Virginia v. Black Case Brief

Facts of the case

Barry Black, Richard Elliott, and Jonathan O’Mara were convicted separately of violating a Virginia statute that makes it a felony for any person…, with the intent of intimidating any person or group…, to burn…a cross on the property of another, a highway or other public place,and specifies that any such burning…shall be prima facie evidence of an intent to intimidate a person or group.At trial, Black objected on First Amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required intent to intimidatecould be inferred. He was found guilty. O’Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. In Elliott’s trial, the judge did not give an instruction on the statute’s prima facie evidence provision. Ultimately, the Virginia Supreme Court held, among other things, that the cross-burning statute is unconstitutional on its face and that the prima facie evidence provision renders the statute overbroad because the probability of prosecution under the statute chills the expression of protected speech.

Why is the case important?

Black (D) was convicted under Virginia’s (P) cross-burning statute. He argued that it was an unconstitutional law because under it any cross-burning was treated as prima facie evidence of the intention to create fear in another.


Is the provision in this or any other state’s cross-burning statute unconstitutional in viewing any such incident as prima facie evidence of having an intention to create fear in, or a threat to another person or group?


(O’Connor, J.) Yes. A provision in a cross-burning statute of any state which declares that an incident of this nature is an expression of the intent to threaten or otherwise cause fear in another person or group is a violation of the constitution. The burning of a cross is always a hate symbol, though it may sometimes also include the idea of threat. The threat may at times be the predominant message. The consistent view of the Supreme Court on intimidatory speech has been that the government has the authority to control some classes of expression if the constitution so calls for it, and also that intimidation is a type of real threat if the word is used in the sense that the constitution prohibits. In this sense, Virginia may prohibit the burning of a cross done with the intent to threaten because it is a very deadly threat. This is not a violation of the First Amendment’s guarantee of free speech. Even more, Virginia has the freedom to choose to enact laws against this particular form of intimidation instead of against all intimidatory speech, just because cross-burning has a long history of being followed soon afterward by violence. But in the statute under consideration, the provision is that any burning of a cross is obvious evidence that there is an intent to threaten a group or individual. This in fact removes the reason for the state to ban cross-burning as a sign of threat. With this provision the jury may straightaway convict the defendant of the offense in any case where the defendant chooses not to offer a defense, as is his right under law, instead of having to weigh the evidence before them in the light of the law. Such a provision would therefore create a very high possibility that a citizen’s ideas would be suppressed instead of expressed, by the probability of conviction. It is necessary to separate the expression of anger or hatred from the expression of an intent to cause harm or threat as the ground of lawful conviction. The First Amendment does not allow feelings to be interpreted as an intent to perform unlawful actions. The decision is affirmed and the case remanded.


The United States Supreme Court held, however, that the prohibition of cross-burning with the intent to intimidate under § 18.2-423 was not unconstitutional since it banned conduct rather than expression. While cross-burning could constitute expression, such expressive conduct was not proscribed unless it was done with the intent to intimidate, and targeting cross-burning was reasonable because burning a cross was historically a particularly virulent form of intimidation. However, a plurality of the Supreme Court asserted that the statutory provision that any cross-burning was prima facie evidence of intent to intimidate, which was interpreted under state law to mean that cross-burning by itself could support a conviction without further evidence of intent, was an unconstitutional restraint on speech.

  • Advocates: Rodney A. Smolla Argued the cause for the respondents William H. Hurd Richmond, Virginia, argued the cause for the petitioner Michael R. Dreeben Department of Justice, argued the cause for the United States, as amicus curiae, supporting the petitioner Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal Martin E. Karlinsky for the Anti-Defamation League et al. as amici curiae Howard W. Goldstein for the Anti-Defamation League et al. as amici curiae Steven M. Freeman for the Anti-Defamation League et al. as amici curiae Frederick M. Lawrence for the Anti-Defamation League et al. as amici curiae Elliot M. Mincberg for the Anti-Defamation League et al. as amici curiae
  • Petitioner: Virginia
  • Respondent: Black
  • DECIDED BY:Rehnquist Court
  • Location: –
Citation: 538 US 343 (2003)
Argued: Dec 11, 2002
Decided: Apr 7, 2003
Virginia v. Black Case Brief