Virginia v. Black

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Virginia v. Black, 538 U.S. 343 (2003), is a landmark decision of the Supreme Court of the United States in which the Court held, 5–4, that any state statute banning cross burning on the basis that it constitutes _prima facie _ evidence of intent to intimidate is a violation of the First Amendment to the Constitution . Such a provision, the Court argued, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan 's protected "messages of shared ideology". In the case, three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. However, cross-burning can be a criminal offense if the intent to intimidate is proven. It was argued by former Solicitor General of Virginia, William Hurd and Rodney A. Smolla .

Contents

• 1 Background

  • 1.1 Virginia's cross burning ban

  • 1.2 Arrests and convictions

    • 1.2.1 Elliot and O'Mara

    • 1.2.2 Barry Black

• 2 Decision

  • 2.1 Majority

  • 2.2 Dissents and concurrences

• 3 See also

• 4 References

• 5 External links

Background

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In cases such as _Chaplinsky v. New Hampshire _, 315 U.S. 568 (1942), _New York Times Co. v. Sullivan _, 376 U.S. 254 (1964), _R.A.V. v. City of St. Paul _ (1992) and others, the Supreme Court has addressed various areas of controversial speech. The Court has frequently sided with the speakers, but occasionally the Court has sided with the government and acknowledged its (limited) power to pass laws protecting citizens from specific types of harmful speech.

Virginia's cross burning ban

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In 1952, the Virginia Legislature passed a law banning the wearing of masks in public and cross burning after members of the Ku Klux Klan – Bill Hendricks of Florida and Thomas Hamilton of South Carolina – announced plans to hold rallies in the state. Governor John Battle signed the bill into law in that April.[1] In December 1966, Governor Mills Godwin announced a $1,000 reward for information leading to the arrest of cross burners and in response the Ku Klux Klan burned a cross in front of the Executive Mansion . A slew of cross burnings across the state followed.[2]

In 1967, Wilson Ralph Price and Nanny Jane Price were arrested and convicted for burning a cross on a public sidewalk in Richmond , but the Virginia Supreme Court overturned their conviction the next year finding the ban did not apply to public property because the statutes language limited it to the cross burnings "on the property of another."[3] In 1968, the Virginia Legislature amended the state law to apply to public property and included a section that specified "the unlawful burning of a cross shall be _prima facie _ evidence of the intention to intimidate a person or group of persons."[4]

Arrests and convictions

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Three defendants were found guilty of violating Virginia's anti-cross burning statute.[5] The cases were combined upon appeal and reached the U.S. Supreme Court during the Fall 2002 session.[6]

Elliot and O'Mara

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On May 2, 1998, Richard Elliot and Jonathan O'Mara attempted to light a cross on the property of Elliot's neighbor (who was black) in Virginia Beach, Virginia .[6] In 2001, the Supreme Court of Virginia found that the cross burning statute was unconstitutional and overturned Elliot and O'Mara's convictions. Virginia appealed the case to the U.S. Supreme Court arguing that Elliot and O'Mara's convictions should have been upheld because they had clear intent to intimidate when they lit a cross on the property of another without the owner's consent.[7]

Barry Black

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On August 22, 1998, Barry Black held a Ku Klux Klan rally on private property and with the consent of the owner in Cana, Virginia , located in rural Carroll County .[8] A neighbor and the county sheriff witnessed the event and heard attendees make many negative comments concerning black people. During the rally Black lit a cross, was arrested, and charged with violating the state's ban on cross burnings.[6]

In June 1999, Black, who was represented by an African American American Civil Liberties Union attorney named David Baugh,[9] was found guilty by an all-white jury after 25 minutes of deliberations and sentenced to a $2,500 fine. Black appealed and in December 2000 the Virginia Court of Appeals affirmed his conviction. In 2001, the Supreme Court of Virginia found that the cross burning statute was unconstitutional and overturned Black's conviction.[10]

Decision

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Majority

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Justice Sandra Day O'Connor delivered the opinion stating, "a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate." In so doing, the Court considered the speech to be constitutionally unprotected "true threats ." Under that carve-out, "a State may choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm."[6]

In Virginia v. Black the Court found that Virginia's statute against cross burning is unconstitutional with respect to the text in the statute that states "Any such burning of a cross shall be _prima facie _ evidence of an intent to intimidate a person or group of persons." This text in particular was found to be unconstitutional as it violates the Fourteenth Amendment insofar as it provides the presumption, that the act of cross burning is evidence of the intent to intimidate. In _Sandstrom v. Montana _, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), the Court held when a jury is instructed in such a manner where;

the law presumes a person intends the ordinary consequences of his voluntary acts, [the jury] may have interpreted the presumption as conclusive or as shifting the burden of persuasion, and because either interpretation would have violated the Fourteenth Amendment's requirement that the state prove every element of a criminal offense beyond a reasonable doubt, the instruction

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