A Burning Cross, Virginia v. Black
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  A Burning Cross, Virginia v. Black
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Author Topic: A Burning Cross, Virginia v. Black  (Read 4776 times)
A18
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« on: November 27, 2005, 05:05:54 PM »

Virginia v. Black, 538 U.S. 343 (2003)

Respondents were convicted separately of violating a Virginia statute that makes 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," and specifies that "[a]ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group." When respondent Black objected on First Amendment grounds to his trial court's jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred, the prosecutor responded that the instruction was taken straight out of the Virginia Model Instructions. Respondent O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. At respondent Elliott's trial, the judge instructed the jury as to what the Commonwealth had to prove, but did not give an instruction on the meaning of the word "intimidate," nor on the statute's prima facie evidence provision. Consolidating all three cases, the Virginia Supreme Court held that the cross-burning statute is unconstitutional on its face; that it is analytically indistinguishable from the ordinance found unconstitutional in R. A. V. v. St. Paul, 505 U. S. 377; that it discriminates on the basis of content and viewpoint since it selectively chooses only cross burning because of its distinctive message; and that the prima facie evidence provision renders the statute overbroad because the enhanced probability of prosecution under the statute chills the expression of protected speech.

Held: The judgment is affirmed in part, vacated in part, and remanded.
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A18
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« Reply #1 on: November 27, 2005, 05:07:20 PM »

          (a) Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan, which, following its formation in 1866, imposed a reign of terror throughout the South, whipping, threatening, and murdering blacks, southern whites who disagreed with the Klan, and "carpetbagger" northern whites. The Klan has often used cross burnings as a tool of intimidation and a threat of impending violence, although such burnings have also remained potent symbols of shared group identity and ideology, serving as a central feature of Klan gatherings. To this day, however, regardless of whether the message is a political one or is also meant to intimidate, the burning of a cross is a "symbol of hate." Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 771. While cross burning does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful. Pp. 6-11.

          (b) The protections the First Amendment affords speech and expressive conduct are not absolute. This Court has long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e.g., Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572. For example, the First Amendment permits a State to ban "true threats," e.g., Watts v. United States, 394 U. S. 705, 708 (per curiam), which encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, see, e.g., id., at 708. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. R. A. V., supra, at 388. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As the history of cross burning in this country shows, that act is often intimidating, intended to create a pervasive fear in victims that they are a target of violence. Pp. 11-14.

          (c) The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. A ban on cross burning carried out with the intent to intimidate is fully consistent with this Court's holding in R. A. V. Contrary to the Virginia Supreme Court's ruling, R. A. V. did not hold that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. Rather, the Court specifically stated that a particular type of content discrimination does not violate the First Amendment when the basis for it consists entirely of the very reason its entire class of speech is proscribable. 505 U. S., at 388. For example, it is permissible to prohibit only that obscenity that is most patently offensive in its prurience--i.e., that which involves the most lascivious displays of sexual activity. Ibid. Similarly, Virginia's statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate. Unlike the statute at issue in R. A. V., the Virginia statute does not single out for opprobrium only that speech directed toward "one of the specified disfavored topics." Id., at 391. It does not matter whether an individual burns a cross with intent to intimidate because of the victim's race, gender, or religion, or because of the victim's "political affiliation, union membership, or homosexuality." Ibid. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. Pp. 14-17.
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Emsworth
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« Reply #2 on: November 27, 2005, 05:32:56 PM »

The decision was sound. The mere burning of a cross, absent any actual intimidation, is constitutionally protected speech, just like the burning of a flag.
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A18
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« Reply #3 on: November 27, 2005, 06:32:11 PM »

Constitutionally unsound. The cross is a sign of terrorism, and is about as protected under the First Amendment as brandishing an assault rifle.
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Emsworth
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« Reply #4 on: November 27, 2005, 06:40:49 PM »
« Edited: November 27, 2005, 06:44:04 PM by Emsworth »

The [burning] cross is a sign of terrorism, and is about as protected under the First Amendment as brandishing an assault rifle.
An assault rifle is a deadly weapon that can actually be used to attack someone. A burning cross is not.

Nor is a burning cross a symbol of terrorism. It has been used in a few specific cases to instill fear, but on the whole a burning cross is quite harmless, posing no actual threat, causing no actual breach of the peace.
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A18
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« Reply #5 on: November 27, 2005, 06:44:50 PM »

The words, "I will kill you" can not attack someone either.

It is the threat that matters. And you can't tell me that if you were a black man who found a burning cross in his yard, you wouldn't take that as a threat.
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Emsworth
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« Reply #6 on: November 27, 2005, 06:51:36 PM »

The words, "I will kill you" can not attack someone either.
Such a statement involves an unmistakable and explicit threat to kill someone. A burning cross has, at most, mere connotations.

But that is not all. If someone says "I will kill you" in a threatening way, then his statement is not constitutionally protected. However, if he makes the statement in a playful or joking manner (with a friend, for example), then the state may not punish him. The same statement may or may not be a threat.

The same rule applies to cross-burning. Burning a cross with the intention or effect of intimidating someone is not constitutionally protected. But merely burning a cross cannot be a criminal activity.
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A18
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« Reply #7 on: November 27, 2005, 06:53:59 PM »

This statute, as I understand it, was aimed specifically at intimidation. No one was saying the Klan couldn't use the symbol at its private rallies or any such thing.
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Emsworth
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« Reply #8 on: November 27, 2005, 07:00:15 PM »

This statute, as I understand it, was aimed specifically at intimidation. No one was saying the Klan couldn't use the symbol at its private rallies or any such thing.
If I recall correctly, the objection was to the part of the statute that stated, "Any such burning ... shall be prima facie evidence of an intent to intimidate a person or group."
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Yates
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« Reply #9 on: November 27, 2005, 07:23:41 PM »

Constitutionally unsound. The cross is a sign of terrorism, and is about as protected under the First Amendment as brandishing an assault rifle.

I surprise even myself in agreeing with you.
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Speed of Sound
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« Reply #10 on: November 28, 2005, 10:55:21 AM »

I have to agree with Emsworth on this one
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Bleeding heart conservative, HTMLdon
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« Reply #11 on: November 28, 2005, 11:06:50 AM »

Constitutionally unsound. The cross is a sign of terrorism, and is about as protected under the First Amendment as brandishing an assault rifle.

^^^^^^^^
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