Virginia v. Black, 538 U.S. 343; 123 S. Ct. 1536; 155 L. Ed. 2d 535 (2003)

Virginia v. Black, 538 U.S. 343; 123 S. Ct. 1536; 155 L. Ed. 2d 535 (2003)

Facts—Virginia law provided criminal penalties for individuals who burned crosses with the intent of intimidating others and treated cross burning as prima facie evidence of such intent. Under this law, Barry Black was convicted of burning a cross at a Ku Klux Klan rally in Carroll County, Virginia. The Court of Appeals of Virginia upheld his conviction for this offense. Similarly, Richard Elliott and Jonathan O’Mara of Virginia Beach were convicted of attempting to burn a cross in the yard of an African American neighbor who had inquired about shots fired in their back yard. The Court of Appeals of Virginia also upheld these convictions. The Supreme Court of Virginia consolidated the cases and, in a divided opinion, struck down the Virginia law as unconstitutional on its face.


(a) Is the part of the Virginia law making it illegal to burn a cross for the purpose of intimidating individuals constitutional?

(b) Is the part of the Virginia law requiring that cross burning be considered prima facie evidence of an intent to intimidate constitutional?

Decisions—(a) Yes; (b) No.

ReasonsJ. O’Connor (6–3 on issue a; 5–4 on issue b). O’Connor traced the practice of cross burning back to the fourteenth century, when Scottish tribes used the practice to signal one another. In the United States the practice became tied to the Ku Klux Klan, initially born in 1866, and revived in 1915. The Klan has used the cross both to intimidate others and to express group solidarity and support for white supremacy. The First Amendment is designed to allow for the “free trade in ideas,” but “the protections afforded by the First Amendment . . . are not absolute.” Speech may be limited if it leads to “immediate breach of the peace,” if it constitutes “fighting words,” or if it involves “True threats.” The Virginia Supreme Court relied on the decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), to void the Virginia law as impermissible “content discrimination,” but not all content discrimination is unconstitutional. Cross burning is definitely a form of symbolic expression, but such expression is not unlimited when it involves an “intent to discriminate.” Just as a state may regulate only the worst obscenity or threats against a president, so too, “The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.” However, instructing the jury that a cross burning is per se a form of intimidation makes this part of the law overly broad, increasing “an unacceptable risk of the suppression of ideas.” O’Connor noted that “a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity.” O’Connor observed that “It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings.” O’Connor thus voided Barry Black’s conviction and remanded the cases against Elliott and O’Mara for further proceedings.

J. Stevens, concurring, agreed that the First Amendment is not designed to protect speech designed to intimidate.

J. Thomas, concurring in question a and dissenting in question b, argued that the part of the decision invalidating restrictions against all cross burning ignores “reality.” Like Holmes, Thomas believed that “a page of history is worth a volume of logic.” Historically, the Klan has been a terrorist organization, abetting lawlessness and instilling fear. The fact that Virginia adopted this law in 1952, when segregation was still in effect, reveals that the law was not designed to squelch Klan speech favoring segregation but only conduct that led to intimidation. The Virginia law rationally draws the inference that cross burning is designed to intimidate and should be upheld.

J. Scalia, concurring in part and dissenting in part, did not believe that the prima facie evidence requirement is void on its face since it is rebuttable.

J. Souter concurred with the majority that the Court makes a content based distinction but believes the law is therefore unconstitutional. He relied chiefly on R.A.V. v. St. Paul to say that a state cannot single out a particular form of expression for special treatment. He denies the parallels between this law and laws designed to regulate obscenity or threats against the life of the president. Instruction to juries under Virginia’s law “skews the statute toward suppressing ideas.” Virginia should seek to accomplish its objectives though “a content-neutral statute banning intimidation.”

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