Cross-burning - Virginia v Black
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Virginia v. Black (2002)

1.       Facts
In August 1998, Barry Black led a Ku Klux Klan rally on an open field in Carroll County, Virginia. The rally was organized with the permission of the field's owner, who was one of the twenty-five to thirty attendants. During the rally, Klan members proclaimed the superiority of the white race. One speaker stated that "he would love to take a .30/.30 and just randomly shoot the blacks". At the conclusion of the rally, the crowd set fire to a 25-foot cross located 300 yards away from a state highway.

The sheriff that observed the cross burning arrested Barry Black under the charge of infringing the Virginia cross-burning statute:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. 

Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.
 A jury found Black guilty and fined him 2,500. The Court of Appeals of Virginia upheld the decision.

2.       Issue
The defendant charged the unconstitutionality of the Virginia cross-burning statute under the First Amendment.

3.       Holding
The Supreme Court found the provision treating cross-burning as a prima facie evidence of intent to intimidate rendered the Virginia statute unconstitutional. However, the Court upheld the right of a state to ban cross burning carried out with the intent to intimidate.

4.       Reasoning

a.       Relevant case law
In Abrams v. United States (1919) and Texas v. Johnson (1989), the court established that the government may not prohibit the expression of an idea because it finds it offensive or disagreeable.

In Chaplinsky v. New Hampsire (1942), the Court decided that a state is allowed to punish words "which by their very utterance inflict injury or tend to incite an immediate breach of peace." In Brandenburg v. Ohio, the Court decided that states may not restrict advocacy for the use of force or law violation unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

In R.A.V. v. City of St. Paul (1992), the court held that legislation demonstrating content-based discrimination, i.e. the targeting of individuals who "provoke violence" on a basis specified in the law, is unconstitutional. Under this decision, a statute banning cross burning conducted with the knowledge that this behavior would "arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender" was unconstitutional because it did not cover other possible motivations (e.g. political affiliation, union membership, homosexuality). However, specific types of content-based discrimination, "when the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable", is considered neutral and thus excluded from First Amendment protection.  

b.      Content-based discrimination - not a ground for unconstitutionality
The court invalidated the decision of the Supreme Court of Virginia, which had declared cross-burning statute unconstitutional in accordance with the content-based discrimination principle stated in R.A.V v. City of St. Paul. According to Justice O'Connor, writing for the majority, the Virginia statute is different from the one declared unconstitutional in R.A.V., as it "does not single out for opprobrium only that speech directed toward 'one of the specified disfavored topics'. It does not matter whether an individual burns a cross with intent to intimidate because of the victim's race, gender, or religion, or because of the victim's 'political affiliation, union membership, or homosexuality'". Thus, the Virginia statute can be considered neutral from the point of view of content discrimination and cannot be invalidated by reference to the R.A.V case.

c.       Prima facie evidence provision - ground for unconstitutionality
Justice O'Connor argues that the prima facie provision permits the state to proscribe cross burning regardless of the "intent to intimidate", and, in doing so, risks to create "an unacceptable risk of the suppression of ideas." While agreeing that cross-burning may arouse "a sense of anger and hatred", Justice O'Conner states that contextual factors need to be analyzed in deciding whether the "intent to intimidate" was actually present.

5.       Concurring and Dissenting Opinions

a.       Justice Thomas contests the expressive value of cross-burning as envisioned by the majority: "whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means."

b.       Justice Souter disagrees with the majority's opinion to regard the Virginia statute consistent with the holding in R.A.V. v City of St. Paul. According to Justice Souter, while the Virginia statute contains no explicit basis of limitation in regards to the prohibited behavior, the specific focus on cross-burning "selects a symbol with particular content from the field of all proscribable expression meant to intimidate." Considering cross-burning an exception to the content-based discrimination principle, is equivalent to a characterization of cross-burning as a "particularly virulent" expression, in which case discrimination "consists entirely of the very reason the entire class of speech at issue is proscribable." Souter strongly disagrees with this argument, emphasizing the specific message of white supremacy embodied in cross-burning. Souter agrees with the majority's judgment on the unconstitutionality of the Virginia statute, but argues that the implicit content-based distinctions of the statute render the legislation invalid regardless of the prima facie provision.

  6.       Significance

-          the unconstitutionality of prima facie provisions in regard to defining "intent to intimidate.

-          the interpretation of R.A.V v City of St. Paul: implicit content-based characteristics of similar legislation are likely to be rejected.   

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