Virginia v. Black

PETITIONER: Virginia
RESPONDENT: Black
LOCATION: 1220 Student Activities Building - Undergraduate Admissions

DOCKET NO.: 01-1107
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: Supreme Court of Virginia

CITATION: 538 US 343 (2003)
ARGUED: Dec 11, 2002
DECIDED: Apr 07, 2003

ADVOCATES:
Deputy Solicitor General Dreeben - argued the cause for the United States as amicus curiae urging reversal
Elliot M. Mincberg - for the Anti-Defamation League et al. as amici curiae
Frederick M. Lawrence - for the Anti-Defamation League et al. as amici curiae
Howard W. Goldstein - for the Anti-Defamation League et al. as amici curiae
Michael R. Dreeben - Department of Justice, argued the cause for the United States, as amicus curiae, supporting the petitioner
Martin E. Karlinsky - for the Anti-Defamation League et al. as amici curiae
Rodney A. Smolla - Argued the cause for the respondents
Steven M. Freeman - for the Anti-Defamation League et al. as amici curiae
William H. Hurd - Richmond, Virginia, argued the cause for the petitioner

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 intimidate" could 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.

Question

Does the Commonwealth of Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment?

Media for Virginia v. Black

Audio Transcription for Oral Argument - December 11, 2002 in Virginia v. Black

Audio Transcription for Opinion Announcement - April 07, 2003 in Virginia v. Black

William H. Rehnquist:

The opinion of the Court in No.01-1107, Virginia against Black will be announced by Justice O’Connor.

Sandra Day O'Connor:

This case comes to us on writ of certiorari to the Supreme Court of Virginia.

The respondents, Barry Black, Richard Elliott, and Jonathan O’Mara were separately convicted of violating Virginia’s cross-burning statute.

In August 1998, Barry Black led a Ku Klux Klan rally; at the conclusion of the rally, the Klan burned a cross.

Black was charged with burning a cross with the intent to intimidate.

The jury was instructed in accordance with the Model Jury Instructions that the burning of a cross by itself is sufficient evidence from which you may infer the required intent.

In May 1998, Richard Elliott and Jonathan O’Mara attempted to burn a cross on the lawn of Elliot’s neighbor and were charged under cross-burning statute.

After all the respondents were convicted, they appeal to the Supreme Court of Virginia arguing that the cross-burning statute is unconstitutional.

The Virginia Supreme Court reversed all the convictions holding that the Virginia cross-burning statute is analytically indistinguishable from the ordinance found unconstitutional by this court in the decision a few years ago of R.A.V. versus St. Paul.

The Virginia Court also held that the prima facie evidence provision of Virginia’s cross-burning statute renders that statute overbroad.

In an opinion filed with the Clerk of the Court today, we affirm the judgment of the Supreme Court of Virginia with respect to the Black conviction, and we vacate and remand its judgment with respect to Elliott and O’Mara.

We hold that as State consistent with the First Amendment may ban cross-burning carried out with the intent to intimidate.

While a burning cross does not always convey a message of intimidation.

Often the cross burner intends that the recipients of the message fear for their lives, and when a cross-burning is used to intimidate few if any messages are more powerful.

The hallmark of the protection of free speech under the First Amendment is to allow free trade and ideas.

The protection supported by the First Amendment however is not absolute and the Government may prohibit true threats.

True threats encompass those statements where the seeker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual.

Intimidation in the constitutionally proscribable sense of the word is a type of true threat.

The First Amendment permits Virginia to outlaw a cross-burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation.

This type of cross-burning is fully consistent with our holding in R.A.V.

In R.A.V., we specifically stated that a particular type of content discrimination does not violate the First Amendment when the basis for it consists entirely of the very reason its interclass of speech is proscribable.

Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross-burning’s long and pernicious history.

A plurality of the court consisting of myself, the Chief Justice, Justice Stevens, and Justice Breyer withhold that that prima facie provision as interpreted through the jury instruction given in Black’s case is unconstitutional.

The act of burning a cross may mean that the person in engaging in constitutionally proscribable intimidation or it may mean only that the person is engaged in core political speech.

The prima facie provision blurs the line between these meanings.

The First Amendment does not permit such a shortcut.

Thus, Black’s conviction cannot stand, and the judgment as to him is affirmed.

Because the prima facie provision was not at issue, in the way that the cases of Elliott and O’Mara were handled, we vacate and remand the Virginia Supreme Court judgment as to those two respondents.

Justice Stevens has filed a concurring opinion; Justice Scalia joined by Justice Thomas as to parts I and II has filed an opinion concurring as to those sections and concurring in the judgment in part and dissenting in part; Justice Souter joined by Justices Kennedy and Ginsburg has filed an opinion concurring in the judgment in part and dissenting in part; Justice Thomas has filed a dissenting opinion.