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Case Summary for Virginia v. Black
Argued: December 11, 2002
Decided: April 7, 2003
Issue: Freedom of Speech — Whether a state law that prohibits the burning of crosses on public and private property with the intent to intimidate violates the First Amendment.
Vote: Yes, the Court ruled 6-3 that a state may prohibit the burning of crosses with the intent to intimidate. However, the court also ruled 7-2 that the state cannot pass a provision to the law saying that the burning of a cross is prima facie evidence of an intent to intimidate. In other words, a majority of the court determined that not every cross burner is intending to intimidate.
Decisions Below: The decision of the Virginia Supreme Court is published as Black v. Virginia, 262 Va. 764, 553 S.E.2d 738 (2001). The decision of the Virginia Court of Appeals is published as O’Mara v. Virginia, 33 Va. App. 525, 535 S.E.2d 175 (2001).
Facts: This case arises out of two separate cross-burning incidents. In May 1998, two men — Richard J. Elliott and Jonathan O’Mara — burned a cross in the yard of James Jubilee, an African-American neighbor of Elliott. In August 1998, Barry Elton Black leads a Ku Klux Klan rally on private property with the consent of the owner. Black burns a cross at the rally, which frightens a neighbor of the property owner.

Prosecutors charge all three men with violating Virginia’s cross-burning statute, which provides: “It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or to cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.”

All three men lose their criminal cases before the trial court. A jury convicts Elliott and Black in separate proceedings. O’Mara enters a conditional plea of guilty. This means he pleas guilty to the offense but reserves the right to challenge the constitutionality of the cross-burning law.

The court of appeals affirms the convictions of the three men in two separate cases. The appeals court reasons that the statute only proscribes true threats, a category of expression not protected by the First Amendment. The appeals court also determines that the burning of the cross is a form of fighting words, another category of speech not protected by the First Amendment.

On appeal, the Virginia Supreme Court consolidates, or combines, the two cases. In a 4-3 decision, the state supreme court reverses, finding the statute violates the First Amendment. The majority reasons that the statute regulates speech based on hostility to the underlying message of cross burning.

Reasoning: The burning of a cross is an act of expressive conduct that merits First Amendment review. However, the First Amendment is not absolute. There are certain limited categories of expression that can be prohibited, such as fighting words, obscenity and true threats. Burning a cross with the intent to intimidate is a type of true threat that can be constitutionally prohibited. “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 intimidate,” Justice Sandra Day O’Connor reasoned in her plurality opinion.

However, a majority of justices determined that respondent Barry Black’s conviction could not stand because the jury in his case was instructed that the burning of a cross was sufficient evidence of intent to intimidate. The justices determined that the part of the law holding that the burning of a cross is prima facie evidence of intent to intimidate is unconstitutional on its face. “The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself,” O’Connor wrote. This is problematical, according to the Court, because some individuals will burn the cross not to intimidate but to show support for their ideology or as a “symbol of group solidarity.”

Plurality Opinion: Justice Sandra Day O’Connor (joined by Chief Justice William Rehnquist, John Paul Stevens and Stephen Breyer)
Concurring Opinion: Justice John Paul Stevens
Concur/Dissent: Justice Antonin Scalia (joined in part by Justice Clarence Thomas)
Concur/Dissent: Justice David Souter (joined by Justices Anthony Kennedy and Ruth Bader Ginsburg)
Dissent: Justice Clarence Thomas
Justices’ Views: Justices O’Connor, Rehnquist, Stevens and Breyer ruled that a state could prohibit cross burning with intent to intimidate but voted to invalidate the prima facie provision that assumes that all cross burnings are evidence of intimidation.

Justice Scalia would have upheld the entire statute, including the prima facie provision. Justice Thomas would have upheld the entire statute and did not find it necessary to engage in a First Amendment analysis. According to Thomas, the act of a burning a cross is conduct, not speech.

Finally, Justices Souter, Kennedy and Ginsburg ruled the statute as a whole unconstitutional.

Quotable: “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. (O’Connor)

“So what appears to have happened is that the plurality has facially invalidated not ? 18.2-423, but its own hypothetical interpretation of ? 18.2-423, and has then remanded to the Virginia Supreme Court to learn the actual interpretation of ? 18.2-423. Words cannot express my wonderment at this virtuoso performance.” (Scalia)

“The cross may have been selected because of its special power to threaten, but it may have also been singled out because of disapproval of its message of white supremacy, either because a legislature thought white supremacy was a pernicious doctrine or because it found that dramatic, public espousal of it was a civic embarrassment.” (Souter)

“And just as one cannot burn down someone’s house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point.” (Thomas)

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