Virginia v. Black
Eleven years after its landmark hate-speech decision in R.A.V. v. St. Paul, 112 S.Ct. 2538 (1992), the U.S. Supreme Court last spring upheld a Virginia law criminalizing the burning of crosses with the intent to intimidate. The case, Virginia v. Black, 123 S.Ct. 1536 (2003), was decided April 7, 2003, in a plurality opinion by Justice Sandra Day O'Connor.
The law in question, Va. Code Ann. ยค 18.2-423 (1996), states in part: "It shall be unlawful for any person or persons, 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. . . . Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."
The plurality held that the First Amendment did not bar a law banning cross burning "with the intent of intimidating" others, because such intimidation constituted a threat. However, the court held that the statute's prima facie evidence provision, as interpreted by jury instructions in one of the cases before the court, was unconstitutional. Because of that, the court overturned one conviction where the jury was instructed that the act of burning a cross, in and of itself, was prima facie evidence of an intent to intimidate. In another instance, where no such instruction was given, the court vacated the conviction and remanded for further inquiry as to intent to intimidate.
After the U.S. Supreme Court granted certiorari, the Virginia legislature enacted a new cross-burning statute without the prima facie evidence provision, but the new law did not repeal the old one, the Court noted.
A decade before Black, in 1992, the Supreme Court in R.A.V. had set the standard for hate-speech laws. In that case, the Court struck down a St. Paul, Minn., city ordinance that criminalized certain specific messages, including burning crosses and swastikas, when those messages were intended to stir up anger on the basis of "race, color, creed, religion or gender." Because the ordinance only applied to messages focused on arousing anger based on one of those categories, the Court held that it constituted a content-based speech restriction in violation of the First Amendment.
The Virginia law reviewed in Black, however, was different in significant respects, the Court said. First, the ordinance banned only cross burning. Second, it made no distinctions about what person or group the message was intended to reach. Third, and most importantly, it required that the cross burning must have been done with intent to intimidate. Those distinctions allowed the justices to find that the law did not violate the Constitution because cross burning with the intent to intimidate constitutes a threat, speech that is not protected by the First Amendment. Also, because the law does not single out specific groups for protection, the justices did not see it as impermissibly content-based.
The first three sections of Justice O'Connor's opinion were joined by Chief Justice Rehnquist and Justices Scalia, Stevens and Breyer. Justices Souter and Scalia issued opinions that concurred in part and dissented in part. Justice Thomas dissented, saying that the burning of a cross was not speech at all, but conduct that should receive no First Amendment protection.
—Doug Peters
Silha Fellow