Atlanta Motel v United States, 379 U.S. 241 (1964)
FACTS:
Heart of Atlanta Motel runs a large motel (216 rooms) which restricts its clientele to white people. As a result of extensive out-of-state advertising, 75% of its clientele are transient interstate travelers, and it is located on Courtland St in such a manner as to allow ready access to interstate highways 75 and 85, and state highways 23 and 41.. Appellant sued for declaratory relief claiming Congress did not have the constitutional ability to prohibit racial discrimination in this place of public commerce. The District Court permanently enjoined appellant from racial discrimination.
ISSUE:
Is Title II of the Civil Rights Act of 1964 a valid exercise of Congress’ power under the Commerce Clause? (Yes)
Is the prohibition of racial discrimination in public accommodations a deprivation of property or liberty without due process of law? (No)
Is said prohibition a violation of the 13th Amendment as being “involuntary servitude”? (No)
REASONING:
(Clark)
Having established the Heart of Atlanta Motel fits into one of the four classes of businesses which are covered by Title II (as “any inn, hotel, motel… which provides lodging to transient guests…”), The Court continues to determine whether the Civil Rights Act of 1964 is constitutional as applied to this situation. The court acknowledges that the power to control commerce is sufficient for this issue, and continues to establish that a significant percentage of State to State transit is comprised of a non-white population. Because these interstate travelers require lodging, the lack of lodging would severely hinder interstate commerce. Additionally, interstate traffic is considered interstate commerce without question, and does not need to be commercial in nature.
The aforementioned power to “regulate” consists of any and all action of any nature because the power granted to Congress is plenary and requires only that said actions have a “real and substantial relation to the national interest”. The intent of Title II is to eliminate racial discrimination because overwhelming evidence provides it has a disruptive effect on commercial intercourse. Included in said plenary powers is the ability to promote interstate commerce, and to that end Congress can prohibit racial discrimination in relevant establishments at their discretion.
By citing the provisions of 32 states, the Court summarily dismisses the argument that the prohibition of racial discrimination is a taking of property without just compensation, along with the argument that the requirement for appellant to lodge non-white clientele is involuntary servitude.
CONCURRING:
(Black)
Justice Black concurs, and additionally cites the applicability of Title II to a similar case involving “Ollie’s Barbecue”. This case did not involve interstate travelers, but rather imported a significant portion (46%) of its meats and supplies from out of state. Both cases defeated racial discrimination with an application of Title II of the Civil Rights Act of 1964.
(Douglas)
Justice Douglas concurs, although expresses his reluctance to rely solely on the Commerce Clause, and offers the 14th Amendment as a better alternative.
(Goldberg)
Justice Goldberg concurs, and does not challenge the right application of the Commerce Clause, but would like to reiterate the purpose of the Civil Rights Act of 1964: to vindicate human dignity.
HOLDING:
Congress was within her Constitutional right to enact Title II of the Civil Rights Act of 1964 as a valid exercise of power granted to Congress by the Commerce Clause. By invoking Title II, the requirement for appellant to eliminate racial discrimination is a valid exercise of governmental power and is not a deprivation of property or liberty without due process or just compensation; it also does not constitute involuntary servitude as defined by the 13th Amendment’s intention.
Tuesday, October 31, 2006
Sunday, October 29, 2006
Gratz et al. v Bollinger et al.
Gratz et al. v Bollinger et al. (2003)
FACTS:
Jennifer Gratz and Patrick Hamacher, both Caucasian Michigan residents, applied for admission to the University of Michigan’s College of Literature, Science, and the Arts. Gratz applied and was denied in 1995, and subsequently enrolled at the University of Michigan at Dearborn (graduating in 1999). Hamacher applied and was denied in 1997, and he enrolled at the Michigan State University (graduating in 2001). During Gratz’s application year, the University considered many factors including GPA and ACT/SAT scores to place applicant on an admit/reject/delay/postpone table; applicants’ admission outcomes were based upon their racial or ethnic status. During Hamacher’s application year, the University modified the system, explicitly placing even further emphasis on minority status by increasing his or her qualification score. Starting 1998, the University replaced the system with a 150 point scale system, allowing 20 points to all applicants of an underrepresented racial or ethnic minority group. Applicants filed in the Eastern District of Michigan’s U.S. District Court for compensatory and punitive damages for past violations, declaratory relief, an injunction prohibiting the University from continuing to discriminate on the basis of race, and an order requiring the LSA to offer Hamacher admission as a transfer student. The District Court granted summary judgment to applicants with respect to the admission policies from 1995 to 1998, summary judgment to respondents with respect to the policies from 1999 to 2000, and denied applicants injunctive relief.
ISSUE:
Do petitioners have standing to seek declaratory and injunctive relief? (Yes)
Do the University’s policies violate the Equal Protection Clause of the 14th Amendment (and therefore also Title VI) by failing strict scrutiny? (Yes)
REASONING:
(Rehnquist)
While considering the facts, the Court has determined that the “injury in fact” in an equal protection case is the denial of equal treatment itself, not the ultimate inability to obtain a benefit if the inequality had not existed. In this specific instance, the “’injury in fact’ is the inability to compete on an equal footing” in the application process, not the loss of an admittance. By demonstrating he was “able and ready” to apply as a transfer student when the University ceases its application of race in admissions, Hamacher has standing to seek prospective relief. The Court then considered whether Hamacher may act as the class representative in a class action suit; the District Court allowed the class, determining it satisfied the requirements of numerosity, commonality, and typicality. The Court agreed, furthering that it is important to treat the case as a class because if kept individual, each claim risks becoming moot.
The Court continues and rejects the applicant’s initial argument of a 14th Amendment violation because diversity is too open-ended to constitute a compelling interest capable of surviving strict scrutiny on the rationale set forth in Grutter v Bollinger. The Court rejects the respondent’s reply (the ability for the University to individually consider applicants, thereby fulfilling Justice Powell’s intent in Bakke) to petitioner’s claim (that the current policy is not “narrowly tailored to achieve” a compelling state interest). The Court argues that the automatic distribution of 20 points to applicants of the outlined minority groups has the effect of making “the factor of race decisive”, whereas Justice Powell’s example in Bakke explicitly states race can be considered without being decisive. The University’s “individualized review” is not sufficient in this instance, because it is applied only after the automatic distribution of 20 points, thereby making race a decisive factor in nearly every minority application.
The Court also considers respondent’s contention that the large volume of applications precludes individualized consideration, and rejects administrative inconvenience as an excuse to utilize an unconstitutional system.
CONCURRING:
(O’Connor)
Justice O’Connor emphasizes the point that the 20 point bonus is massive in relative comparison to the other “soft variables” the University considers. Also, Justice O’Connor argues the Admissions Review Committee, the only party able to provide an individualized review, can be considered an afterthought to the process instead of integral. The system is “a non-individualized, mechanical one”.
(Thomas)
Justice Thomas holds that the use of racial discrimination is prohibited by the Equal Protection Clause, and that the University’s policies as they exist do not allow for the “consideration of nonracial distinctions among underrepresented minority applicants”.
(Breyer)
Justice Breyer concurs with the Court’s reversal of the District Court’s decision, but dissents with the court’s opinion. Justice Breyer concurs with Justice Ginsburg’s dissenting opinion in that policies of inclusion and exclusion are different, and inclusive policies are more likely to further individual equality.
DISSENTING:
(Stevens, Souter)
Justice Stevens believes that the petitioners would not receive any benefit from prospective relief because neither are applying as freshmen, and without personal stake in the suit, neither have standing. Additionally, the petitioners’ cannot demonstrate imminent threat of future injury, and so they cannot seek injunctive relief. Because Hamacher did not actually apply as a transfer student at the time of the initial suit, Justice Stevens contends his claim of future injury is “conjectural or hypothetical” rather than “real and immediate”. Neither is there any mention of the transfer student application policy at the District Court level; only the freshman policy was considered, and thusly “Hamacher cannot base his right to complain about the freshman admissions policy on his hypothetical injury under a wholly separate transfer policy”. Even further, Justice Stevens hypothesizes that ordering the University to change freshmen admission policies would not affect the transfer policy. Justice Stevens also claims the applicants lack Article III standing, as either representative fulfills the personal-stake requirement.
(Souter, Ginsburg)
Justice Souter dissents with both the applicants’ holding, and the Court’s judgment on the case’s merits. Justice Souter argues that the “petitioners did not raise a narrow tailoring challenge to the transfer policy”, and Hamacher does not have standing to challenge the freshmen admissions policy. Additionally, Justice Souter reinforces that the system as it stands is not a quota system as struck down in Bakke; if anything, the policy is word-for-word in compliance with the Bakke decision in that “all pertinent elements of diversity” are considered, although not in the same weight (this is allowed by Bakke as well). Souter claims that all the other aspects considered in admissions are given a stated numeric value of “points”, so assigning points for minority status is in keeping with that system. Also, the applicants did not convincingly show that the University guarantees every minority applicants a higher ranking than non-minority applicants, and so the 20 points does not become a decisive factor. Regardless, because the Court was given no information about the Admissions Review Committee, Souter claims the Court cannot judge the entire admissions process based on the point system.
(Ginsburg, Souter)
Justice Ginsburg begins by stating our society has just recently passed an age of oppressive discrimination, and that a distinction should be considered between policies of exclusion and inclusion (but recognizes that any race-conscious measure merits careful inspection). Ginsburg contends that because the University has a large applicant pool with only few admitted slots, and that the number of “white applicants greatly outnumber minority applicants”, that any sort of preference for minority applicants, including the point system, will not drastically diminish the odds for a white applicant’s admission. For Ginsburg, it is necessary to proactively increase the enrollment of minority students in order to combat the racial oppression still in our society, and it is better to explicitly grant preference to minorities in the application rather than insinuating it through other disguises.
HOLDING:
The automatic distribution of points based on minority status in a point-based admissions policy is not narrowly tailored to achieve educational diversity, which the Court has found to be a compelling state interest. Applicants must be considered as individuals; each applicant’s racial or ethnic background contributes to the individual, and it must be the individual, not the racial category, which must be considered during application review, regardless of administrative inconvenience. By making race a decisive factor for virtually every minority applicant, the policy violates the Equal Protection Clause of the 14th Amendment, as well as Title VI and 42 U.S.C. §1981.
FACTS:
Jennifer Gratz and Patrick Hamacher, both Caucasian Michigan residents, applied for admission to the University of Michigan’s College of Literature, Science, and the Arts. Gratz applied and was denied in 1995, and subsequently enrolled at the University of Michigan at Dearborn (graduating in 1999). Hamacher applied and was denied in 1997, and he enrolled at the Michigan State University (graduating in 2001). During Gratz’s application year, the University considered many factors including GPA and ACT/SAT scores to place applicant on an admit/reject/delay/postpone table; applicants’ admission outcomes were based upon their racial or ethnic status. During Hamacher’s application year, the University modified the system, explicitly placing even further emphasis on minority status by increasing his or her qualification score. Starting 1998, the University replaced the system with a 150 point scale system, allowing 20 points to all applicants of an underrepresented racial or ethnic minority group. Applicants filed in the Eastern District of Michigan’s U.S. District Court for compensatory and punitive damages for past violations, declaratory relief, an injunction prohibiting the University from continuing to discriminate on the basis of race, and an order requiring the LSA to offer Hamacher admission as a transfer student. The District Court granted summary judgment to applicants with respect to the admission policies from 1995 to 1998, summary judgment to respondents with respect to the policies from 1999 to 2000, and denied applicants injunctive relief.
ISSUE:
Do petitioners have standing to seek declaratory and injunctive relief? (Yes)
Do the University’s policies violate the Equal Protection Clause of the 14th Amendment (and therefore also Title VI) by failing strict scrutiny? (Yes)
REASONING:
(Rehnquist)
While considering the facts, the Court has determined that the “injury in fact” in an equal protection case is the denial of equal treatment itself, not the ultimate inability to obtain a benefit if the inequality had not existed. In this specific instance, the “’injury in fact’ is the inability to compete on an equal footing” in the application process, not the loss of an admittance. By demonstrating he was “able and ready” to apply as a transfer student when the University ceases its application of race in admissions, Hamacher has standing to seek prospective relief. The Court then considered whether Hamacher may act as the class representative in a class action suit; the District Court allowed the class, determining it satisfied the requirements of numerosity, commonality, and typicality. The Court agreed, furthering that it is important to treat the case as a class because if kept individual, each claim risks becoming moot.
The Court continues and rejects the applicant’s initial argument of a 14th Amendment violation because diversity is too open-ended to constitute a compelling interest capable of surviving strict scrutiny on the rationale set forth in Grutter v Bollinger. The Court rejects the respondent’s reply (the ability for the University to individually consider applicants, thereby fulfilling Justice Powell’s intent in Bakke) to petitioner’s claim (that the current policy is not “narrowly tailored to achieve” a compelling state interest). The Court argues that the automatic distribution of 20 points to applicants of the outlined minority groups has the effect of making “the factor of race decisive”, whereas Justice Powell’s example in Bakke explicitly states race can be considered without being decisive. The University’s “individualized review” is not sufficient in this instance, because it is applied only after the automatic distribution of 20 points, thereby making race a decisive factor in nearly every minority application.
The Court also considers respondent’s contention that the large volume of applications precludes individualized consideration, and rejects administrative inconvenience as an excuse to utilize an unconstitutional system.
CONCURRING:
(O’Connor)
Justice O’Connor emphasizes the point that the 20 point bonus is massive in relative comparison to the other “soft variables” the University considers. Also, Justice O’Connor argues the Admissions Review Committee, the only party able to provide an individualized review, can be considered an afterthought to the process instead of integral. The system is “a non-individualized, mechanical one”.
(Thomas)
Justice Thomas holds that the use of racial discrimination is prohibited by the Equal Protection Clause, and that the University’s policies as they exist do not allow for the “consideration of nonracial distinctions among underrepresented minority applicants”.
(Breyer)
Justice Breyer concurs with the Court’s reversal of the District Court’s decision, but dissents with the court’s opinion. Justice Breyer concurs with Justice Ginsburg’s dissenting opinion in that policies of inclusion and exclusion are different, and inclusive policies are more likely to further individual equality.
DISSENTING:
(Stevens, Souter)
Justice Stevens believes that the petitioners would not receive any benefit from prospective relief because neither are applying as freshmen, and without personal stake in the suit, neither have standing. Additionally, the petitioners’ cannot demonstrate imminent threat of future injury, and so they cannot seek injunctive relief. Because Hamacher did not actually apply as a transfer student at the time of the initial suit, Justice Stevens contends his claim of future injury is “conjectural or hypothetical” rather than “real and immediate”. Neither is there any mention of the transfer student application policy at the District Court level; only the freshman policy was considered, and thusly “Hamacher cannot base his right to complain about the freshman admissions policy on his hypothetical injury under a wholly separate transfer policy”. Even further, Justice Stevens hypothesizes that ordering the University to change freshmen admission policies would not affect the transfer policy. Justice Stevens also claims the applicants lack Article III standing, as either representative fulfills the personal-stake requirement.
(Souter, Ginsburg)
Justice Souter dissents with both the applicants’ holding, and the Court’s judgment on the case’s merits. Justice Souter argues that the “petitioners did not raise a narrow tailoring challenge to the transfer policy”, and Hamacher does not have standing to challenge the freshmen admissions policy. Additionally, Justice Souter reinforces that the system as it stands is not a quota system as struck down in Bakke; if anything, the policy is word-for-word in compliance with the Bakke decision in that “all pertinent elements of diversity” are considered, although not in the same weight (this is allowed by Bakke as well). Souter claims that all the other aspects considered in admissions are given a stated numeric value of “points”, so assigning points for minority status is in keeping with that system. Also, the applicants did not convincingly show that the University guarantees every minority applicants a higher ranking than non-minority applicants, and so the 20 points does not become a decisive factor. Regardless, because the Court was given no information about the Admissions Review Committee, Souter claims the Court cannot judge the entire admissions process based on the point system.
(Ginsburg, Souter)
Justice Ginsburg begins by stating our society has just recently passed an age of oppressive discrimination, and that a distinction should be considered between policies of exclusion and inclusion (but recognizes that any race-conscious measure merits careful inspection). Ginsburg contends that because the University has a large applicant pool with only few admitted slots, and that the number of “white applicants greatly outnumber minority applicants”, that any sort of preference for minority applicants, including the point system, will not drastically diminish the odds for a white applicant’s admission. For Ginsburg, it is necessary to proactively increase the enrollment of minority students in order to combat the racial oppression still in our society, and it is better to explicitly grant preference to minorities in the application rather than insinuating it through other disguises.
HOLDING:
The automatic distribution of points based on minority status in a point-based admissions policy is not narrowly tailored to achieve educational diversity, which the Court has found to be a compelling state interest. Applicants must be considered as individuals; each applicant’s racial or ethnic background contributes to the individual, and it must be the individual, not the racial category, which must be considered during application review, regardless of administrative inconvenience. By making race a decisive factor for virtually every minority applicant, the policy violates the Equal Protection Clause of the 14th Amendment, as well as Title VI and 42 U.S.C. §1981.
Saturday, October 28, 2006
Virginia v Black et al.
Virginia v Black et al.
FACTS:
Barry Black, Richard Elliott, and Jonathan O’Mara were separately convicted for burning a cross in the state of Virginia, which has a statute prohibiting such. Barry Black, leading a Ku Klux Klan rally on August 22, 1998 in his privately owned property in Carroll County, Virginia, rallied the group around a cross at the conclusion of the meeting; the cross then became aflame. A sheriff witnessing the cross burning approached the rally and Black claimed responsibility for the burning. At his trial the jury was told the intent required to convict is evident in the burning of the cross itself; Black was convicted and the Virginia Ct. of Appeals upheld the conviction. Richard Elliott, Jonathan O’Mara, and a third unnamed individual attempted to burn a cross on James Jubilee’s yard in Virginia Beach, Virginia on May 2, 1998, in retaliation for Jubilee inquiring about shots being fired from Elliott’s back yard earlier. Jubilee is an African-American, but Elliott and O’Mara were not affiliated with the Ku Klux Klan. O’Mara plead guilty to attempted cross burning and conspiracy to commit cross burning; a trial jury convicted Elliott of attempted cross burning. Both convictions were affirmed by the Virginia Ct. of Appeals. Upon appeal to the Virginia Supreme Ct, it consolidated the cases; all cases claimed the statute was unconstitutional prima facie. The court found the statute unconstitutional and the prima facie evidence provision overly broad.
ISSUE:
Is the burning of a cross, when used to intimidate, a “true threat”? (Yes)
Does the First Amendment allow states to restrict cross burning when the act is clearly intended to intimidate? (Yes)
Is the state required to consider all contextual factors to determine whether or not a particular instance of cross burning is performed with an intent to intimidate? (Yes)
REASONING:
(O’Connor)
By reviewing the history of the Ku Klux Klan, Justice O’Connor articulates the historical usage of the burning cross both as an intimidation tool, and also as a non-violent symbol upon which the Klan members could rally. Although O’Connor also reviews historical instances where the burning cross did not have such an insidious connotation, the argument is concluded by stating it is a “symbol of hate”, and that because of the strong association it carries, when used as a tool of intimidation it is a severe message. This argument is necessary in order to consider the constitutionality of the statute in question. O’Connor reviews the exceptions to the First Amendment, among which are “fighting words… (and) true threat(s)”1; true threats encompass intimidation when that intimidation threatens the victim with harm or death. The lower Virginia Supreme Ct. relied on R. A. V. v City of St. Paul to declare the statute unconstitutional, but O’Connor clarifies by distinguishing broad content-based discrimination from bans against particular types of threat, which the burning of a cross is. By finding the statute is consistent with R. A. V., O’Connor continues to declare the statute constitutional under the First Amendment.
The second point of contention is the prima facie evidence clause, which states that the burning of a cross inherently implicates an intent to intimidate a party. The statute makes no attempt to distinguish cross burnings intended to intimidate from cross burnings which incites anger, but not intimidation. Because, as the statute is currently worded, the State is allowed to prosecute anyone burning a cross, even if it is a protected expression of “political speech”2, the entire statute is unconstitutional. Every case must be reviewed individually to determine if the cross burning is intended to intimidate instead of summarily banning all cross burning.
CONCURRING:
(Stevens)
Justice Stevens did not consider the history of the Ku Klux Klan and the associations it formed as a result; rather he considers anything “with an intent to intimidate” to be unprotected by the First Amendment, whether it is cross burning or other types of conduct3. Because it is unprotected, the state’s statues are constitutional.
DISSENTING:
(Thomas)
Justice Thomas considers that the burning of a cross is, at its first and foremost, an act of terrorism, unquestionably done to instill fear. Thomas considers the history of the statute; it was introduced as a bill to combat “the burning of crosses and other similar evidences of terrorism”4. Accordingly, the intent of the bill was to criminalize conduct, not expression, and that is what the statute does. Because it does not criminalize expression, it does not require a First Amendment test, but even if it did, because the behavior is so reprehensible in and of itself, the intent is implied simply by committing the act5. Thomas draws parallels to other laws, such as those related to statutory rape, and claims the Due Process clause is all that is necessary to accept this statute. Also, Thomas considers the expression in non-intimidation burning, but dismisses it by arguing that the burning cross is such a potent image that it imposes emotional distress on people, intended or otherwise.
CONCURRING/DISSENTING IN PART:
(Scalia, Thomas)
Justice Scalia concurs in the decision to vacate and remand for Elliott and O’Mara, but believes Black should not have his indictment dismissed, and be allowed to be retried. Scalia delineates subtlety in the language of the statue and the meaning of “prima facie evidence”; simply proving a cross was burned is enough to demonstrate intent, until rebuttal evidence is provided. Scalia considers the core provision of the statute, which states explicitly the burning of the cross must have an intent of intimidation, and therefore dismisses the overbreadth analysis as the statute is very narrowly designed to affect a group that the State has the right to reach. Scalia also considers the people who would be incorrectly convicted under the statute; they would need to fulfill four requirements, that they “burn a cross in public view… do not intend to intimidate… are nonetheless charged and prosecuted, and… refuse to present a defense”6. Because the overbreadth doctrine requires that it is “not only real, but substantial”, and the scope is relatively narrow, Scalia rejects the overbreadth analysis as a means to dismiss the “prima facie evidence clause”.
(Souter, Kennedy, Ginsburg)
Justice Souter believes the statute violates the First Amendment, and accordingly all three respondents should have their indictments dismissed. Souter considers that the statute does not qualify for any R. A. V. exceptions. The “virulent exception” examples provided in R. A. V. do not match our situation, because it requires the “entire class of speech… (to be) proscribable”7, which it was already demonstrated not to be. Furthermore, it fails the R. A. V. rule that there be no possibility that the State’s interest is to suppress an idea; the “prima facie evidence” rule broadens the definition enough to presume the State is using the statute as a method of eliminating this “distasteful”8 expression. Accordingly, having failed all R. A. V. rules and exceptions, and failing to prove a compelling state interest (as a content-neutral statute would have the same effect), it must be dismissed as unconstitutional.
HOLDING:
The First Amendment does not protect all speech and expression; among those excepted are true threats, those acts which are clearly meant to intimidate and threaten harm or death. Because cross burning has such a deeply rooted history in violence and hate, when a cross is burned with intent to intimidate, the State can prosecute such offenses safely protected by the exceptions granted in the First Amendment. However, because one can also burn a cross not to intimidate, but make a symbolic statement (a right protected by the First Amendment), it is necessary to consider each case individually, and all statutes which broadly make any burning of crosses illegal must be deemed unconstitutional.
FACTS:
Barry Black, Richard Elliott, and Jonathan O’Mara were separately convicted for burning a cross in the state of Virginia, which has a statute prohibiting such. Barry Black, leading a Ku Klux Klan rally on August 22, 1998 in his privately owned property in Carroll County, Virginia, rallied the group around a cross at the conclusion of the meeting; the cross then became aflame. A sheriff witnessing the cross burning approached the rally and Black claimed responsibility for the burning. At his trial the jury was told the intent required to convict is evident in the burning of the cross itself; Black was convicted and the Virginia Ct. of Appeals upheld the conviction. Richard Elliott, Jonathan O’Mara, and a third unnamed individual attempted to burn a cross on James Jubilee’s yard in Virginia Beach, Virginia on May 2, 1998, in retaliation for Jubilee inquiring about shots being fired from Elliott’s back yard earlier. Jubilee is an African-American, but Elliott and O’Mara were not affiliated with the Ku Klux Klan. O’Mara plead guilty to attempted cross burning and conspiracy to commit cross burning; a trial jury convicted Elliott of attempted cross burning. Both convictions were affirmed by the Virginia Ct. of Appeals. Upon appeal to the Virginia Supreme Ct, it consolidated the cases; all cases claimed the statute was unconstitutional prima facie. The court found the statute unconstitutional and the prima facie evidence provision overly broad.
ISSUE:
Is the burning of a cross, when used to intimidate, a “true threat”? (Yes)
Does the First Amendment allow states to restrict cross burning when the act is clearly intended to intimidate? (Yes)
Is the state required to consider all contextual factors to determine whether or not a particular instance of cross burning is performed with an intent to intimidate? (Yes)
REASONING:
(O’Connor)
By reviewing the history of the Ku Klux Klan, Justice O’Connor articulates the historical usage of the burning cross both as an intimidation tool, and also as a non-violent symbol upon which the Klan members could rally. Although O’Connor also reviews historical instances where the burning cross did not have such an insidious connotation, the argument is concluded by stating it is a “symbol of hate”, and that because of the strong association it carries, when used as a tool of intimidation it is a severe message. This argument is necessary in order to consider the constitutionality of the statute in question. O’Connor reviews the exceptions to the First Amendment, among which are “fighting words… (and) true threat(s)”1; true threats encompass intimidation when that intimidation threatens the victim with harm or death. The lower Virginia Supreme Ct. relied on R. A. V. v City of St. Paul to declare the statute unconstitutional, but O’Connor clarifies by distinguishing broad content-based discrimination from bans against particular types of threat, which the burning of a cross is. By finding the statute is consistent with R. A. V., O’Connor continues to declare the statute constitutional under the First Amendment.
The second point of contention is the prima facie evidence clause, which states that the burning of a cross inherently implicates an intent to intimidate a party. The statute makes no attempt to distinguish cross burnings intended to intimidate from cross burnings which incites anger, but not intimidation. Because, as the statute is currently worded, the State is allowed to prosecute anyone burning a cross, even if it is a protected expression of “political speech”2, the entire statute is unconstitutional. Every case must be reviewed individually to determine if the cross burning is intended to intimidate instead of summarily banning all cross burning.
CONCURRING:
(Stevens)
Justice Stevens did not consider the history of the Ku Klux Klan and the associations it formed as a result; rather he considers anything “with an intent to intimidate” to be unprotected by the First Amendment, whether it is cross burning or other types of conduct3. Because it is unprotected, the state’s statues are constitutional.
DISSENTING:
(Thomas)
Justice Thomas considers that the burning of a cross is, at its first and foremost, an act of terrorism, unquestionably done to instill fear. Thomas considers the history of the statute; it was introduced as a bill to combat “the burning of crosses and other similar evidences of terrorism”4. Accordingly, the intent of the bill was to criminalize conduct, not expression, and that is what the statute does. Because it does not criminalize expression, it does not require a First Amendment test, but even if it did, because the behavior is so reprehensible in and of itself, the intent is implied simply by committing the act5. Thomas draws parallels to other laws, such as those related to statutory rape, and claims the Due Process clause is all that is necessary to accept this statute. Also, Thomas considers the expression in non-intimidation burning, but dismisses it by arguing that the burning cross is such a potent image that it imposes emotional distress on people, intended or otherwise.
CONCURRING/DISSENTING IN PART:
(Scalia, Thomas)
Justice Scalia concurs in the decision to vacate and remand for Elliott and O’Mara, but believes Black should not have his indictment dismissed, and be allowed to be retried. Scalia delineates subtlety in the language of the statue and the meaning of “prima facie evidence”; simply proving a cross was burned is enough to demonstrate intent, until rebuttal evidence is provided. Scalia considers the core provision of the statute, which states explicitly the burning of the cross must have an intent of intimidation, and therefore dismisses the overbreadth analysis as the statute is very narrowly designed to affect a group that the State has the right to reach. Scalia also considers the people who would be incorrectly convicted under the statute; they would need to fulfill four requirements, that they “burn a cross in public view… do not intend to intimidate… are nonetheless charged and prosecuted, and… refuse to present a defense”6. Because the overbreadth doctrine requires that it is “not only real, but substantial”, and the scope is relatively narrow, Scalia rejects the overbreadth analysis as a means to dismiss the “prima facie evidence clause”.
(Souter, Kennedy, Ginsburg)
Justice Souter believes the statute violates the First Amendment, and accordingly all three respondents should have their indictments dismissed. Souter considers that the statute does not qualify for any R. A. V. exceptions. The “virulent exception” examples provided in R. A. V. do not match our situation, because it requires the “entire class of speech… (to be) proscribable”7, which it was already demonstrated not to be. Furthermore, it fails the R. A. V. rule that there be no possibility that the State’s interest is to suppress an idea; the “prima facie evidence” rule broadens the definition enough to presume the State is using the statute as a method of eliminating this “distasteful”8 expression. Accordingly, having failed all R. A. V. rules and exceptions, and failing to prove a compelling state interest (as a content-neutral statute would have the same effect), it must be dismissed as unconstitutional.
HOLDING:
The First Amendment does not protect all speech and expression; among those excepted are true threats, those acts which are clearly meant to intimidate and threaten harm or death. Because cross burning has such a deeply rooted history in violence and hate, when a cross is burned with intent to intimidate, the State can prosecute such offenses safely protected by the exceptions granted in the First Amendment. However, because one can also burn a cross not to intimidate, but make a symbolic statement (a right protected by the First Amendment), it is necessary to consider each case individually, and all statutes which broadly make any burning of crosses illegal must be deemed unconstitutional.
Subscribe to:
Posts (Atom)