: for threatening the trooper at gunpoint. Barry himself posted Don
Speaker 1: Penrod's ten thousand dollars bond. The week after the picnic,
Speaker 1: Cambria County District Attorney David Tulowitski filed a petition with
Speaker 1: the court to have Berry Black removed from the office
Speaker 1: of Constable, an elected law enforcement position he'd won by
Speaker 1: a single rite in vote the year prior history was
Speaker 1: repeating itself. Barry was elected constable of Johnstown's twenty first
Speaker 1: ward in nineteen ninety one, and was removed from office
Speaker 1: just a few months later when the county prosecutor filed
Speaker 1: a petition to have him removed on the grounds that
Speaker 1: his criminal record made him ineligible to hold a position
Speaker 1: of public trust. A judge agreed. Barry appealed that decision
Speaker 1: and fought it all the way to the Pennsylvania Supreme Court,
Speaker 1: holding clan rallies at court houses and in small towns
Speaker 1: throughout the year and a half long appeals process. The
Speaker 1: state's highest court told Barry in nineteen ninety three that
Speaker 1: he wasn't allowed to be the Constable and nothing in
Speaker 1: the law had changed in the five years since. But
Speaker 1: here he was fighting the same fight all over again.
Speaker 1: This time around, he argued that the petition to remove
Speaker 1: him from office was retaliation, pure and simple. The county
Speaker 1: was punishing him for his clan rally and for the
Speaker 1: complaint he'd filed against the state troopers who arrested his
Speaker 1: friends at the picnic in mid August of nineteen ninety eight.
Speaker 1: The issue of whether the Clansmen could continue operating as
Speaker 1: Constable was with the courts. There was no injunction preventing
Speaker 1: him from acting as a law enforcement official, but the
Speaker 1: county had apparently instructed officers of the court to use
Speaker 1: him to serve Warrens as sparingly as possible. In the meantime,
Speaker 1: Barry's lawyer shrugged this off, telling the local paper. I
Speaker 1: think he's pretty well preoccupied with his grand wizardry in
Speaker 1: the clan, and that's true. He was keeping busy, And
Speaker 1: it was in August nineteen ninety eight that Barry Black
Speaker 1: took a road trip. This wasn't Barry's first out of
Speaker 1: state clan field trip. Six people were arrested when the
Speaker 1: crowd got out of control during Barry's opening prayers at
Speaker 1: a clan rally in Millville, New Jersey, in nineteen ninety.
Speaker 1: When Barry head lined across burning in Maryland in nineteen
Speaker 1: ninety one, the Washington Post printed the slurs that came
Speaker 1: out of his mouth. When clan leaders from six states
Speaker 1: converged in Ohio in nineteen ninety five, Barry told the
Speaker 1: Cincinnati Inquirer that it was like a family reunion and
Speaker 1: lamented that no one ever gives the clan credit for
Speaker 1: all the good things we do. When clansmen in South
Speaker 1: Carolina came under federal investigation for burning down black churches,
Speaker 1: Barry was there at a cross burning in Lexington in
Speaker 1: nineteen ninety six, pledging the support of the Keystone Nights
Speaker 1: in this legal battle to come. No, his lawyer was right.
Speaker 1: Barry was very busy being the grand Wizard. He was
Speaker 1: always driving off to Indiana, Ohio, Maryland, or just the
Speaker 1: other side of Pennsylvania for some appearance at a clan event.
Speaker 1: This trip to Virginia should have been like any of
Speaker 1: the others, show up, make a scene, light across, upset
Speaker 1: the locals, and head home again. But this time was different.
Speaker 1: The Keystone Knights of the Ku Klux Klan packed up
Speaker 1: their white robes and their crossburning supplies and made the
Speaker 1: six hour drive from Johnstown, Pennsylvania to Hillsville, Virginia, a
Speaker 1: small town in Carroll County in Virginia's far southwest tip,
Speaker 1: not far from the North Carolina border. And here's Barry
Speaker 1: in his own words, talking about the event in an
Speaker 1: interview recorded in two thousand and five for Duke University
Speaker 1: School of Law's Voices of American Law Project.
Speaker 2: What I was doing down there was starting a new den,
Speaker 2: or starting a new clavern, giving the people the books
Speaker 2: to read, telling the people what we expect to them
Speaker 2: and how we want them to become pillars in their community.
Speaker 1: Pillars of the community, he says. And when he was
Speaker 1: placed in the back of a deputy's patrol car, that night,
Speaker 1: he offered some insight into what he meant by that
Speaker 1: to Carroll County Sheriff's Lieutenant Rick Clark. Here's Virginia's Solicitor General,
Speaker 1: William Hurd relaying that statement to the Supreme Court.
Speaker 3: What we had in the case of Barry Black was
Speaker 3: he heard that he's from Pennsylvania. He heard that down
Speaker 3: in Carroll County, blacks and whites were holding hands on
Speaker 3: the sidewalk.
Speaker 1: Barry Black was arrested that night, handcuffed and taken away
Speaker 1: while the cross was still burning, because, regardless of why
Speaker 1: he came, what he'd done was a felony here in Virginia.
Speaker 1: The first half of this story opened with a twelve
Speaker 1: foot cross set ablaze in a peanut field in Suffolk, Virginia,
Speaker 1: in nineteen forty eight. Local agricultural union workers denounced it
Speaker 1: as an act of terrorism and demanded a response from
Speaker 1: state government officials. After being brushed off by local law enforcement,
Speaker 1: it just wasn't a crime. Newspaper archives for the next
Speaker 1: few years show a frustrating pattern. Crosses were burning all
Speaker 1: over the state, and every time it happened, it was
Speaker 1: dismissed as some isolated incident. Some kind of prank, some
Speaker 1: kind of childish active vandalism. Every cross that burned in
Speaker 1: Virginia was written off by newspapers and cops here in Virginia,
Speaker 1: But those same papers ran stories of flaming crosses in
Speaker 1: Tennessee and South Carolina, properly identifying those as what they were,
Speaker 1: a burning line in the sand, keeping black Southerners from
Speaker 1: moving into white neighborhoods, from getting elected to office, from
Speaker 1: gaining civil rights, and from feeling safe in their homes.
Speaker 1: In late nineteen forty nine, a series of cross burnings
Speaker 1: culminating in an explosion, destroyed the construction site for a
Speaker 1: planned housing project for black residents in Nashville. After Judge
Speaker 1: Wade's wearing open South Carolina's previously whites only primaries to
Speaker 1: black voters, his home was targeted repeatedly with crosses burning
Speaker 1: on his front lawn in nineteen fifty. But the same
Speaker 1: papers that ran those wire stories from cities and other
Speaker 1: states wrote their own local coverage of crossburnings closer to home,
Speaker 1: with a very different tone. When a cross burned in
Speaker 1: Nashville or Charleston, it's safe to say that those cities
Speaker 1: have racial unrest. Those cities have the clan. In the
Speaker 1: summer of nineteen fifty, several black residents of Colonial Beach, Virginia,
Speaker 1: found a lawsuit to force the locality to allow them
Speaker 1: to swim in a public beach. The town relented, there
Speaker 1: was no need to go to court. The beaches are
Speaker 1: open to all residents. But when those black residents and
Speaker 1: their attorney went to the beach to see if that
Speaker 1: was true, five hundred white men attacked the fifteen black beachgoers.
Speaker 1: Later that week, crosses burned all down the beach. Another
Speaker 1: cross was erected and burned outside of the Black church,
Speaker 1: accompanied by rifle fire, and the letters k k K
Speaker 1: were scrawled on sidewalks all over black neighborhoods. The town
Speaker 1: council took no official notice of the crossburnings and said
Speaker 1: they not only had no obligation to anticipate on the
Speaker 1: rest of the beach, but it would in fact amount
Speaker 1: to discrimination to have done anything to ensure those black
Speaker 1: residents could access the beach. There was no KKK in
Speaker 1: Virginia in nineteen fifty. Just look at any newspaper anywhere
Speaker 1: in the state. When a woman had found a cross
Speaker 1: burning on her front porch in Noffolk in September of
Speaker 1: nineteen fifty. The police told then Offolk Ledger Dispatch that
Speaker 1: it was only a small cross, just two feet high,
Speaker 1: and quote the clan usually puts on a bigger show.
Speaker 1: There had been eight cross burnings in neighboring Nansaman County
Speaker 1: in just the last few months, but this was probably
Speaker 1: just mischievous kids. The Bristol, Virginia Time in the Sea
Speaker 1: and reported in October of nineteen fifty that the twelve
Speaker 1: foot cross burned on a hillside near the reservoir, where
Speaker 1: it was visible to hundreds of residents, was just a prank.
Speaker 1: There's no way to know what those men in hoods
Speaker 1: were doing up there, and a police captain told the
Speaker 1: paper that the Confederate flag left behind was evidence that
Speaker 1: this was obviously just a prank. That same newspaper had
Speaker 1: been running coverage of a clan march in South Carolina
Speaker 1: just six weeks earlier. After letting up a cross in
Speaker 1: Myrtle Beach, the clan marched into town surrounding a black
Speaker 1: dance hall. There was a riot. Charlie Fitzgerald stood in
Speaker 1: the doorway of his bar with a gun, but he
Speaker 1: never had a chance to fire it before the mob
Speaker 1: beat him and shoved him into the trunk of a car.
Speaker 1: The clansmen emptied their guns into the sides of the building,
Speaker 1: riddling the walls with bullet holes and shattering all of
Speaker 1: the windows. Amidst all this chaos, one of their own
Speaker 1: took a stray bullet in the back. When his robes
Speaker 1: were removed to the hospital where he died, he was
Speaker 1: wearing a policeman's uniform. Underneath. These stories running in the
Speaker 1: same paper may give you some insight into a small
Speaker 1: town police officer's eagerness to explain away these flames on
Speaker 1: a hillside, but you can draw your own conclusions. The
Speaker 1: clan was thriving again across the South. In January of
Speaker 1: nineteen fifty one, the state of Georgia outlawed crossburning in
Speaker 1: an effort to stem the tide of this white robed violence.
Speaker 1: In February of nineteen fifty one, crosses were lit outside
Speaker 1: the homes and businesses of black residence in Guchland and
Speaker 1: in Reiko Counties in Virginia. Black families reported seeing half
Speaker 1: a dozen men firing their guns into the air as
Speaker 1: they ran back to their cars after lighting the flames.
Speaker 1: The FBI said it was a local matter. The sheriff
Speaker 1: said it was pranksters. When the local NAACP demanded an investigation,
Speaker 1: the county prosecutor said, there is definitely no racial relations
Speaker 1: question connected to the recent crossburnings. By June of nineteen
Speaker 1: fifty one, Florida, Alabama, and South Carolina had joined Georgia
Speaker 1: in banning crossburning across the South. The crosses burned, and
Speaker 1: there was no question about what it meant except when
Speaker 1: it happened here. The same papers that ran the wire
Speaker 1: stories about the legislative attempts to combat clan activity everywhere
Speaker 1: else said the six foot cross doused and gasoline in
Speaker 1: the middle of Route one in Stafford was just a prank.
Speaker 1: It was just kids messing with traffic. In August of
Speaker 1: that year, a widow and Appomatox was awoken in the
Speaker 1: middle of the night by the sound of an explosion.
Speaker 1: The cross burning on her front lawn had ignited the
Speaker 1: dynamite late at its base. A postcard from the clan
Speaker 1: was left to the scene. The newspaper ran the headline
Speaker 1: crossfire lacks motive, with the sheriff quoted saying, my office
Speaker 1: dropped the matter. It was probably a personal thing or
Speaker 1: just some children. In my haphazard search of newspaper archives,
Speaker 1: I found nearly a hundred of these pranks in Virginia
Speaker 1: and the nineteen fifties. A white cop tells a white
Speaker 1: reporter that there's nothing to worry about here, it's only
Speaker 1: a joke. As a black family douses the burning embers
Speaker 1: on the law. No one could see the racial terror
Speaker 1: we already had here at home. It was always kids
Speaker 1: or vandals or pranksters. But in nineteen fifty two, the
Speaker 1: Virginia State legislature was finally ready to act. Responding to
Speaker 1: reports that Florida Clan leader Bill Hendrix was planning a
Speaker 1: rally in Richmond and South Carolina Clan leader Thomas Hamilton
Speaker 1: was planning to start chapters in more than a dozen
Speaker 1: towns in Virginia, a bill was introduced to outlaw the
Speaker 1: wearing of masks in public. At the urging of religious groups,
Speaker 1: a ban on crossburning was added. The threat of these
Speaker 1: out of town clansmen pushed the bill through without significant pushback,
Speaker 1: and it was signed by Governor John Battle in April
Speaker 1: nineteen fifty two. But changing the law didn't change anyone's attitudes.
Speaker 1: Throughout the nineteen fifties, most of the crossburning stories I
Speaker 1: could find were dismissed as pranks, and if I'm being
Speaker 1: entirely honest, some of them might have been. There were
Speaker 1: several crossburnings in Newport News that teenage boys eventually confessed to,
Speaker 1: with one cross being placed on the law of a
Speaker 1: state delegate by mistake. The boys said they were pranking
Speaker 1: their high school teachers, and I did find at least
Speaker 1: three stories of high school teachers and Newport News who
Speaker 1: had crosses burned on their lawn. The boys' names were
Speaker 1: never published, so I don't know what they got up
Speaker 1: to later in life, and I have to wonder exactly
Speaker 1: what kind of pranks these were. It's the fifties. Had
Speaker 1: those teachers expressed support for integration, Did they go on
Speaker 1: dates with black women or rent property to black tenants.
Speaker 1: It wasn't unheard of for behavior like that to earn
Speaker 1: a white man a visit from those seeking to enforce
Speaker 1: the established social order. But it's impossible to say seventy
Speaker 1: years later what prompted those nighttime visits from their students.
Speaker 1: And I tell you about these ones that maybe were pranks,
Speaker 1: because I don't think any of them being pranks really
Speaker 1: helps explain it at all. If anything in underscores how
Speaker 1: widespread and commonly understood this was as a symbol. You
Speaker 1: didn't have to be a clansman to know what it meant.
Speaker 1: You didn't have to mean it yourself to know how
Speaker 1: it would be read. In nineteen sixty five, George Lincoln Rockwell,
Speaker 1: the founder of the American Nazi Party, ran for governor
Speaker 1: here in Virginia. He didn't win, obviously, he got nearly
Speaker 1: six thousand votes, though one percent of the total caste.
Speaker 1: The new governor was Mills Godwin, once a staunch segregationist
Speaker 1: who had distanced himself from the political machine of Harry Bird.
Speaker 1: Whether he had a change of heart or just saw
Speaker 1: the writing on the wall after the failure of Virginia's
Speaker 1: massive resistance to school desegregation is impossible to say, but
Speaker 1: in December of nineteen sixty six, Governor Mills Godwin announced
Speaker 1: a one thousand dollar reward for information leading to the
Speaker 1: arrest and conviction of cross burners. In response, the Klan
Speaker 1: burned a cross outside the Governor's mansion.
Speaker 4: The clan dead rear its head in certain areas of
Speaker 4: Virginia in that period, even to the extent that they
Speaker 4: burned a cross on the sidewalk right by I'm the
Speaker 4: Governor's mansion. And we made some arrest and there were
Speaker 4: some sentences meeted out to those that were convicted, and
Speaker 4: it had a real deterring effect.
Speaker 1: A rash of cross burnings followed. Crosses burned all over
Speaker 1: the state of Virginia in protest of Governor Godwin's declaration
Speaker 1: of war against the Clan. On New Year's Day nineteen
Speaker 1: sixty seven, Wilson Ralph Price and his wife, Nanny Jane
Speaker 1: Price were arrested for burning across on a sidewalk in Richmond.
Speaker 1: All three of their young children were waiting for them
Speaker 1: in their parked car, where police found several loaded guns,
Speaker 1: a second cross they intended to burn elsewhere later that day,
Speaker 1: and a stack of Clan literature. Barry Black wasn't the
Speaker 1: first clansman to fight this law, and win. Price had
Speaker 1: his conviction overturned by the Virginia Supreme Court a year later,
Speaker 1: with the court ruling that technically the law didn't apply here.
Speaker 1: The Prices had burned that cross on public property on
Speaker 1: the sidewalk not on the property of another, as stated
Speaker 1: in the statute. The Virginia General Assembly amended the law
Speaker 1: that year to include a bannon crossburning on public property
Speaker 1: as well. In nineteen sixty eight, the state Supreme Court
Speaker 1: seemed to believe that the purpose of banning crossburning was
Speaker 1: to protect private property. The law didn't protect people, it
Speaker 1: protected their laws, and with this amendment, the legislature clarified
Speaker 1: their intention. The law isn't about property or truspass or
Speaker 1: the possibility of danger from the flames themselves. It is
Speaker 1: intended to prevent a particular act of intimidation. But in
Speaker 1: their efforts to close off this avenue of attack, they
Speaker 1: accidentally created another. This amendment to the statute also added
Speaker 1: language that the unlaw full burning of a cross shall
Speaker 1: be primaphacia evidence of the intention to intimidate a person
Speaker 1: or group of persons. This language was likely intended to
Speaker 1: get around the defense of whill it was just a prank.
Speaker 1: Burning across is such a heinous act with no other
Speaker 1: purpose than to intimidate that if you can prove it
Speaker 1: was done at all, then the starting assumption is that
Speaker 1: it was done to intimidate. So this amendment to the
Speaker 1: law shifts the burden of proof to the party trying
Speaker 1: to prove otherwise. So when Bury lit that cross in
Speaker 1: Carroll County on August twenty second, nineteen ninety eight, the
Speaker 1: law on the books read, it shall be unlawful for
Speaker 1: any person or persons, with the intent of intimidating any
Speaker 1: person or group of persons, to burn, or cause to
Speaker 1: be burned across on the property of another, a highway
Speaker 1: or other public space. Any person who shall violate this
Speaker 1: section shall be guilty of a classic spelony. Any such
Speaker 1: burning of a cross shall be primophacia evidence of an
Speaker 1: intent to intimidate a person or group of persons, And
Speaker 1: Barry had done that. When the sheriff's lieutenant arrived, he
Speaker 1: asked who lit this cross, and Barry stepped forward and
Speaker 1: claimed responsibility. He was charged in Carroll County and released
Speaker 1: on bond, but he was having a hell of a
Speaker 1: time finding a lawyer. Most lawyers in the area wouldn't
Speaker 1: even return his calls. But then, as in so many
Speaker 1: cases of extremists trying to force their way into the
Speaker 1: conversation about civil rights, the ACLU stepped up without even
Speaker 1: having to be asked.
Speaker 2: Well, I walked into the courthouse. I just looked at him.
Speaker 2: He says, is there something wrong here? And I says,
Speaker 2: you're David Ball. He said yeah. I said you're black.
Speaker 2: He says yeah. I said, are you going to fight
Speaker 2: for me? Are you going to give me one hundred
Speaker 2: and fifty one percent? He says, I'm not going to
Speaker 2: change your views. He says, in my views about you
Speaker 2: aren't the greatest in the world either. He says, but
Speaker 2: I will give you one hundred and fifty one percent.
Speaker 2: You have my word on that, sir. He says, I'll
Speaker 2: defend you to the end. And I says, good enough.
Speaker 1: The Virginia ACLU was no stranger to this strange bedfellow's
Speaker 1: type of attorney client relationship. Just a few years earlier,
Speaker 1: they'd taken on the case of Buddy Hernandez, a clansman
Speaker 1: who was arrested in nineteen eighty nine for handing out
Speaker 1: clan literature while wearing full clan regalia, including a hood
Speaker 1: that covered his face. Like the crossburning law, Virginia's anti
Speaker 1: masking Statute was adopted in nineteen fifty two with the
Speaker 1: explicit intention of curtailing clan activity. The anti masking statute
Speaker 1: was upheld by the Virginia Supreme Court, and the actual
Speaker 1: Supreme Court declined to hear Hernandez's case. In nineteen ninety four,
Speaker 1: ACLU attorney David Baugh went to Batford Barry, and he
Speaker 1: spent years on the case. When the pair first appeared
Speaker 1: in court together, the Richmond Times Dispatch ran the headline
Speaker 1: crowd likely as black defends klansmen. The news stories can
Speaker 1: be a little tough to parse sometimes because our klansman's
Speaker 1: name is black, and the African American attorney representing him
Speaker 1: is being referred to often in these newspapers as a
Speaker 1: black and the case was getting a lot of publicity.
Speaker 1: This tiny town of just twenty seven hundred was suddenly
Speaker 1: swarming with reporters and lawyers. The state Attorney General's office
Speaker 1: sent a team to assist the local prosecutor. Carroll County
Speaker 1: District Court Clerk Christine Beck told the paper, it's going
Speaker 1: to be a circus, and added, I guess some things
Speaker 1: are just fascinating, like the sex lies of the President.
Speaker 1: This would have been right around the time the Star
Speaker 1: report was released to the public, and everyone was just
Speaker 1: in a frenzy about the Monica Lewinsky scandal. The last
Speaker 1: few months of nineteen ninety eight were hectic for Barry.
Speaker 1: Now he was fighting his own case down in Virginia,
Speaker 1: but the four clansmen arrested at the White Bride picnic
Speaker 1: were still fighting their cases at home in Pennsylvania. A
Speaker 1: few weeks after this cross burning, Barry was kicked out
Speaker 1: of the court room during a hearing in Don Penrod's
Speaker 1: case for pointing his rifle at that state trooper, and
Speaker 1: Barry had to appear in court repeatedly in his fight
Speaker 1: to keep his job as constable. He's under more scrutiny
Speaker 1: than ever his local prosecutor, state troopers, and the courts
Speaker 1: in Virginia were just waiting for Barry to make a mistake.
Speaker 1: In March of nineteen ninety nine, a judge in Virginia
Speaker 1: ruled against emotion to dismiss Barry's criminal case, rejecting the
Speaker 1: argument that cross burning was protected First Amendment conduct. A
Speaker 1: few days later, Barry was back in court in Pennsylvania,
Speaker 1: railing against the corrupt judicial system trying to take away
Speaker 1: his job as constable. He told reporter in the hallway
Speaker 1: after the hearing that if they would just let him
Speaker 1: keep the job, he would be too busy working to
Speaker 1: keep up his clan activities. That's not really a great
Speaker 1: argument if you ask me, you know, just let me
Speaker 1: be a cop and I'll be too busy to do crime.
Speaker 1: I don't know that that's very convincing. And while we're
Speaker 1: on the subject of guys who probably should not be cops,
Speaker 1: I want to pick up a thread from the story
Speaker 1: last week. Barry's involvement in the war on the Casanova
Speaker 1: Lounge doesn't really factor into this week's story. He's too
Speaker 1: busy with his own problems at this point to be
Speaker 1: bothering with that gay bar. But the situation was ongoing,
Speaker 1: and it was around this time, in the spring of
Speaker 1: nineteen ninety nine, that something the bar's patrons had long
Speaker 1: suspected was proved to be true. The bigots had an
Speaker 1: inside man. Ron Immler, the police chief and neighboring Connamaw Township,
Speaker 1: had been running license plates for the protesters and supplying
Speaker 1: them with the names and home addresses of the people
Speaker 1: who visited the gay bar. Imler denied these accusations, but
Speaker 1: he suddenly retired. The Pennsylvania State Police Bureau of Technology
Speaker 1: Service informed the town's supervisors in a letter that Ron
Speaker 1: Imler had violated state and federal law by providing confidential
Speaker 1: information obtained through state computer databases to an unauthorized person.
Speaker 1: It's not clear to me if Immler was ever charged
Speaker 1: or prosecuted for this. There's no record in the online
Speaker 1: information system for Pennsylvania's courts. It could be that this
Speaker 1: is very old. I did find other records from that year.
Speaker 1: It could be that he had it sealed or expunged.
Speaker 1: But it's possible that he was just never charged. So
Speaker 1: we do have on record that the state police informed
Speaker 1: the township that their police chief had broken the law,
Speaker 1: but it's not clear that the local prosecutor ever brought
Speaker 1: those charge. So it's not always as literal as that
Speaker 1: dead clansman in South Carolina who was wearing his police
Speaker 1: uniform under his robes. And Barry wasn't the only law
Speaker 1: enforcement official in the area whose vision of law and
Speaker 1: order included harassing that bar out of existence. But back
Speaker 1: to Barry, things didn't improve much for Barry, as nineteen
Speaker 1: ninety nine, wore On Don Penrod and two other clansmen
Speaker 1: were convicted for threatening those state troopers at the White
Speaker 1: Pride picnic, and Barry was once again removed from the
Speaker 1: office of Constable by the courts. He tried to appeal
Speaker 1: the decision as he had the first time around, but
Speaker 1: it didn't work out. He filed a federal lawsuit against
Speaker 1: the state police, but his case got tossed before it
Speaker 1: even got off the ground. He had to bail his son,
Speaker 1: Barry Junior, out of the local jail three times that year,
Speaker 1: including one night after the younger Barry was arrested for
Speaker 1: threatening someone with a gun. And in June of nineteen
Speaker 1: ninety nine, an all white jury in Carroll County liberated
Speaker 1: for just twenty five minutes before finding Berry Black guilty
Speaker 1: of cross burning under that Virginia statute. They had the
Speaker 1: option of giving him up to five years behind bars
Speaker 1: for this classics felony, but the jury decided on just
Speaker 1: a twenty five hundred dollars fine.
Speaker 2: I can't just say, hey, no, here's twenty five hundred dollars,
Speaker 2: forget it. If I did that, I'm letting my race down.
Speaker 2: I have to make people know that America is still
Speaker 2: a land of opportunity, that America is still a land
Speaker 2: of democracy, and that the Constitution United States of America
Speaker 2: still means something.
Speaker 1: His attorney, David Ball, vowed to appeal the conviction, saying
Speaker 1: the cross was burned as part of their ceremony, not
Speaker 1: because they wanted to intimidate anyone, and the first appeal
Speaker 1: didn't go their way. In December of two thousand, the
Speaker 1: Virginia Court of Appeals upheld Berry's conviction, but they kept fighting.
Speaker 1: A year later, the Virginia Supreme Court agreed with Barry
Speaker 1: Virginia's crossburning law was unconstitutional. The opinion noted that similar
Speaker 1: statutes in Maryland and South Carolina had been ruled unconstitutional
Speaker 1: in recent years, and the law on the books was
Speaker 1: indistinguishable from the Minnesota law struck down in the nineteen
Speaker 1: ninety two Supreme Court case rav versus City of Saint Paul.
Speaker 1: The issue here arises in that nineteen sixty eight amendment
Speaker 1: to the law about the act itself being sufficient evidence
Speaker 1: of intent, and just a quick side note here. I
Speaker 1: don't want a Monday morning quarterback the State Supreme Court,
Speaker 1: but they are mistaken about something here. The opinion incorrectly
Speaker 1: states that the prima fascia evidence of intent language was
Speaker 1: added in nineteen seventy five, but it was nineteen sixty eight.
Speaker 1: And I can promise you that I pulled copies of
Speaker 1: the Acts of the General Assembly for every legislative session
Speaker 1: that this code section was touched. The prima facial requirement
Speaker 1: was inserted when the law was amended in nineteen sixty eight,
Speaker 1: after the State Supreme Court overturned Wilson Price's conviction. I
Speaker 1: think the origin of this error is that the code
Speaker 1: section does show a revision was made in nineteen seventy five,
Speaker 1: but if you pull the full text of the nineteen
Speaker 1: seventy five session, it's because everything in Title eighteen was
Speaker 1: technically amended in nineteen seventy five, because they rearranged and
Speaker 1: recodified the entire Criminal Code. So the language of the
Speaker 1: statute stayed the same between nineteen sixty eight and nineteen
Speaker 1: seventy five. They just changed the numbers. That doesn't matter
Speaker 1: at all. I didn't need to tell you that. I'm
Speaker 1: just flexing on some court clerk from twenty four years ago.
Speaker 1: I guess sorry, But anyway, this decision rested on that language.
Speaker 1: The law couldn't be content neutral if this baked in
Speaker 1: assumption of intent rested on the historical context of crossburning.
Speaker 1: So basically, the court is saying you can't have it
Speaker 1: both ways. Either the law is constitutional because it is
Speaker 1: content neutral it applies to everyone regardless of their motivation,
Speaker 1: or you can justify the inference of intimidation by relying
Speaker 1: on the history of the clan. But both of those
Speaker 1: things can't be true at the same time. And because
Speaker 1: Barry wasn't the only person arrested for burning across in
Speaker 1: Virginia in nineteen ninety eight, this appeal to the state
Speaker 1: Supreme Court was actually three cases rolled up into one,
Speaker 1: so the court wasn't just reversing Barry's conviction in this opinion,
Speaker 1: They were also throwing out convictions against Richard Elliott and
Speaker 1: Jonathan O'Mara, two men had been convicted for burning across
Speaker 1: on a black family's lawn. Now Barry has an argument here.
Speaker 1: I don't like it. I don't have to like it,
Speaker 1: but it's true there wasn't really a victim in this case.
Speaker 1: He was on private property at the invitation of the owner,
Speaker 1: and they didn't really intend for anybody to see what
Speaker 1: they were doing. The landowner's niece by marriage, who was
Speaker 1: living elsewhere on the property, did testify in the original
Speaker 1: case that she saw the cross burning and had been frightened,
Speaker 1: but she was arguably not any kind of intended audience.
Speaker 1: It's not even clear if they knew she was there.
Speaker 1: For Elliot and O'Mara, though their cases did not rely
Speaker 1: on prima facia evidence of intent, there was actual proof
Speaker 1: of intent. There was a victim here. They absolutely intended
Speaker 1: to intimidate that family and should rightfully be punished under
Speaker 1: this law. So the State of Virginia appealed the state
Speaker 1: Supreme Court ruling to the Supreme Court, and all three
Speaker 1: of these cases rolled right on up together. And I'll
Speaker 1: admit that, before I started picking this story apart, my
Speaker 1: sort of general understanding of Commonwealth feed Black was that
Speaker 1: the Supreme Court ruled Virginia's crossburning law was unconstitutional, and
Speaker 1: that is what happened. But it's not entirely straightforward. Even
Speaker 1: the men's own lawyer, Rodney Smolla, wasn't sure what to
Speaker 1: make of the decision the day he read it.
Speaker 2: I'm reading, and I read the first sentence, and I think, well, no,
Speaker 2: I wantcons I says, no, I lost, And.
Speaker 3: Then I get through the first set of opinions by
Speaker 3: Justice O'Connor, and I wasn't sure.
Speaker 1: The decision announced by Justice Sandrada O'Connor was kind of
Speaker 1: a mixed bag. The court ruled it. Yes, the Virginia
Speaker 1: Supreme Court was right about the prema facia element of
Speaker 1: the law, making it unconstitutional.
Speaker 5: The act of burning across may mean that the person
Speaker 5: is engaging in constitutionally proscribable intimidation, or it may mean
Speaker 5: only that the person is engaged in core political speech.
Speaker 5: The prim of face sheet provision blurs the line between
Speaker 5: these meanings. The First Amendment does not permit such a shortcut.
Speaker 5: Thus Black's convict cannot stand and the judgment as to
Speaker 5: him is affirmed.
Speaker 1: But they were also clear in their opinion that Virginia
Speaker 1: can enforce a law banning crossburning so long as that
Speaker 1: law requires an intent to intimidate. If it can be
Speaker 1: proven that the act was carried out with such an intent,
Speaker 1: it's not free speech anymore. It's a true threat, and
Speaker 1: threats are not protected by the First Amendment.
Speaker 5: We hold that a state consistent with the First Amendment
Speaker 5: may ban crossburning carried out with the intent to intimidate.
Speaker 5: While a burning cross does not always convey a message
Speaker 5: of intimidation, often the crossburner intends that the recipients of
Speaker 5: the message fear for their lives, and when a cross
Speaker 5: burning is used to intimidate, few, if any, messages are
Speaker 5: more powerful.
Speaker 1: Very one. His conviction was overturned. The highest court in
Speaker 1: the land agreed it was his constitutional right to light
Speaker 1: that cross. The Supreme Court did reverse the Virginia Supreme
Speaker 1: Court rulings that had overturned Richard Elliott and Jonathan O'Mara's convictions.
Speaker 1: Their cases were kicked back down to the lower courts,
Speaker 1: and ultimately they were convicted and did serve time. And
Speaker 1: after a lifetime of fighting losing battles, you might think
Speaker 1: Barry came away from this emboldened, empowered, ready to ride
Speaker 1: this victory into more marches, more recruiting, more crossburnings, more anything.
Speaker 1: But he didn't really. He was fifty five the year
Speaker 1: the Supreme Court gave him their blessing to burn crosses.
Speaker 1: He probably did burn a few more, but none of
Speaker 1: them made the news. He'd planted some seeds as an
Speaker 1: imperial wizard, but none of them really thrived. Corporate entities
Speaker 1: with names that seemed to tie them to Barry's Keystone
Speaker 1: Knights existed in several states, but most of them withered
Speaker 1: and died. The International Keystone Knights of the Realm of
Speaker 1: Ohio registered with the State of Ohio in two thousand
Speaker 1: and two, but they stopped filing annual paperwork in twenty thirteen.
Speaker 1: The Invisible Empire International Keystone Knights of the Ku Klux Klan,
Speaker 1: Incorporated was registered in Indiana by Barry himself in nineteen
Speaker 1: ninety seven. The South Carolina based nonprofit Barry incorporated in
Speaker 1: nineteen ninety nine technically still exists on paper, despite the
Speaker 1: deaths of both Barry and the local clansmen. He ran
Speaker 1: it with a Virginia chapter of the Keystone Knights Incorporated
Speaker 1: a few months after the Supreme Court victory in two
Speaker 1: thousand and three, but there's no record I can find
Speaker 1: of the chapter getting up to anything, and all record
Speaker 1: of the entity disappears entirely after two thousand and eight.
Speaker 1: Stephen Dnkle, the one time leader of a Keystone Night
Speaker 1: Knights chapter in Alabama, was convicted of a federal hate
Speaker 1: crime in twenty fourteen for a crossburning. After his release,
Speaker 1: he was convicted again for a federal firearms related offense,
Speaker 1: and in twenty seventeen he was sentenced to ten years
Speaker 1: for sexually assaulting an incapacitated woman. A man named Willis
Speaker 1: Fraser still files annual paperwork with the IRS for the
Speaker 1: Indiana based entity using the Keystone Knights name. In two
Speaker 1: thousand and four, Fraser tried to sue the State of
Speaker 1: Arkansas after he was fired from his job as a
Speaker 1: prison guard for being a member of the Keystone Knights,
Speaker 1: but his suit was dismissed. The only place the Keystone
Speaker 1: Knights have popped up in recent years was their legal
Speaker 1: battle with the state of Georgia over the denial of
Speaker 1: their application to the state's adopt a Highway program. The
Speaker 1: ACLU stepped in to help secure the clan's right to
Speaker 1: put their name on a sign on the side of
Speaker 1: a Georgia highway. That Keystone Knights chapter in Georgia seems
Speaker 1: to be the only one that really still exists, with
Speaker 1: hid Willis Fraser's name on some of that paperwork, tying
Speaker 1: it all the way back to Barry. The Keystone Knights
Speaker 1: are more or less dead, and Barry Black is entirely dead.
Speaker 1: He passed away in twenty eighteen. He lived a life
Speaker 1: of hatred. He spent most of his life feeling persecuted
Speaker 1: and aggrieved, fighting what he saw as a righteous battle
Speaker 1: for his civil rights. His right to disrupt life in
Speaker 1: a small town with his clan rallies, his right to
Speaker 1: serve as constable, his right to lead armed mobs that
Speaker 1: threatened to shoot cops, his right to burn crosses, his
Speaker 1: right to make his bigotry your problem. The part of
Speaker 1: Barry's legacy I'm most interested in, though, is the law
Speaker 1: written to stop the next Berry Black. While berry Black's
Speaker 1: crossburning appeals were working their way through the appeals process,
Speaker 1: the Virginia General Assembly had already corrected the problem. They
Speaker 1: knew the law they'd used to prosecute Barry wasn't going
Speaker 1: to hold up, and instead of amending the existing statute,
Speaker 1: they passed a new law in two thousand and two.
Speaker 1: The language about prima fascia evidence of intent was gone,
Speaker 1: of course, but there was another huge change. The cross
Speaker 1: itself was missing. This new law outlawed burning anything if
Speaker 1: it was done with the intent to intimidate. It's still
Speaker 1: understood to be a cross burning law, but it doesn't
Speaker 1: actually say that. It doesn't say that at all. Cross
Speaker 1: burnings never stopped. Of course, they still happen here from
Speaker 1: time to time. In twenty twenty, a man named James
Speaker 1: Brown burned across outside the home of a black teenager
Speaker 1: who'd been involved in organizing Black Lives Matter protests in Marion, Virginia.
Speaker 1: He served eighteen months for criminal interference with federally protected rights.
Speaker 1: Darryl Orange was convicted in twenty ten under the original
Speaker 1: cross burning law, which was left on the books for
Speaker 1: some reason, after he burned a cross on his neighbor's
Speaker 1: lawn in Bedford, Virginia. Many crossburnings go unsolved or unprosecuted,
Speaker 1: and some of them are still dismissed as pranks. This
Speaker 1: new law has never really been tested until last year.
Speaker 1: I can only find a single case where it's ever
Speaker 1: even been used to charge someone. On the fourth of
Speaker 1: July and twenty nineteen, a man in Williamsburg pulled up
Speaker 1: in front of a wal Mart, got out of his car,
Speaker 1: put an American flag on the ground, and set it
Speaker 1: on fire. He didn't threat anyone, He just lit it up,
Speaker 1: shouted a bit about how he hated America, and drove off.
Speaker 1: Wasn't shouting in anyone in particular. He wasn't particularly close
Speaker 1: to anyone or anything, and no one was injured and
Speaker 1: nothing was really damaged. The charge almost certainly would not
Speaker 1: have held up to any kind of scrutiny in this
Speaker 1: particular case. The local cops outright said that they probably
Speaker 1: wouldn't even have arrested him at all if he'd burned
Speaker 1: a towel instead of a flag. It was the flag
Speaker 1: that had people worked up, but the First Amendment right
Speaker 1: to burn a flag, is well trod legal territory. He
Speaker 1: ultimately pled down to a misdemeanor disorderly conduct charge, so
Speaker 1: the court hasn't really ever had to deal with this
Speaker 1: burning object law until now. You see, seven years ago,
Speaker 1: hundreds of torch bearing White supremests marched through the grounds
Speaker 1: of the University of Virginia. They'd come to Charlottesville from
Speaker 1: across the country, taking Friday morning flights or taking turns
Speaker 1: at the wheel for cross country drives, and rented vans
Speaker 1: with guys they met on message boards. Arriving early before
Speaker 1: the big event the next day, they gathered in a
Speaker 1: field near the tennis courts and lined up two by two,
Speaker 1: torches in hand. Men with walkie talkies clipped to their belts,
Speaker 1: some with wired earpieces barked orders. Elliott Kleine, an ambitious
Speaker 1: young white nationalist organizer calling himself Eli Moseley after twentieth
Speaker 1: century British fascist Oswald Moseley, shouted at the crowd as
Speaker 1: they formed into a line.
Speaker 6: So we're going round right through, and anyone who we
Speaker 6: picked for the journey, let us know if we can do.
Speaker 1: It all right, we're clicking, big guys, no female. Klein
Speaker 1: was selecting the biggest marchers to lay down their torches,
Speaker 1: they might need her hands free. The march wound its
Speaker 1: way through the university grounds, up the lawn, and then
Speaker 1: up the steps of the University of Virginia's iconic rotunda.
Speaker 1: On the other side of the rotunda, gathered near a
Speaker 1: statue of Thomas Jefferson, a small group of anti racist
Speaker 1: activists waited. In her testimony during a later civil trial,
Speaker 1: one of the women who was terrorized that night said,
Speaker 1: when we heard the roaring of the approaching crowd, we
Speaker 1: just linked arms and held hands and started to sing.
Speaker 1: She said, at first it sounded like thunder, like the
Speaker 1: earth was growling. As the sound grew closer, but before
Speaker 1: she could see the light of the torches, she began
Speaker 1: to make out the chance hundreds of voices raised in unison,
Speaker 1: shouting blood and soil. Testifying about that night years later,
Speaker 1: she said she still hears it in her nightmare sometimes.
Speaker 1: And by the time that small group of mostly students
Speaker 1: realized the magnitude and ferocity of the approaching mob, it
Speaker 1: was too late. They were surrounded at the base of
Speaker 1: the statue by hundreds of torch wielding white supremacists for
Speaker 1: just a few minutes, minutes that those trapped at the
Speaker 1: base of the statue said they believed might be their last,
Speaker 1: as they were doused in lighter fluid, maced, kicked, and punched.
Speaker 1: There was a melee. After the crowd dispersed that night,
Speaker 1: and after the deadly rally the next morning, those men
Speaker 1: went home. Some started businesses, some joined the military, others
Speaker 1: got kicked out of the military, and some did both.
Speaker 1: Some died of heart attacks and drug overdoses and self
Speaker 1: inflicted gunshot wounds. They beat their wives and choked their
Speaker 1: girl friends, went to grad school, went to prison, trafficked drugs,
Speaker 1: started families, got divorced, ran for office, tried to overturn
Speaker 1: a presidential election, left the movement, tried to lead the movement,
Speaker 1: or just tried to disappear. There are as many stories
Speaker 1: as there were flames in the night when their voices
Speaker 1: joined us, one shouting Jews will not replace us, and
Speaker 1: then dousing the flames, going their separate ways back to
Speaker 1: the communities they came from. Last year, the Aldmorle County
Speaker 1: Prosecutor's Office decided to put this law to the test.
Speaker 1: This mom had burned objects, They had intimidated people with them.
Speaker 1: If this law was meant to punish anyone for anything,
Speaker 1: it was meant for men like this with their flaming torches.
Speaker 1: And if you're listening to this the day it came out,
Speaker 1: the odds are pretty good that I'm sitting in a
Speaker 1: little county courtroom with one of them right now.
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