Virginia v. Black
The Supreme Court ruled that Virginia could make it a crime to burn a cross with the intent to intimidate someone, because that kind of cross burning is a genuine threat and threats are not protected by the First Amendment.
But the Court also found that a separate part of Virginia's law -- letting a jury treat any cross burning, without more, as proof of intent to intimidate -- went too far, because it could sweep in cross burnings meant only as a political or ideological statement rather than a threat.
“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 as a signal of impending violence.”
Explaining why Virginia could single out cross burning as a uniquely dangerous form of intimidation.
How it got here: Virginia's Supreme Court struck down the cross-burning statute as unconstitutional on its face; Virginia asked the U.S. Supreme Court to review that ruling, which agreed to hear the case.
The Case in Depth
What happened
Barry Black led a Ku Klux Klan rally on private land in rural Virginia where a large cross was burned; a neighbor who watched felt frightened by racist remarks made at the gathering. Separately, Richard Elliott and Jonathan O'Mara, acting on their own without any Klan tie, burned a cross on the lawn of James Jubilee, their Black neighbor, after a dispute over gunfire from a backyard shooting range. All three were convicted under Virginia's law banning cross burning meant to intimidate.
The question before the Court
Could Virginia make it a crime to burn a cross meant to intimidate someone, even though its law let a jury treat the mere act of burning a cross as proof that the person meant to intimidate?
Why it matters
The decision lets states punish cross burning used as a threat while protecting cross burning used to express an ideology, however repugnant. States that want to criminalize this kind of intimidation must write their laws carefully, without provisions that make it too easy to convict someone for a cross burning alone, without proof the person actually meant to threaten anyone.
What changes now
Black's conviction is thrown out for good, since the Virginia Supreme Court's judgment dismissing his case is affirmed. Elliott and O'Mara's cases go back to the Virginia courts, which must decide, without relying on the unconstitutional prima facie evidence provision, whether the statute's remaining, valid part can still support their convictions, and whether the flawed provision can be cut out and the case retried. This is a final merits ruling, not a temporary order.
What this does not decide
The Court did not decide whether some other, narrower way of interpreting the "prima facie evidence" clause might be constitutional, since the Virginia courts had not yet settled its meaning. It also left open whether that clause could be severed from the rest of the law and whether Elliott and O'Mara could be retried under the remaining statute.
Concurrences and dissents
Concurrence — Justice Stevens
Justice Stevens agreed fully with the O'Connor opinion but wrote separately to stress that intimidating cross burning is simply a type of threat unprotected by the First Amendment, a point he said he and Justice White had already made in their separate opinions in R. A. V. v. St. Paul. He viewed this as sufficient on its own to uphold the statute's basic prohibition.
Concurrence in part — Justice Scalia
Justice Scalia agreed that Virginia could ban cross burning done to intimidate and agreed with sending the case back so Virginia's courts could authoritatively construe the prima facie evidence provision. But he strongly disagreed with striking the provision down on its face, arguing the plurality wrongly treated one trial judge's jury instruction as binding on the meaning of an ambiguous state statute and that the class of people wrongly convicted under it was too small to make the law substantially overbroad.
Dissent in part — Justice Souter
Justice Souter agreed the statute discriminates based on content but disagreed that any exception to R. A. V. saves it. He argued the prima facie evidence provision shows the law is likely to suppress the Klan's ideological message along with any threat, so no R. A. V. exception applies and the whole statute is unconstitutional; he would have affirmed the Virginia Supreme Court's decision to vacate and dismiss all three convictions.
Dissent — Justice Thomas
“Accordingly, this statute prohibits only conduct, not expression.”Thomas's argument that the law regulates dangerous conduct rather than protected speech at all.
Justice Thomas argued that Virginia's law regulates only conduct, not expression, so no First Amendment analysis was even necessary, given the law's history as a targeted response to Klan terrorism. He also argued that letting a jury infer intent to intimidate from cross burning alone raises no constitutional problem, comparing it to accepted inferences in statutory rape and drug trafficking laws, and would have upheld the statute entirely.
How the Court got there
The legal reasoning, step by step
- The Court explained that the First Amendment lets government ban 'true threats' -- statements meant to seriously communicate an intent to commit violence against a person or group -- and that intimidating cross burning fits within this category because of its long history as a signal of impending violence.
- The Court then addressed whether Virginia's law improperly targeted only one type of message, relying on R. A. V. v. St. Paul, the 1992 decision striking down a hate-speech ordinance for singling out certain viewpoints. The Court read R. A. V. as still allowing a state to ban a subcategory of proscribable speech when the ban tracks the very reason that category can be banned at all -- here, cross burning's unique power to threaten.
- Applying that principle, the Court held that Virginia could constitutionally single out cross burning done with intent to intimidate, because the ban was based on the threat itself rather than on disapproval of any particular viewpoint.
- Turning to the law's separate 'prima facie evidence' clause -- which let a jury infer intent to intimidate from the act of burning a cross alone -- the Court found that, as explained to the jury in Black's trial, this clause let juries convict people even when the burning might have been purely a political or ideological statement rather than a threat.
- Because the clause blurred the line between constitutionally protected symbolic speech and true threats, and could chill people from ever presenting a defense, the Court concluded that the clause -- as interpreted by the trial court's jury instruction -- made the statute unconstitutional on its face at that time.
Doctrinal impact
Cases affected by this decision
Limits R. A. V. v. St. Paul (505 U. S. 377)
The Court read R.A.V.'s narrow exception for banning especially dangerous speech more flexibly, letting Virginia single out cross burning.