The Leadership Conference on Civil and Human Rights

The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives

Winter 2004

Supreme Court Upholds Cross Burning Ban1 

Virginia v. Black, No. 01-1107

 

On April 7, 2003, the Supreme Court upheld the constitutionality of a Virginia statute that criminalized cross burning with the intent to intimidate, finding that the statute acceptably punished expressive conduct that constitutes a "true threat" meant to place a person or group of persons in fear of bodily harm or death.  

In Virginia v. Black, the Court reversed in part the Virginia Supreme Court's ruling striking down the statute, holding that the state statute did not violate the First Amendment because it prohibited a particularly virulent form of intimidation-cross burning-that is intertwined with a history of racist threats and violence carried out against minorities by the Ku Klux Klan and has become a powerful symbol of hate inducing a fear of impending violence, bodily harm or death.  However, the Court invalidated the statute, as applied, to the extent it created a presumption of intent to intimidate from the mere fact of cross burning itself.

Background

The case addressed the situation of three individuals who were convicted separately under a Virginia statute that made it a felony to burn a cross in public with the intent of intimidating any person or group and that specified that the act of cross burning itself is prima facie evidence of an intent to intimidate.  Black's conviction stemmed from a Ku Klux Klan rally conducted on private property within view of a state highway and several adjoining homes at which a cross was burned.  Elliott's and O'Mara's convictions stemmed from their attempt, with a third individual, all unaffiliated with the Ku Klux Klan, to burn a cross on the yard of Elliott's African-American next-door neighbor.

The Virginia Supreme Court consolidated the respondents' appeals of their convictions and struck down the statute as unconstitutional on its face. The Virginia court found the law to be analytically indistinguishable from the hate speech ordinance found unconstitutional in R.A.V. v. St. Paul because the cross burning statute discriminates on the basis of content and viewpoint since it singles out only cross burning and its message of intimidation.

The court further stated that the Act's prima facie provision rendered it overly broad because it enhanced the probability of prosecution and could thereby threaten to chill non-intimidating cross burning as well as cross burning meant to intimidate.  Three Virginia Supreme Court justices dissented, concluding that the statute passed constitutional muster because it banned only conduct constituting a "true threat" of violence, it was not limited only to certain expressive reasons for the cross burning, and it did not impermissibly shift the burden of proof from the state to prove an intent to intimidate.

Majority Opinion

A majority of the Supreme Court concluded that the state could constitutionally ban cross burning carried out with an intent to discriminate.  

While recognizing that the First Amendment prohibits a state from banning unpopular ideas, speech or expressive conduct, Justice O'Connor, writing for the majority, pointed out that the free speech guarantee of the First Amendment was not absolute and must give way to state regulation in limited circumstances.  Citing the Court's holdings in Cohen v. California and Chaplinsky v. New Hampshire, the opinion notes that fighting words-abusive words that are "inherently likely to provoke violent reaction"-may be prohibited by law without offending the First Amendment.  The Court also noted (citing Brandenberg v. Ohio) that advocacy of lawlessness or violence that is "directed toward inciting or producing imminent lawless action and is likely to incite or produce such action" may also be banned without offending the First Amendment.  

Similarly, the First Amendment allows the government to ban a "true threat" of violence, which the Court defined as a "serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."  The speaker need not intend to carry out such a threat, Justice O'Connor wrote, because threats of violence are outside of the protection of the First Amendment and because the "prohibition on true threats protects individuals from the fear of violence."  Justice O'Connor claimed that intimidation is a type of true threat where the speaker "directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death."  Recounting at length the history of cross burning as a means of intimidation of minorities by the Ku Klux Klan, the Court found that cross burning had historically been such a "true threat" of violence to come.

Justice O'Connor then rejected the Virginia court's application of the Supreme Court's opinion in R.A.V. v. St. Paul, which overturned a statute banning conduct, including cross burning, designed to "arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."  R.A.V. found the statute at issue to be an impermissible discrimination against the content of speech because it singled out certain disfavored viewpoints for prohibition while leaving unregulated hate speech or fighting words based on other topics.  In applying R.A.V., the Court stated that the precedent did not prohibit all forms of content-based discrimination and left open regulation of a particular type of threat, such as threats of violence directed at the President of the United States or obscenity that is "the most patently offensive in its prurience, i.e., that which involves the most lascivious displays of sexual activity."  What R.A.V. does not allow, the Court stated, is prohibiting a form of expression only when it relates to select disfavored messages, such as banning violence against the President based on his urban aid policies or obscenity based on certain political messages.  

The Virginia cross burning ban, therefore, passed Constitutional muster because, unlike the provision at issue in R.A.V., it banned all cross burning and did not single out particular viewpoints.  But, in upholding the facial constitutionality of the Virginia statute, the Court rejected the application of its prima facie evidence provision in respondent Black's case because the jury instructions as given were an overly broad prohibition that could suppress protected speech, including cross burning performed without an intent to intimidate.  The Court noted that historically, cross burning has not exclusively been performed to intimidate, but has at times been a symbol of ideology or group solidarity.  Yet, as a result of the prima facie provision, the Court found that a jury could convict a defendant based solely on the fact of a cross burning itself without finding that the defendant acted with an intent to intimidate, which has the potential to suppress non-intimidating speech in addition to that performed with an intent to intimidate.  Accordingly, the Court affirmed the Virginia Supreme Court's reversal of respondent Black's conviction but vacated the judgments as to O'Mara and Elliott and remanded their cases for further proceedings applying the jury instructions in accordance with the Court's opinion.

On the issue of the facial constitutionality of the Virginia statute, Justice O'Connor's majority opinion was joined by Justices Rehnquist, Stevens, Scalia and Breyer, while Justice Thomas joined only in the result.  The portion of the opinion rejecting the statute's prima facie evidence provision was joined only by Justices Rehnquist, Stevens and Breyer, while Justices Souter, Kennedy and Ginsberg concurred in the result as to respondent Black and Justice Scalia concurred in the result remanding the judgment as to respondents Elliott and O'Mara .

Concurring Opinions

Justice Stevens wrote separately to urge a different application of the prima facie evidence provision, which he concluded passed constitutional muster because it did not create an irrebuttable presumption that a cross burning was performed with the intent to intimidate.

Justice Souter, joined by Justices Kennedy and Ginsberg, concurred only insofar as the judgment affirmed the invalidation of Black's conviction under the prima facie evidence provision of the statute, but rejected the majority's decision upholding the constitutionality of the cross burning statute.  In Justice Souter's view, the statute was unconstitutional and could not be saved under any exception under R.A.V. because it was an impermissible content-based proscription of expression.

Dissenting Opinion

Justice Thomas would have upheld the constitutionality of the Virginia statute, but filed a dissenting opinion concluding that the statute did not implicate First Amendment concerns because the act at issue-cross burning-was not a form of speech, but rather was pure intimidation, a threat falling outside of the sphere of expressive conduct.  Likening the Ku Klux Klan to a terrorist organization and calling cross burning a "tool for the intimidation and harassment of racial minorities, Catholics, Jews, communists, and any other groups hated by the Klan," Justice Thomas stressed the historical connection between cross burning and actual violence and intimidation and concluded that the Virginia statute banned only a type of conduct, not an expressive message and, thus, the statute raised no First Amendment implications.  Justice Thomas also objected to the majority's analysis of the prima facie evidence provision of the statute, which in his view, created only an inference of intent that could be rebutted by the defense and thus posed no threat to protected speech.

Reaction of the Civil Rights Community

"In upholding Virginia's statute, the Supreme Court rightfully recognizes that the government has the clear power to outlaw the use of this particularly hateful symbol when the intent is to intimidate or threaten another person. Today's decision confirms what we have argued repeatedly - that threats are not constitutionally protected free speech. A burning cross that is erected with the intent to intimidate or instill fear does not deserve the same protection as other expressions of speech,”said Abraham H. Foxman, Anti-Defamation League (ADL) National Director. The ADL had filed an amicus brief as lead attorney for a coalition of civil rights and civil liberties groups.

"We are pleased that the court reaffirmed free speech by making it clear that cross-burning, when it is not used as a direct threat, is protected by the Constitution, "said Kent Willis, Executive Director of the American Civil Liberties Union of Virginia. The ACLU of Virginia has provided legal representation to Black since the incident in 1999. "We would have preferred that the Supreme Court agree with us by taking a purer First Amendment stand, but it did strike down the presumption in the law that cross-burning is always meant to intimidate," added Willis.