Caseflicks

Supreme Court of the United States • 2003

Virginia v. Black

538 U.S. 343 | 123 S. Ct. 1536 | 155 L. Ed. 2d 535 | 2003 U.S. LEXIS 2715

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case allows States to punish cross burning as a true threat when done to intimidate, but bars them from presuming that every cross burning is intimidation without examining its context and purpose.

Background

Virginia made it a felony to burn a cross on another's property, a highway, or other public place with the intent to intimidate a person or group. The statute further provided that any cross burning was prima facie evidence of an intent to intimidate.

Barry Black led a Ku Klux Klan rally on private property, where members burned a cross at the end of the event. The trial court instructed the jury that it could infer the required intent from the cross burning alone, and Black was convicted. In a separate incident, Richard Elliott and Jonathan O'Mara attempted to burn a cross in the yard of Elliott's African-American neighbor after a dispute involving gunfire from Elliott's property. Elliott was convicted after trial, and O'Mara pleaded guilty while preserving his constitutional challenge.

The Supreme Court of Virginia consolidated the appeals and held the statute facially unconstitutional. It reasoned that the statute impermissibly selected cross burning because of its distinctive message, contrary to R. A. V. v. St. Paul, and that the prima facie evidence provision was overbroad because it chilled protected expression. The United States Supreme Court granted review.

Issues

Issue #1

Whether the First Amendment permits Virginia to prohibit cross burning carried out with the intent to intimidate.

Holding

Yes. A State may constitutionally prohibit cross burning done with an intent to intimidate because such intimidation is a form of unprotected true threat.

Reasoning

The First Amendment generally protects even offensive and hateful ideas, including symbolic expression. But its protection is not absolute. States may regulate narrowly defined categories of unprotected speech, including true threats: serious expressions of an intent to commit unlawful violence against a particular person or group.

Intimidation is a true threat when the speaker directs a threat at a person or group with the intent of placing the victim in fear of bodily harm or death. The speaker need not actually intend to carry out the threatened violence. The law may protect people from the fear and disruption caused by a threat, as well as from the possibility that violence will occur.

Cross burning has a dual historical meaning. It can be an ideological symbol or a ritual of group solidarity, but it has also been used by the Ku Klux Klan and others as a signal of impending violence and terror. When used to intimidate a targeted person or group, a burning cross is an especially powerful form of true threat.

R. A. V. did not forbid every content-based distinction within an otherwise proscribable category of speech. A State may distinguish within such a category when the distinction rests on the very reason the broader category is unprotected. Virginia could therefore single out cross burning with an intent to intimidate because its history makes it a particularly virulent means of instilling fear of bodily harm. The statute did not turn on the victim's race, religion, gender, or viewpoint; it covered intimidation by cross burning regardless of the offender's motive or the target's identity.

Issue #2

Whether the statute's provision making any cross burning prima facie evidence of an intent to intimidate is constitutional.

Holding

No. As construed through Virginia's model jury instruction, the prima facie evidence provision is facially unconstitutional because it creates an unacceptable risk of punishing protected expression.

Reasoning

The model instruction used in Black's case told jurors that cross burning by itself was sufficient evidence from which they could infer the required intent. The plurality treated that instruction as a binding construction of the statutory provision for purposes of this facial challenge, particularly because it was the Commonwealth's model instruction and the state high court had not disavowed it.

The State may punish cross burning only when it is intended as intimidation. But cross burning alone does not establish that purpose. A cross may be burned as political advocacy, as a symbol of ideological solidarity at a rally, or in artistic expression, none of which necessarily involves a true threat.

By allowing the fact of cross burning itself to supply the evidence of intent, the provision blurred the constitutionally essential line between threatening intimidation and protected ideological expression. It could permit arrest, prosecution, and conviction based on the burning alone, particularly where a defendant offered no defense, while also skewing jurors toward finding intimidation despite ambiguous evidence.

The provision did not account for context. It did not distinguish a cross directed at a neighbor's home from one used at a political rally, a cross burning without the owner's permission from one held with permission, or an intimidating act from a purely expressive one. The First Amendment does not permit this evidentiary shortcut where context is necessary to determine whether the act was a true threat.

Issue #3

Whether the invalid prima facie evidence provision was severable from the statute and what disposition should follow for the respondents.

Holding

The Court did not decide severability or whether Elliott and O'Mara could be retried; it left those questions to the Virginia courts on remand. Black's conviction could not stand under the instruction given in his case.

Reasoning

The Court affirmed the judgment setting aside Black's conviction because his jury received the unconstitutional instruction. That instruction allowed the jury to infer intent to intimidate from cross burning alone, without the contextual showing the First Amendment requires.

As to Elliott and O'Mara, the Court vacated the Virginia Supreme Court's judgment and remanded. Their cases raised unresolved questions of Virginia law, including whether the prima facie evidence provision could receive a narrowing construction or be severed from the statute, and whether further prosecution under the remaining law was permissible.

Concurrences

Justice Stevens

Reasoning

Justice Stevens agreed that cross burning with an intent to intimidate is an unprotected threat. In his view, that conclusion alone justified upholding the statute's core prohibition, even though it singled out one form of threatening expressive conduct rather than banning every possible form of threat.

Dissents

Justice Scalia

Reasoning

Justice Scalia agreed that Virginia may ban cross burning done with an intent to intimidate and agreed that Elliott's and O'Mara's cases should be vacated and remanded for an authoritative state-law construction of the prima facie evidence provision. He disagreed, however, with facially invalidating that provision on the basis of the model jury instruction used in Black's trial.

In Justice Scalia's view, Virginia's established meaning of prima facie evidence was orthodox and limited: proof of a public cross burning could establish a prima facie case of intent until rebutted, but it did not relieve the jury of its duty to weigh all the evidence. Properly understood, the provision did not permit the jury to ignore rebuttal evidence or shift the ultimate burden of proof from the Commonwealth.

Justice Scalia also argued that the plurality had not shown substantial overbreadth. The possible improper cases identified by the plurality involved a narrow class of defendants who burned a cross without intent to intimidate, were prosecuted, and then declined to offer rebuttal evidence. That speculative set of applications did not justify facial invalidation of a statute with a plainly legitimate core.

Although Justice Scalia agreed that Black's instruction was constitutionally defective, he would have treated the error as one in the instruction rather than the statute. He therefore would have allowed Virginia to retry Black rather than affirming dismissal of his indictment.

Justice Souter

Reasoning

Justice Souter agreed that the statute made a content-based distinction within the category of proscribable threatening expression, but he concluded that the distinction was unconstitutional under R. A. V. In his view, selecting cross burning did not merely target a more dangerous means of intimidation; it also singled out a symbol closely associated with an ideological message of white supremacy.

The R. A. V. exception for especially virulent speech, Justice Souter reasoned, applies when a distinction tracks only the reason a category is unprotected and does not create a meaningful danger of viewpoint discrimination. A cross-burning prohibition did not fit that model because the symbol carries an ideological message both when it intimidates and when it is used only for expressive purposes.

The prima facie evidence provision reinforced the danger that Virginia was suppressing a disfavored idea rather than merely regulating threats. By tilting juries toward conviction in ambiguous cases, the provision tended to draw nonthreatening ideological expression into the statute's reach. That tendency made it impossible to conclude that the law posed no realistic danger of official suppression of ideas.

Justice Souter would have held the entire statute unconstitutional as applied at the time of all three respondents' conduct. He would have affirmed the Virginia Supreme Court's dismissal of every indictment, rather than remanding Elliott's and O'Mara's cases for possible further proceedings.

Justice Thomas

Reasoning

Justice Thomas regarded cross burning with an intent to intimidate as conduct rather than protected expression. Given the Klan's long use of burning crosses as a tool of terror, he concluded that Virginia's legislature was targeting a particularly vicious method of intimidation, not suppressing a racist viewpoint or political message.

Even if the First Amendment applied, Justice Thomas would uphold the prima facie evidence provision. He characterized it as a permissive inference, not a mandatory presumption: the jury remained free to accept or reject the inference, and the Commonwealth retained the burden of proving every element beyond a reasonable doubt.

Justice Thomas believed there was a rational connection between burning a cross and an intent to intimidate because, in American history and culture, a burning cross has almost invariably signaled threatened violence. He therefore saw neither a due process problem nor an unconstitutional burden on expression and would have upheld the statute in full.