Facts
- Virginia prosecuted three defendants under Va. Code § 18.2-423, which criminalized burning a cross “with the intent of intimidating” any person or group and made any cross burning “prima facie evidence” of intent to intimidate.
- Barry Elton Black, a Ku Klux Klan leader, led a rally on private property where a large cross was burned while participants shouted racist slogans; the event was visible from a public highway.
- At Black’s trial, the jury was instructed that cross burning alone could support an inference of intent to intimidate; Black was convicted.
- Richard J. Elliott and Jonathan S. O’Mara burned a cross in the yard of an African-American neighbor following a dispute; O’Mara pleaded guilty while reserving a constitutional challenge, and Elliott was convicted after a trial in which the judge did not instruct the jury on the “prima facie” clause.
- The Supreme Court of Virginia consolidated the cases and held the statute facially unconstitutional, concluding it impermissibly chilled protected expression and was indistinguishable from content-based regulation barred by the First Amendment.
Issues
- Whether the First Amendment permits a state to prohibit cross burning carried out with the intent to intimidate.
- Whether a statute violates the First Amendment by providing that any cross burning is prima facie evidence of intent to intimidate.
- Whether the statute was properly invalidated on its face rather than limited by severing or disregarding the unconstitutional presumption.
Decision
- The Supreme Court affirmed in part, vacated in part, and remanded.
- The Court held that a state may prohibit cross burning done with the intent to intimidate.
- The Court held unconstitutional the statutory provision making any cross burning prima facie evidence of intent to intimidate.
- The Court rejected invalidation of the entire statute and remanded for further proceedings consistent with treating only intentional intimidation as punishable without the presumption.
Legal Principles
- “True threats” are not protected by the First Amendment; they include serious expressions of intent to commit unlawful violence against an individual or group.
- Intimidation is a type of true threat when the speaker acts with the intent to place a victim in fear of bodily harm or death.
- A state may target cross burning as a particularly virulent form of intimidation when the prosecution proves intent to intimidate.
- A rule presuming intent to intimidate from the act of cross burning alone creates an unacceptable risk of suppressing protected expression and can chill political speech.
- The government may not avoid proving the required intent element by using a blanket evidentiary presumption tied solely to the expressive act.
Conclusion
The Court drew a constitutional line between punishable intimidation and protected expression: cross burning may be banned when performed with intent to intimidate as a true threat, but the state may not presume that intent from the act of cross burning itself.