First Amendment: Cross Burning

Virginia v. Black, No. 01-1107

In Commonwealth of Virginia v. Black et al., the Court revisited the controversial subject of cross burning, last considered in its 1992 decision in R.A.V. v. St. Paul, 505 U.S. 377. In that case, the Court stuck down as unconstitutional a St. Paul, Minnesota, "Bias-Motivated Crime Ordinance," which prohibited the display of a symbol that one knew or had reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

The Virginia cross burning statute, on the other hand, made it a felony for any person "with the intent of intimidating any person or group" to burn a cross on "the property of another, a highway or other public place." It also specified that any such burning "shall be prima facie evidence of an intent to intimidate a person or group."

In announcing the judgment of the Court, Justice O'Connor wrote that the provision treating any cross burning as prima facie evidence of an intent to intimidate rendered the law unconstitutional in its current form. But she went on to declare that, with a carefully drawn statute, a state may nevertheless ban cross burnings that are carried out with the intent to intimidate.

Virginia v. Black was somewhat of a "sleeper" case, at least to those who mistakenly thought it simply a reprise of the same arguments raised in the St. Paul, Minnesota, cross-burning case decided in 1992. Instead, the incendiary nature of the subject matter ended up once again gripping the Court and the nation.

Justice Thomas, the only African-American on the Court, spoke forcibly from the bench and then filed a lone dissent in which he declared that the Court should uphold the Virginia law because in his view it prohibited only conduct, not expression. And in any event, he said, "just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point."

Read the U.S. Supreme Court's 1992 opinion in R.A.V. v. St. Paul, 505 U.S. 377, which invoked the First Amendment to strike down a St. Paul, Minnesota, cross-burning ordinance.

Read the Virginia Supreme Court's opinion that Virginian cross-burning statute was likewise unconstitutional under the First Amendment.

Read the petitioner's brief filed by the State of Virginia to defend its statute.

Read the respondent's brief filed by Barry Elton Black in support of the Virginia court's ruling that the statute violated the First Amendment.

Read the Supreme Court's transcript of the oral arguments in the case.

Read the Supreme Court's opinion that, while a provision in the Virginia cross-burning statute that treats any cross burning as prima facie evidence of an intent to intimidate does render the statute unconstitutional in its current form, the First Amendment does not forbid states from banning cross burnings that are carried out with the intent to intimidate.

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