Virginia v. Black et al., 538 US 343 (2003)
Three men were convicted of violating a Virginia state statute that makes cross burning a felony, when they lit a cross at a Carroll County, Virginia, Ku Klux Klan rally.
The statute under which they were convicted reads (in part) that it is illegal: "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..." The law included a provision that "[a]ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group," meaning any act of cross burning is automatically considered an attempted to intimidate, regardless of circumstances.
The men argued that cross burning was expressive speech protected under the First Amendment, and objected to the clause that held the action was always evidence of an attempt to intimidate.
The Virginia Supreme Court held that the cross burning statute was unconstitutional, and that the language of the statute was overbroad (too general and inclusive). The US Supreme Court affirmed in part, vacated in part, and remanded the case to the trial court for further disposition.
Justice O'Connor, writing the opinion of the Court, explained that cross burning is inextricably bound with hate messages and intimidation against a particular group or individual; therefore, the act is often an exception to First Amendment protection. The Court found the Virginia state law constitutional to the extend that the state can tie a particular act of cross burning to an attempt to threaten or intimidate. The state has a right to ban "true threats," even if they are symbolic.
On the other hand, the Court found Parts V and VI of the law, interpreting all acts of cross burning as "prima facie evidence of an intent to intimidate" unconstitutional. The Court contended cross burning was a permissible act of expressive speech if done in a context where the burning was not a directed threat of violence against an individual or group.
(The Court agreed that aspect of the statute was overbroad, and unconstitutional).
Justice Thomas' Dissent
Justice Thomas dissented from the majority, based on the violent history of the Klan and the frequency with which cross burning was followed by violence.
"Although I agree with the majority's conclusion that it is constitutionally permissible to "ban ... cross burning carried out with intent to intimidate," see maj. op., at 17, I believe that the majority errs in imputing an expressive component to the activity in question, see maj. op., at 17 (relying on one of the exceptions to the First Amendment's prohibition on content-based discrimination outlined in R. A. V. v. St. Paul, 505 U. S. 377 (1992)). In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means. A conclusion that the statute prohibiting cross burning with intent to intimidate sweeps beyond a prohibition on certain conduct into the zone of expression overlooks not only the Words of the statute but also reality."
Thomas agreed with the Virginia state legislature that prohibiting cross burning under all circumstances was appropriate, and not overbroad, as the majority believed.
To read Justice Thomas' dissent and the full text of the Court's opinion, see Related Links, below.
Copyright © 2026 eLLeNow.com All Rights Reserved.
