Virginia v. Black
538 U.S. 343 (2003)

  • Virginia had a law that made it a crime to burn a cross with the intent to intimidate people.
    • The law provided that the simple act of burning the cross was prima facie evidence of an intent to intimidate.
  • Black was a member of the Ku Klux Klan and burned a cross at a rally on private property. He was arrested and charged with violating the Virginia law.
  • Black was convicted. He appealed.
    • Black argued that his intent in burning the cross was to inspire his KKK buddies, not to intimidate anyone. The cross was burned on private property, and Black had no knowledge that anyone who might have been intimidated could even see it.
    • Black argued that the Virginia law was a violation of his constitutional right to free speech under the 1st Amendment.
      • Black argued that the Virginia law was unconstitutional because it outlawed only certain kinds of speech and was therefore content-based. Content-based laws are almost always found unconstitutional under the 1st Amendment.
        • See R.A.V. v. City of St. Paul, Minnesota (505 U.S. 377 (1992)).
  • Separately, Elliot and O’Mara burned a cross on their neighbor’s property in retaliation for a dispute. They were also arrested and charged with violating the Virginia law.
  • Elliot and O’Mara were convicted. They appealed.
  • Eventually the cases were combined and heard by the US Supreme Court.
  • The US Supreme Court overturned the convictions, and found the Virginia law unconstitutional.
    • The US Supreme Court acknowledged that under the 1st Amendment, it is permissible to censor some forms of speech when they have an intent to intimidate, incite violence, or are a true threat.
      • Those are known as fighting words.
    • However, the Court found that the Virginia law was not constitutional because it instructed juries to find that all cross burnings were assumed to have been done with an intent to intimidate.
      • The Court looked at the historical record, and found that crosses had been burned not only to intimidate and scare people, but also for other things, like inspiring people or to express a shared ideology. Therefore you couldn’t say that all cross burning was a form of intimidation.
  • In a dissent it was argued that pretty much all cross burning is done with an intent to intimidate. And since the Virginia law’s presumption is rebuttable, juries could still decline to convict in those few cases where there was no intent to intimidate.