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.