538 U.S. 343 (2003)
Virginia Code Annotated § 18.2-423 makes it unlawful for any person, 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.1
The statute further provides that any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.2 In 1998 three individuals were separately convicted under this statute in two incidents.3
Barry Black was convicted for leading a cross burning at a Ku Klux Klan rally on private property in Carroll County.4 Richard Elliott and Jonathan O'Mara were convicted for burning a cross on the lawn of their African-American neighbor James Jubilee in Virginia Beach.5
The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara.6 The Supreme Court of Virginia consolidated the appeals and held the statute unconstitutional on its face.7 The United States Supreme Court granted certiorari in 2002 to review the decision.8
Whether a State may ban cross burning carried out with the intent to intimidate consistent with the First Amendment?9
The First Amendment permits a State to ban true threats, and cross burning with the intent to intimidate constitutes a true threat unprotected by the First Amendment.10
Yes. The facts establish that Black led a Klan rally featuring speeches threatening violence against blacks and others before burning a cross visible from the road.11 Elliott and O'Mara burned a cross on Jubilee's lawn in retaliation for his complaint about gunfire.12 Both incidents demonstrate the intent to intimidate that qualifies as a proscribable true threat under the statute.13
A State may ban cross burning carried out with the intent to intimidate consistent with the First Amendment.14
Related opinions on this issue
Joined by Justice Thomas
Justice Scalia joined Parts I, II, and III of the Court's opinion.15 He agreed that under the decision in R. A. V. v. St. Paul a State may prohibit cross burning carried out with the intent to intimidate without infringing the First Amendment.16 Scalia stressed that the core prohibition targets only conduct a State is allowed to proscribe.17 He concluded that the statute's basic ban on intimidating cross burning is constitutional.18
Scalia would have reversed the judgment of the Virginia Supreme Court in its entirety.19
Justice Stevens concurred separately that cross burning with an intent to intimidate unquestionably qualifies as the kind of threat that is unprotected by the First Amendment.20 For the reasons stated in the separate opinions that Justice White and he wrote in R. A.
V. v. St. Paul, this simple proposition provides a sufficient basis for upholding the basic prohibition in the Virginia statute even though it does not cover other types of threatening expressive conduct.21 He emphasized that the core holding on true threats supplies an independent and adequate ground for sustaining the statute's central prohibition.22 Stevens joined Justice O'Connor's opinion with this observation.23
Whether the statute's prima facie evidence provision renders the statute overbroad under the First Amendment?24
Yes. The provision in Va. Code Ann. § 18.2-423 allowed the jury in Black's case to infer the required intent from the burning of the cross alone under the model jury instruction.27
The instruction operated without considering contextual facts such as the rally occurring on private property with the owner's permission or the possibility of purely ideological expression at Klan gatherings.28 This chills protected speech by making conviction more likely even when intent to intimidate is not proven beyond a reasonable doubt.29
The statute's prima facie evidence provision renders the statute overbroad under the First Amendment.30
Related opinions on this issue
Joined by Justices Kennedy And Ginsburg
Justice Souter observed that the prima facie evidence provision has the practical effect of tilting the jury's thinking in favor of the prosecution.31 This occurs when the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning.32 He concluded that the provision bars any finding that an exception to R.
A. V. is warranted because it raises the question whether suppression of ideas is afoot.33 Souter would have affirmed the judgment of the Virginia Supreme Court in full.34
Justice Thomas dissented and argued that the prima facie evidence provision creates only a permissive inference that the jury is free to accept or reject.35 He maintained that the provision does not shift the burden of proof or relieve the Commonwealth of its obligation to prove intent to intimidate beyond a reasonable doubt.36 Thomas concluded that the provision is constitutional and that the statute as a whole is valid.37
He would have reversed the judgment of the Virginia Supreme Court.38
Whether Virginia's cross-burning statute violates the First Amendment on its face as a content-based regulation of speech?39
Although the statute regulates speech on the basis of its content, the content discrimination is based on the very reason the speech is proscribable as a true threat, so the statute does not violate the First Amendment on its face apart from the prima facie provision.40
No. The statute targets cross burning with intent to intimidate regardless of the victim's race, gender, or religion.41 The selection of this particular form of intimidation is justified by its long history as a virulent signal of impending violence rather than by any official disapproval of a specific viewpoint.42
Virginia's cross-burning statute does not violate the First Amendment on its face as a content-based regulation of speech.43