April 7, 2003 – The Supreme Court Decides Virginia v. Black

In the 2003 case Virginia v. Black (538 U.S. 343), three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. In an opinion authored by Justice Sandra Day O’Connor, the Court struck down Va. Code Ann. §18.2—423 (1996) to the extent that it considered cross burning as prima facie evidence of intent to intimidate:

We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.”

In the opinion, Justice O’Connor recounted the history of the Ku Klux Klan and the display of a burning cross “used to communicate both threats of violence and messages of shared ideology.” She cited the Klan constitution which claims that the “fiery cross” is the “emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and principles we have espoused.” She also adduced instances in which the burning cross was used by the Klan as “a sign of celebration and ceremony” such as at a marriage of two Klan members. Nevertheless, she acknowledged:

…while a burning cross does not inevitably 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.”

Justice Sandra Day O'Connor

Justice Sandra Day O’Connor

Nevertheless, she was unwilling to compromise the First Amendment, applicable to the States through the Fourteenth Amendment, providing that “Congress shall make no law … abridging the freedom of speech.” Citing previous rulings of the Court, she observed: “The hallmark of the protection of free speech is to allow “free trade in ideas”–even ideas that the overwhelming majority of people might find distasteful or discomforting.”

She admitted that “Virginia’s statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate.” But the Court agreed with the Supreme Court of Virginia in its finding that the Virginia statute was “overbroad” in inferring intent from the burning of a cross by itself:

As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, “[b]urning a cross at a political rally would almost certainly be protected expression.” R. A. V. v. St. Paul, 505 U.S., at 402, n. 4 (White, J., concurring in judgment) (citing Brandenburg v. Ohio, 395 U.S., at 445). Cf. National Socialist Party of America v. Skokie, 432 U.S. 43 (1977) (per curiam). Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott’s The Lady of the Lake.”

Justice O’Connor did not address what would constitute sufficient proof of “intent to intimidate.” It seems she was willing to accept any explanation offered by Klan members, notoriously not given to self-incrimination.

In his dissent, Justice Clarence Thomas basically writes, “Oh, come on!” He argues:

In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence.”

Justice Clarence Thomas

Justice Clarence Thomas

In addition he contended that the Virginia statute prohibited only conduct, not expression. However, he clarified:

Even assuming that the statute implicates the First Amendment, in my view, the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problems. Therein lies my primary disagreement with the plurality.”

He went on to note that in other instances of potential harm, the Court had not imposed a scienter requirement. Indeed, he averred, “Considering the horrific effect cross burning has on its victims, it is also reasonable to presume intent to intimidate from the act itself.” He concluded:

…the plurality strikes down the statute because one day an individual might wish to burn a cross, but might do so without an intent to intimidate anyone. That cross burning subjects its targets, and, sometimes, an unintended audience, see 262 Va., at 782; see also J.A. 93—97, to extreme emotional distress, and is virtually never viewed merely as “unwanted communication,” but rather, as a physical threat, is of no concern to the plurality. Henceforth, under the plurality’s view, physical safety will be valued less than the right to be free from unwanted communications.”

In 2002, the Virginia legislature responded by enacting a new statute numbered § 18.2-423.01. The original Section 18.2-423, held unconstitutional, has not been repealed. The new statute, however, does not contain a prima facie evidence provision and applies to “objects,” not mentioning crosses in particular. The statute makes burning an object on the private property of another with the intent to intimidate a crime in itself; whereas, burning an object on a highway or other public place with the intent to intimidate must be “in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”

Ku Klux Klansmen and women at a cross "lighting" (as opposed to "burning") on November 12th, 2005.

Ku Klux Klansmen and women at a cross “lighting” (as opposed to “burning”) on November 12th, 2005.

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