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Virginia v. Black

Supreme Court of the United States · 2003 · Constitutional Law

Constitutional LawFirst AmendmentFree SpeechTrue ThreatsFirst Amendmenttrue threatscross burningintent to intimidate

Facts

Virginia's statute made it a felony to burn a cross in a public place or on another's property with the intent to intimidate a person or group, and it further provided that any such burning would be prima facie evidence of intent to intimidate. Black was convicted after leading a Ku Klux Klan rally on private property where a cross was burned at the end of the event; his jury was instructed that the burning of a cross by itself was sufficient evidence from which intent could be inferred. Elliott and O'Mara were prosecuted after attempting to burn a cross in the yard of James Jubilee, an African-American neighbor, apparently to "get back" at him for complaining about gunfire. The Supreme Court considered whether the statute's prohibition and its prima facie evidence provision were consistent with the First Amendment.

Issue

Whether Virginia may, consistent with the First Amendment, ban cross burning done with an intent to intimidate. And whether the statute's provision treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional.

Rule

The First Amendment permits a State to ban cross burning carried out with the intent to intimidate, because intimidation in the constitutionally proscribable sense is a type of true threat. But a State may not provide that the act of cross burning itself is prima facie evidence of intent to intimidate, since cross burning does not invariably convey intimidation and may also express ideology or group solidarity.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In rural Ohio, Darren Holt hosted a nighttime gathering for a white supremacist club on farmland owned by his cousin. At the end of the meeting, members burned a large cross while chanting slogans about racial purity, but no evidence showed the act was directed at any identified person or group present nearby.

If Ohio prosecutes Holt under a statute that makes it a felony to burn a cross only when the government proves the defendant acted with intent to intimidate a person or group, what is the best First Amendment analysis?

Explanation. The majority opinion permits a State to prohibit cross burning carried out with intent to intimidate because such intimidation is a type of true threat. But cross burning is not invariably threatening; it may also express ideology or group solidarity. So the constitutionality of the prosecution turns on proof that this defendant intended intimidation, not merely on the hateful nature of the event.