Petition for Writ of Certiorari — Virginia v. Black

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Supreme Court, U.S.

@) FILED

. 011107 Jan 24 2002

No. _ @FFICE OF THE CLERK

In The

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner,

Vv.

BARRY ELTON BLACK, RICHARD J. ELLIOTT,

AND JONATHAN O’MARA,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court Of Virginia

PETITION FOR WRIT OF CERTIORARI

Jerry W. Kitcore

Attorney General of Virginia

WriuiaM H. Hurp

State Solicitor

Counsel of Record

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

(804) 371-0200 (fax)

Counsel for Petitioner

QUESTION PRESENTED

Does the Virginia statute that bans cross burning

with intent to intimidate violate the First Amendment,

even though the statute reaches all such intimidation and

is not limited to any racial, religious or other content-

focused category?

LIST OF PARTIES

The petitioner is the Commonwealth of Virginia. The

respondents are Barry Elton Black, Richard J. Elliott and

Jonathan O’Mara, each of whom was convicted under Va.

Code § 18.2-423, which prohibits cross burning with

intent to intimidate.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ..........--0sceeseeeeeees i

PTT TT TTT TT TTT TTT Tre ii

OPINIONS BELOW.............ccceescccecensecees 1

EPP T TTT TT TT TTT TTT TT TT Ty 2

CONSTITUTIONAL PROVISIONS AND STATUTE

Ey a6 eneGesceesecedecocecccesccccscscces 2

STATEMENT OF THE CASE............00:eeeeeees 2

REASONS WHY THE WRIT SHOULD BE GRANTED je

Pa ceebccccccccsveccseccccccscccescccccees 10

I. There Is a Conflict Among the States on How to

Apply R.A.V. to Cross Burning Statutes ....... 12

A. States Upholding Cross Burning Laws .... 14

B. States Striking Down Cross Burning Laws... 20

Il. There is a Conflict Between Virginia and Federal

Circuits On the Constitutionality of Anti-Intim-

idation Statutes Applied in the Context of Cross

PPSPPPPTTITITITTTTLITTLELT TT TTL 23

Ill. The Decision that the Virginia Law is “Over-

broad” is Contrary to the Overbreadth Doctrine

of this Court, and Creates a Conflict Among the

DPESUEREhebsbetbecctoscescenccceecccccccces 26

TABLE OF AUTHORITIES

Page

Cases

Barnes v. United States,

GES GA Gy GOED cccccccccccccccccdocseneccesesa 28

Black » Commonwealth of Virginia,

262 Va. 764, 553 S.E.2d 738 (2001)............. passim

Broadrick v. Oklahoma,

GED WB. GER GRBG ED occ ccccccccccccccccccccccces 26, 27

Capitol Souare Review & Advisory Bd. v. Pinette,

ij > < Sane b yer aerEReED of

Grayned v. City of Rockford,

GD Ws BED GOED oc cv cccccccdcccscccesccesecceses 27

In re Steven S.,

31 Cal. Rptr. 2d 644 (Cal. App. 1994),

review denied, 1994 Cal. 5185

Gates BIDE so cccccccsccceccencvescesevceses 12, 19, 29

North Carolina Right to Life, Inc. v. Bartlett,

168 F.3d 705 (4th Cir. 1999)... 2... .. ccc cece eee enees 28

O’Mara v. Commonwealth of Virginia,

33 Va. App. 525, 535 S.E.2d 175 (2000)........... 1, 8

R.A.V. v. ~ 4 St. Paul,

SED DB. BOF GUE o ce cccuscscccsccccccedocees passim

State v. T.B.D.,

656 So.2d 479 (Fla. 1995),

ceri. denied, 516 U.S. 1145 (1996) ....... 10, 14, 15, 29

State v. OE

G30 SE.2E Sil GA. BGG. 20. cccccccccccccccccvess 20

State v. Sheldon,

GD BBE FEW Ce cccccncccccdavesecccssctesi 21, 22

TABLE OF AUTHORITIES - Continued

Page

State v. Talley,

658 P.2d 217 (Wagh. 1993).......cccccccccccees passim

State v. Vawter,

ee See ee EE, EE cncccoccceveccescocccecees 22

United States v. Hayward,

United States v. J.H.H., et al.,

Se ee GD GD DE ccceccccocésscodeccecess 24

Vermont Right to Life Committee, Inc. v. Sorrell,

oF Pp Lf fe & Ferrer ee 28

Virginia v. American Booksellers Ass‘n,

EE, SE ET o ccnecngcaescetdoeedcoeecesetes 28

CONSTITUTIONS

United States Constitution,

DEED BIE occ ccccccccccccccccccscccence passim

United States Constitution,

I noc ecccgeseeeeness 2,4

Virginia Constitution, Art. 1, § 12.............--0+4+- 7

State STATUTES

Cal. Penal Code § 11411(c)............cceeeeeeeeeees 19

Cal. Penal Code § 11411(d) ............. ccc eeeeeenee 19

BS, Gee AGE. Bi, B TA cccccccccccccccccccoccccces 21

Ss SED cncccccccccccccccccescoccecooeesces 22

BOW DABEGERE) 2 nc ccccccccccccccccccccccccccccces 16

TABLE OF AUTHORITIES - Continued

Page

S.C. Code Ann. 16-7-120......... 0 ccc cee cece eeeeeees 20

S.C. Code Ann. 16-13-550.. 2.1... ec cece eee e eens 20

Va. Code § 18.2-423.........ccccccceeeeeeeeeeees passim

Wa. Codie © BDBGBS... ccccccccccvccccccccccscccccecccs 5

FEDERAL STATUTES

BD BG, BBP cc cccccccccccciccccccsccccscesssccess 2

GB UBL. 8 BBB. ccccccccvccccscccccccsccscsceces 23, 24

PETITION FOR WRIT OF CERTIORARI

The Commonwealth of Virginia respectfully petitions

this Court for a writ of certiorari to review the judgment

of the Supreme Court of Virginia, which held that the

First Amendment is violated by the Virginia statute pro-

hibiting cross burning with “the intent of intimidating

any person.”

OPINIONS BELOW

The Supreme Court of Virginia held that Virginia

Code § 18.2-423 - which bans cross burning with the

intent to intimidate - is unconstitutional, and thus

reversed the convictions of three defendants. This deci-

sion is published as Black, et al. v. Commonwealth of Vir-

ginia, 262 Va. 764, 553 S.E.2d 738 (2001), and is reprinted

in the Appendix at App. 1. The opinion of the Court of

Appeals of Virginia affirming the convictions of two

defendants, Jonathan O’Mara and Richard J. Elliott, is

published as O’Mara, et al. v. Commonwealth of Virginia, 33

Va. App. 525, 535 S.E.2d 175 (2000). It is reprinted at App.

47. The unpublished per curiam order of the Court of

Appeals of Virginia affirming the conviction of the third

defendant, Barry Elton Black, is reprinted at App. 46. The

letter opinion of the Circuit Court of Carroll County

overruling Black’s motion to dismiss the indictment is

reprinted at App. 61. The record of the ruling whereby

the Circuit Court of the City of Virginia Beach overruled

Elliott’s and O’Mara’s motions to dismiss the indictments

is reprinted at App. 79. See also App. 74.

JURISDICTION

The opinion of the Supreme Court of Virginia was

entered on November 2, 2001. This Court has jurisdiction

pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED

The First Amendment to the Constitution of the

United States provides that “Congress shall make no

law ... abridging the freedom of speech....” The

Fourteenth Amendment provides that “ . . . nor shall any

State deprive any person of life, liberty, or property,

without due process of law... . ”

Virginia Code § 18.2-423 states:

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 person who

shall violate any provision of this section shall

be guilty of a Class 6 felony.

Any such burning of a cross shall be prima

facie evidence of an intent to intimidate a per-

son or group of persons.

STATEMENT OF THE CASE

For nearly a half-century, the Commonwealth of Vir-

ginia has banned the fear-inspiring practice of cross burn-

ing. Enacted in 1952, the statute at issue - Va. Code

§ 18.2-423 - was a well-advised response to domestic

terrorism by the Ku Klux Klan.’ Yet, the statute is not

limited to that group, nor to those whose acts of intimida-

tion spring from similar racial or religious bigotry.

Instead, the statute bans cross burning by anyone whose

intent is to intimidate anyone for any reason.

The case at bar involves a consolidated appeal arising

out of three separate convictions for violating the cross

burning statute. Two of the convictions involved co-

defendants in a 1998 act of cross burning in Virginia

Beach. The third conviction involved a separate cross

burning incident in 1998 in Carroll County, part of rural

Southwest Virginia. The facts of each case are as follows:

Virginia Beach - May 2, 1998: There is no evidence

that Richard J. Elliott and Jonathan O’Mara are members

of the Klan. The record does not show that they hold any

particular views on politics or race or any other subject.

They tried to burn a cross in the yard of Elliott’s next

door neighbor, James S. Jubilee, simply because they

wanted to “get back” at Jubilee by intimidating him and

his family.

An African-American and native Virginian, Jubilee

had recently moved back to the Commonwealth from

California, along with his wife and two sons. Elliott J.A.

52, 93.2 The family had lived in their new neighborhood

for about four months when, on May 2, 1998, Jubilee

asked Elliott’s mother about “some shooting” that was

1 The Virginia Supreme Court took notice of the public

history of the times in which the cross burning statute was

originally enacted, citing a series of nine newspaper articles

appearing between 1949 and 1952. Copies of these articles are

reproduced at App. 86-101.

2 “Elliott J.A.” refers to the Joint Appendix filed in the

Virginia Supreme Court in the Elliott case.

going on in the rear of the Elliott home. Mrs. Elliott

explained that her son had a firing range where he shot

firearms as « hobby. Id. at 86. The conversation was

cordial. Id. at 54. Even so, Jubilee’s inquiry so angered

Elliett and O’Mara that - after drinking a lot of beer -

they hatched a plan to burn a cross that night in Jubilee’s

yard. They were joined in this endeavor by a seventeen

_year-old friend, David Targee.

Late that night, the three of them rode onto Jubilee’s

land in a pick-up truck, planted their makeshift cross, set

it cn fire and fled. Jubilee awoke the next morning - a

Sunday - to find the partially burned cross stuck in the

ground less than 20 feet from his house. Id. at 55. Initially

furious, Jubilee soon became worried and very nervous

about the incident. He was concerned about what might

come next, and saw the burnt cross as “just the first

round.” Id. at 55, 57-58. Jubilee called the police.

After an investigation, Elliott and O’Mara were iden-

tified as perpetrators. The pair were indicted for attempt-

ing to burn a cross with intent to intimidate, in violation

of Va. Code § 18.2-423.5 Before trial, both defendants

moved to dismiss the indictments based on their claim

that the cross burning statute is unconstitutional. Heard

in a consolidated hearing, both motions were denied by

the trial court:

The defendants maintain that as a content-

based regulation of speech . . . the statute vio-

lates the First and Fourteenth Amendments

3 The third perpetrator, David Targee, was also

and became the key witness for the prosecution. See Elliott J.A.

67-106. His case was handled in juvenile and domestic relations

district court and is not addressed in the decision that is the

subject of this petition.

. and have moved to dismiss the case

. .. [T]he court is going to overrule the defen-

dants’ motions... .

Transcript of Hearing, Jan. 20, 1999, App. 79-80.

Tried by a jury in February of 1999, Elliott was con-

victed of attempted cross burning. App. 71-72. On May 6,

1999, the circuit court sentenced Elliott to 90 days in jail

and fined him $2,500, in accordance with the jury’s ver-

dict. App. 69-70. Elliott then appealed.

Meanwhile, after losing his motion to dismiss,

O’Mara entered a conditional guilty plea under Va. Code

§ 19.2-254, thereby preserving his constitutional objec-

tion. On April 26, 1999, the circuit court imposed on

O’Mara a sentence of 90 days in jail and a fine of $2,500.

Half of the jail time and $1,000 of the fine were sus-

pended. App. 77-78. O’Mara then appealed.

With their cases consolidated on appeal, “both

O’Mara and Elliott . . . maintain[ed] . . . ‘that the code

section [§ 18.2-423] is unconstitutional as violative of the

free speech and expression protections’ guaranteed by

both the United States and Virginia Constitutions.” App.

48. The Virginia Court of Appeals disagreed:

We, therefore, conclude that Code § 18.2-423

suffers from none of the several unconstitutional

infirmities advanced by defendants. The statute

targets only expressive conduct undertaken with

the intent to intimidate another, conduct clearly

proscribable both as fighting words and a threat of

violence. The statute does not discriminate in its

prohibition and is neither overbroad nor under-

inclusive.

Accordingly, we affirm the convictions.

App. 57 (emphasis added). Elliott and O’Mara then

appealed to the Virginia Supreme Court, which consoli-

dated their cases with the appeal of the third cross burn-

ing defendant, whose case will now be discussed.

Carroll County - August 22, 1998: Unlike the other

two defendants, Barry Elton Black is a Klansman. A

leader in the Klan, Black headed a rally and cross burning

in Carroll County, Virginia, on the evening of August 22,

1998. Black J.A. 128.4 This incident took place on private

property with the permission of the owner — but in public

view, a fact the decision below does not note. While a

part of the property could not be seen from the roadside,

this was not the spot chosen for erecting the cross.

Instead, it was erected and burned where passers-by

could clearly observe it. Standing 25 to 30 feet tall, the

burning cross was visible along a three-quarter mile

stretch of state roadway, where cars passed at the rate of

about 40 to 50 per hour. Id. at 124, 125, 156, 157. The

reaction of one black family driving along the road was

noted by a deputy sheriff. They “stopped and looked

across the field” toward the burning cross, then “took off

at a higher than normal rate of speed.” Id. at 156, 157.

The burning cross was also in view of 8 to 10 houses,

including the home of Rebecca Sechrist. Id. at 125. She

heard Klan speakers “talk real bad about the blacks and

the Mexicans.” Id. at 176. “One guy got up and said he

would love to take a .30/.30 and just random[ly] shoot

4 “Black J.A.” refers to the Joint Appendix filed in the

Virginia Supreme Court in the Black case.

the blacks. .. . ” Id. at 176. So intimidating was the scene

that Mrs. Sechrist - who is neither black nor Hispanic -

“sat there and .. . cried,” scared that the Klan might burn

her home. Id. at 178, 181.

Admitting his responsibility for the cross burning,

Black was arrested by the county sheriff and a deputy for

violating Va. Code § 18.2-423. En route to jail with the

deputy, Black volunteered his complaint about “blacks

and Mexicans . . . walking up and down the sidewalk

with white women holding hands and taking all the

jobs,” and he asked “when is the white man going to

stand up to the blacks and Mexicans in this area?” Id. at

155.

Black defended against the charge by challenging the

constitutionality of the statute, moving to dismiss his

indictment on the theory that the statute violates the First

Amendment of the United States Constitution and Article

I, § 12 of the Virginia Constitution.5 In a letter opinion,

the trial court rejected Black’s arguments, saying:

This Court accepts the Commonwealth’s

position that the Code Section 18.2-423 reaches

only the crime of intimidation when an accused

actually intended to intimidate others by his

actions, such limitation saves the statute from

being a proscription of speech in violation of the

First Amendment and .. . the Virginia Constitu-

tion.

* » .

5 Black’s motion argued, inter alia, that § 18.2-423

discriminates on the basis of content and viewpoint, that its

prima facie evidence standard creates an unconstitutional

presumption, and that it is vague and overbroad. App. 62.

Accordingly, the defendant’s Motion to Dismiss

is denied.

App. 64 (emphasis added).

Black was tried before a jury, who convicted him of

the offense charged. He was fined $2,500, and appealed.

App. 58-60. The Virginia Court of Appeals also rejected

Black’s free speech claims. Having already decided the

Virginia Beach case a few weeks earlier, the Court of

Appeals issued a one sentence opinion, affirming the

judgment of the trial court “for the reasons stated in

O’Mara v. Commonwealth.” App. 46.6 Black again

appealed. :

6 The issues raised by Black and rejected by the Virginia

Court of Appeals were:

1. Does Virginia’s cross burning statute, promulgated by

section 18.2-423 of the Code of Virginia, engage in

viewpoint discrimination in violation of the First

Amendment to the United States Constitution?

2. Does Virginia’s cross burning statute, promulgated by

section 18.2-423 of the Code of Virginia, violate the First

Amendment by failing to incorporate the standard imposed

by the Supreme Court of the United States in Brandenburg v.

Ohio, holding that “the constitutional guarantees of free

speech and free press do not permit a State to forbid or

proscribe advocacy of the use of force or of law violation

except where such advocacy is directed to inciting imminent

lawless action and is likely to incite or produce such

action?”

3. Does the provision in Virginia’s cross burning statute,

promulgated by section 18.2-423 of the Code of Virginia,

stating that the “burning of a cross shall be prima facie

evidence of an intent to intimate a person or group of

persons” and permitting a jury to draw inferences of an

intent to intimidate from the mere fact of cross burning

alone, violate the First Amendment?

Black v. Commonwealth, Opening Brief of Appellant, p.1.

The Virginia Supreme Court consolidated Black’s

appeal with the appeals filed by the Virginia Beach defen-

dants, Elliott and O’Mara. Taking up the free speech

issues raised by the three defendants, the Court said:

[W]e consider whether Code § 18.2-423,

which prohibits the burning of a cross with the

intent of intimidating any person or group of

persons, impermissibly infringes upon constitu-

tionally protected speech . . . We conclude that,

despite the laudable intentions of the General

Assembly to combat bigotry and racism, the

selectivity of its statutory proscription is facially

unconstitutional because it prohibits otherwise

permitted speech solely on the basis of its con-

tent, and the statute is overbroad.

App. 1-2 (emphasis added). Having resolved the case

based on the federal constitutional issues, the Court

found it unnecessary to address the defendants’ state

constitutional claims. App. 18, n.9.

By a vote of 4 to 3, the Virginia high court struck

down the Commonwealth’s cross burning law, believing

it to be “analytically indistinguishable” from the St. Paul

ordinance declared unconstitutional in R.A.V. v. City «f St.

Paul, 505 U.S. 377 (1992). App. 7. The court reachea his

result by overlooking two substantial differences between

the two laws. First, the Virginia statute includes an

“intent to intimidate” element wholly lacking from the St.

Paul ordinance, which dealt only with “fighting words.”

505 U.S. at 380. Second, the St. Paul ordinance contained

a content-based element of “race, color, creed, religion or

gender” wholly missing from the Virginia statute, which

bans use of a burning cross to intimidate anyone for any

reason. It was these differences that led three Justices of

the Virginia Supreme Court to dissent. See App. 36.

The Virginia Supreme Court also found fault with

that part of the statute that makes the burning of a cross

prima facie evidence of an intent to intimidate. This pro-

vision is simply a permissible inference. The Common-

wealth still bears the burden of proving its case -

including the intent elexwent - beyond a reasonable

doubt. Yet, the court belie ed that such a statutory infer-

ence could lead to the arrest and prosecution - albeit

acquittal - of persons who had no intent to intimidate

and whose speech was constitutionally protected. The

court believed that such a possibility made the law

unconstitutional under the overbreadth doctrine.

REASONS WHY THE WRIT SHOULD BE GRANTED

Summary

“Few things can chill free expression and

association to the bone like night-riders outside the door

and a fiery cross in the yard.”

State v. T.B.D., 656 So.2d 479, 482 (Fla. 1995).

This case involves two important freedoms: freedom

of speech and freedom from fear. In an attempt to leave

the first freedom intact, while securing the second, the

Virginia General Assembly long ago enacted a ban on

cross burning, but only when accompanied by an intent to

intimidate someone. The Virginia law does not limit its

protection to those of a particular race, religion or back-

ground. It protects everyone. Even so, the Virginia

Supreme Court has read this Court’s decision in R.A.V. v.

City of St. Paul, 505 U.S. 377 (1992), to mean that such a

law constitutes unconstitutional content discrimination.

Such a result exacerbates a growing conflict among state

courts of last resort about what R.A.V. means for state

laws banning the burning of crosses. The Virginia deci-

sion is also in conflict with federal courts of appeal that

have upheld anti-intimidation statutes in the context of

cross burning episodes. This Court should grant certiorari

in order to resolve these conflicts and provide guidance

to the States on how they may constitutionally accommo-

date their fundamental interest in preserving these two

freedoms.

Additionally, the Virginia decision greatly expands

the overbreadth doctrine as previously recognized by this

Court in its First Amendment jurisprudence. The Virginia

law is not vague nor do its terms prohibit any speech that

is constitutionally protected. It only prohibits cross burn-

ing when there is an intent to intimidate. Consistent with

constitutional limits on the use of statutory inferences,

the Virginia law also allows - but does not require - a

jury to infer an intent to intimidate from an act of cross

burning alone, and it leaves the burden of proof squarely

on the prosecution. Looking not at the narrow scope of

the law’s prohibition - but focusing on the statutory

inference - the court below concluded that the Virginia

law is void for overbreadth. Its concern was that some-

where, somehow an innocent cross burner might be

charged. A subsequent acquittal, the court reasoned, was

not enough to avoid an unconstitutional chill In so rul-

ing, the court misunderstood what it means for over-

breadth to be real, and disregarded the need for

overbreadth to be substantial. It thus decided an impor-

tant federal question in a way that conflicts with relevant

decisions of this Court, and with relevant decisions by

another state court of last resort. For these reasons, too,

certiorant should be granted.

I. There Is a Conflict Among the States on the

Constitutionality of Cross Burning Statutes.

Strictly speaking, symbols have no inherent meaning.

Their meaning arises from the way they are employed in

the socieiy where they are found. Burning crosses were

once used in Scotland as signal fires. See In re Steven S., 31

Cal. Rptr. 2d 644, 646 (Cal. App. 1994). Early in the last

century, the Ku Klux Klan adopted the practice of cross

burning as a tactic of terrorism. See Capitol Square Review

& Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995) (Thomas,

J., concurring). Today, the practice is no longer limited to

the Klan, as shown by the incident involving Elliott and

O’Mara.

Today, a burning cross - standing alone and without

explanation - is typically understood in our society as a

message of intimidation. This is so regardless of the race,

religion or other characteristics of the individual tar-

geted. A white, middle-class Protestant waking up at

night to find a burning cross in the street outside his

home will reasonably understand that someone is threat-

ening him. His reaction is likely to be very different than

if he were to find, say, a burning circle or square. In the

latter case, he may call the fire department. In the former,

he will probably call the police.

So harmful - and so persistent - is the practice of

cross burning that, over the years, a number of States

have enacted statutes that ban it in one form or another.

The question of how States may ban cross burning - when

the intent is to intimidate - is an important question of

federal law that this Court should address. Some guid-

ance was given ten years ago in R.A.V. v. City of St. Paul,

505 U.S. 377 (1992), where the Court struck down an

ordinance of St. Paul, Minnesota. The ordinance crimi-

nalized the placing of a symbol, including a burning

cross, “which one knows or has reasonable grounds to

know arouses anger, alarm or resentment in others on the

basis of race, color, creed, religion or gender.” Id. at 380.

The Court described this language as “content-based dis-

crimination,” and held the ordinance to be “facially

unconstitutional in that it prohibits otherwise permitted

speech solely on the basis of the subjects the speech

addresses.” Id. at 381, 393.

In the wake of R.A.V., laws prohibiting cross burning

have been challenged in several States. As detailed below,

the results are in conflict. In three States - South Carolina,

Maryland and New Jersey - the statutes were struck

down in the belief that R.A.V. dictated such a result. In

other three States - Florida, Washington and California -

the statutes were upheld, based on perceived distinctions

with R.A.V., including three R.A.V. authorized exceptions.

With the decision below, the Virginia Supreme Court

has joined the first group of courts, holding the Virginia

statute to be “analytically indistinguishable” from the St.

Paul ordinance. The court reached this result despite two

major differences between the two laws. The Virginia

statute includes an “intent to intimidate” element not

found in the St. Paul ordinance. Moreover, the Virginia

statute bans cross burning to intimidate anyone for any

reason, and thus lacks the content-based element of “race,

color, creed, religion or gender” that this Court found

problematic in R.A.V. These differences between the Vir-

ginia law and the one invalidated in R.A.V. make this

petition a good vehicle for resolving the conflict and

providing additional guidance in this important area of

constitutional law.

A. States Upholding Cross Burning Laws.

The decision by the Virginia Supreme Court conflicts

with decisions in three States upholding cross burning

laws.

1. Florida: The Florida Supreme Court upheld that

State’s cross burning law in State v. T.B.D., 656 So. 2d 479

(Fla. 1995), cert. denied, 516 U.S. 1145 (1996). Florida’s

statute is limited to cross burnings on private property,

but does not require an intent to intimidate.” The Florida

defendant challenged his conviction on grounds similar

to those argued by the three Virginia cross burners, claim-

ing the Florida law was content discrimination, and

invalid under R.A.V. In rejecting this argument, the Flor-

ida Supreme Court adopted the same rationale unsuc-

- cessfully argued by the Commonwealth in defense of the

Virginia law:

The present statute comports with R.A.V.

because the Florida prohibition is “not limited

to [any] favored topics,” but rather cuts across

the board evenly. No mention is made of any

special topic such as race, color, creed, religion

or gender.

7 Section 876.18, Fla. Stat. (1993) provides:

Placing burning or flaming cross on property of

another. - It shall be unlawful for any person or

persons to place or cause to be placed on the property

of another in the state a burning or flaming cross or

any manner of exhibit in which a burning or flaming

cross, real or simulated, is a whole or part without

first obtaining written permission of the owner or

occupier of the premises to so do. Any person who

violates this section commits a misdemeanor of the

* * *

The statute is a legitimate legislative

attempt to protect Floridians of every stripe

from a particularly reprehensible form of tyr-

anny. The statute plays no favorites - it protects

equally the Baptist, Catholic, Jew, Muslim; the

Communist, Bircher, Democrat, Nazi, Republi-

can, Socialist; the African-American, Caucasian,

Haitian, Hispanic, native American, Vietnamese;

the heterosexual, the male homosexual, the les-

bian; the established politician, the neophyte,

the activist; the author, the editor, the publisher;

the artist, the curator; the teacher, the school

administrator; the union organizer, the plant

owner.

656 So. 2d 481, 482.

The conflict between the results in Florida and Vir-

ginia could hardly be more dramatic. Indeed, the Virginia

requirement that there be an “intent to intimidate” - an

element wholly missing from Florida’s statute - rein-

forces the constitutionality of the Virginia law. If the

Florida law does not run afoul of R.A.V., then a fortiori the

Virginia law is not invalid under R.A.V. either. This Court

should grant the petition in order to resolve the conflict.

2. Washington: In State v. Talley, 858 P.2d 217

(Wash. 1993), the Supreme Court of Washington rejected a

R.A.V.-based challenge to a statute that prohibited var-

ious acts, including cross burning, with “intent to intimi-

date or harass another person” because of that person's

“race, color, religion, ancestry, national origin, or mental,

physical or sensory handicap.”® The court found that the

Washington ordinance qualified for all three exceptions to

the prohibition against content discrimination, as

announced in R.A.V. by Justice Scalia. If these exceptions

save the Washington statute, they should also save the

Virginia law.

a. The first R.A.V. exception is where the “basis for

the content discrimination consists of the very reason the

entire class of speech at issue is proscribable.” R.A.V., 505

U.S. at 387 (emphasis added). The Washington court

found that the law at issue qualified for this exception on

8 The Washington statute provided:

(1) A person is guilty of malicious harassment if he

maliciously and with the intent to intimidate or

harass another person because of, or in a way that is

reasonably related to, associated with, or directed

toward, that person’s race, color, religion, ancestry,

national origin, or mental, physical, or sensory

handicap:

(b) By words or conduct places another person in

reasonable fear of harm to his person or property or

harm to the person or property of a third person. Such

words or conduct include, but are not limited to, (i)

cross burning. . . . However, it does not constitute

malicious harassment for a person to speak or act in a

critical, insulting, or deprecatory way unless the

context or circumstances surrounding the words or

conduct places another person in reasonable fear of

harm to his or her person or property or harm to the

person or property of a third person; or

RCW 9A.36.080(1).

Subsection (2) of the same statute, which made cross

burning a per se violation, was struck down by the Washington

court as overly broad. 858 P.2d at 230. The Virginia law is not a

per se statute, but requires an intent to intimidate.

the theory that those who “target a crime victim because

of that victim’s protected status” cause more harm than

those who engage in the same conduct without such

“special animus.” 858 P.2d at 207. If the first R.A.V. excep-

tion permits a law to protect persons from intimidation

based on selected categories - race, color, religion, hand-

icap, etc. - then surely the Virginia law, which protects

everyone from intimidation, must also be allowed.? The

textual neutrality of the Virginia law is important. Yet,

even if this neutrality were somehow disregarded and the

law viewed as guarding against “special animus” toward

minorities, the Virginia law would still be constitutional

under Talley, a result in conflict with the decision below.

b. The second R.A.V. exception is where the sub-

class of proscribable speech “happens to be associated

with particular secondary effects of the speech, so that the

regulation is justified without reference to the content of

the .. . speech.” R.A.V., 505 U.S. at 389 (citations and

internal quotation marks omitted) (emphasis added). The

Washington court said that, unlike the St. Paul ordinance,

the Washington law is not concerned with “the listener’s

reactions to speech” but with “the additional harm to the

victim of a hate crime and that crime’s effect on society as

a whole.” 858 P.2d at 208. The court reasoned that such

consequences qualify as “secondary effects” that bring

the Washington law within the scope of the second R.A.

exception.

9 In the trial of Black, the Commonwealth conceded that the

definition of “with the intent to intimidate,” as used in this

statute, means “a motivation to intentionally put a person or

group of persons in fear of bodily harm.” The jury was so

instructed. App. 66-67.

If the second R.A.V. exception finds a secondary

effect in the impact of hate crime on society as a whole,

then surely there is also a secondary effect when society

sees crosses burned with an intent to intimidate. Such

incidents are historically associated not with threatened

fisticuffs or other minor assault, but are a form of domes-

tic terrorism associated with threats to burn, lynch,

behead, or otherwise murder innocent victims. Indeed, in

the old newspaper articles cited by the Virginia Supreme

Court, it is clear that cross burning was not banned

because the Commonwealth wanted to suppress free

expression, as the Virginia court erroneously concluded.

App. 12. Instead, it was banned because cross burning

was understood to be a terrorist act. See, e.g. App. 89, 100.

The bill to ban such terrorism was presented to the House

of Delegates by a former FBI agent, Delegate Mills E.

Godwin, Jr., who later became twice Governor of Vir-

ginia. A newspaper reported the purpose of the measure:

“Godwin said law and order in the State were impossible

if organized groups could create fear by intimidation.”

App. 100-01. The breakdown of law and order which

Virginia sought to avoid should surely qualify as a sec-

ondary effect, and a legitimate objective of legislation

banning the burning of crosses.

c. The third R.A.V. exception applies where “the

nature of the content discrimination is such that there is

no realistic possibility that official suppression of ideas is

afoot.” R.A.V., 505 U.S. 390. The Washington court also

said the statute there qualified for this exception because

it expressly protected “discriminatory ideas and philoso-

phies when they are not combined with criminal acts.”

858 P.2d at 209. If the third R.A.V. exception is thus met,

then it must also be met by the language of the Virginia

law, which cannot be construed as reaching anything

other than criminal acts of intimidation.

In sum, the Washington decision that the cross burn-

ing statute of that State qualifies for these three R.A.V.

exceptions conflicts with the decision below to strike

down the Virginia law under R.A.V. This conflict should

be resolved through certiorari.

3. California: The conflict among the States is fur-

ther illustrated by a California decision rejecting a

R.A.V.-based challenge to that State’s cross burning law.

In re Steven S., 31 Cal Rptr. 2d 644 (Cal. App. 1994), review

denied, 1994 Cal. LEXIS 5185 (Cal. 1994). The California

law criminalized the burning of a cross or other known

religious symbol, on the property of another, without

permission, for the purpose of terrorizing the owner or

occupant, or with reckless disregard of the risk of doing

so.!° The court first held that the statute did not prohibit

constitutionally protected conduct because it was aimed

at threats, and threats are outside the First Amendment.

31 Cal. Rptr. 2d at 647-48. It then rejected a claim that the

law was content-discriminatory in violation of R.A.V,,

finding that the statute in question came within all three

10 Section 11411(c) of the California Penal Code provides,

in relevant part:

Any person who burns or desecrates a cross or other

religious symbol, knowing it to be a religious symbol,

on the private property of another without

authorization for the purpose of terrorizing the

owner or occupant of that private property or in

reckless disregard of the risk of terrorizing the owner

or occupant of that private property, . . . shall be

punished [as a felony or misdemeanor].

Section 11411(d) defines “terrorize” as “to cause a person of

ordinary emotions and sensibilities to fear for personal safety.”

of the exceptions to the content-discrimination doctrine

announced in R.A.V.

B. States Striking Down Cross Burning Laws.

The appropriateness of certiorari is enhanced by the

fact that Virginia is not the only State in conflict with

Florida, Washington and California. As the implementa-

tion of R.A.V. has percolated through the States, three

other state supreme courts — South Carolina, Maryland

and New Jersey - have struck down cross burning laws.

The issue of how R.A.V. should be applied is ripe for

consideration by this Court.

1. South Carolina: State v. Ramsey, 430 S.E.2d 511

(S.C. 1993), involved a defendant convicted of burning a

cross on the property of another and intimidation by use

of an incendiary.'! The South Carolina Supreme Court

11 The South Carolina cross burning law provided:

It shall be unlawful for any person to place or cause to

be placed in a public place in the State a burning or

flaming cross or any manner of exhibit in which a

burning or flaming cross, real or simulated, is the

whole or a part or to place or cause to be placed on the

property of another in the State a burning or flaming

cross or any manner of exhibit in which a burning or

flaming cross, real or simulated, is the whole or a

part, without first obtaining written permission of the

owner or occupier of the premises so to do.

S.C. Code Ann. 16-7-120 (1985).

Additionally, S.C. Code Ann. 16-11-550 (1985) provided, in

pertinent part: “Whoever willfully and unlawfully

communicates a threat . . . concerning an attempt...

to... intimidate any individual . . . by means of an explosive or

incendiary . . . shall be guilty of a felony...”

upheld his convictions. A few days later, this Court

decided R.A.V., and the defendant sought re-hearing. The

court then concluded that R.A.V. made the cross burning

statute unconstitutional. It also concluded that, in order

to save the intimidation statute from unconstitutionality,

it was necessary to re-interpret the term “incendiary” so

as to exclude a burning cross. Both convictions were

vacated.

2. Maryland: A Maryland statute outlawed the

burning of crosses and other religious symbols without

obtaining permission from the owner of the premises and

notifying the fire department. The law did not require an

intent to intimidate. See Md. Code (1957) Art. 27, § 10A.12

Two convicted cross burners challenged the law as

unconstitutional. One had burned a cross on the property

of a black family. The other had burned a cross on State-

owned property. Neither had obtained permission nor

given the required notice. State v. Sheldon, 629 A.2d 753,

755-56 (1993). The Maryland Supreme Court rejected the

State’s argument that it has “a compelling interest in

12 Maryland Code (1957) Art. 27, § 10A, provided:

It shall be unlawful for any person or persons to burn

or cause. to be burned any cross or other religious

symbol upon any private or public property within

this State without the express consent of the owner of

such property and without first giving notice to the

fire department which services the area in which such

burning is to take place. Any person or persons who

violates the provisions of this section shall, upon

conviction, be deemed guilty of a felony and shall

suffer punishment for a period not to exceed 3 years

or shall be fined an amount not to exceed $5,000 or

shall suffer both such fine and imprisonment in the

discretion of the court.

protecting the community against bias-motivated threats

to public safety and order.” Id. at 759. It also rejected the

claim that the law was a fire safety measure. Id. at 759.

Instead, the court struck the statute down as content-

based discrimination, holding that “the cross burning

statute does not fall within any of the R.A.V. excep-

tions... .” Id. at 762.

3. New Jersey: In State v. Vawter, 642 A.2d 349

(N.J. 1994), the Supreme Court of New Jersey struck

down a statute that prohibited “purposefully, knowingly

or recklessly” putting another in “fear of bodily violence”

through symbols that expose others to “threats of vio-

lence, contempt or hatred on the basis of race, color, creed

or religion.” Specifically listed among such symbols were

“a burning cross or Nazi swastika.” N.J.S.A. 2C:33-10.'5

Notwithstanding the mens rea and “fear of bodily vio-

lence” requirements, the court concluded that the law

was a “content-based restriction” rendered unconstitu-

tional by the decision in R.A.V. Id. at 357, 358.

13 The New Jersey statute read in full:

A person is guilty of a crime of the third degree if he

purposely, knowingly or recklessly puts or attempts

to put another in fear of bodily violence by placing on

public or private property a symbol, an object, a

characterization, an appellation or graffiti that

exposes another to threats of violence, contempt or

hatred on the basis of race, color, creed or religion,

including, but not limited to[,] a burning cross or

Nazi swastika. A person shall not be guilty of an

attempt unless his actions cause a serious and

imminent likelihood of causing fear of unlawful

bodily violence.

N.J.S.A. 2C:33-10.

In sum, three States have read R.A.V. to allow their

cross burning statute to survive. Four States - including

Virginia - have read R.A.V. to invalidate their statutes.

The difference in outcome cannot be explained by differ-

ence in statuiory texts, but reflects fundamentally differ-

ent understandings of what R.A.V. means. The conflict is

mature and should now be resolved through certiorari.

Il. There is a Conflict Between Virginia and Federal

Circuits On the Constitutionality of Anti-Intimida-

tion Statutes Applied in the Context of Cross burn-

ing.

The conflict in how to apply R.A.V. does not just exist

among States. There is also a conflict between Virginia

and two federal circuits - the Eighth and Seventh. After

this Court’s decision in R.A.V., the United States Attorney

for the District of Minnesota brought federal civil rights

charges against the young cross burner who prevailed

there, along with two juvenile co-defendants. The basis of

the charges was the same cross burning spree that led to

the state law prosecutions in R.A.V. Of particular note

was the new federal charge brought under 42 U.S.C.

§ 3631, which provides:

Whoever . . . by force or threat of force

willfully injuries [sic], intimidates or interferes

with, or attempts to injure, intimidate or inter-

fere with -

(a) any person because of his race, color,

religion, sex, handicap . . . familial status .. . or

national origin and because he is...

occupying ... any dwelling...

[shall be guilty of an offense against the

United States]...

The defendants were convicted and appealed to the

Eighth Circuit, claiming that the convictions could not

stand because the expressive act of cross burning is pro-

tected speech under the decision in R.A.V. The Eighth

Circuit rejected the argument and upheld the convictions.

United States v. J.H.H., et al., 22 F.3d 821 (8th Cir. 1994). In

so doing, the court held that, even if the statutes at issue

made content distinctions, they came within the third

R.A.V. exception, because “they are of a kind that poses

‘no significant danger of idea or viewpoint discrimina-

tion.’ ” Id., quoting R.A.V., 505 U.S. at 388. This conclu-

sion echoes the result reached earlier by the Supreme

Court of Washington in Talley, an opinion whose conflict

with the case at bar has already been discussed. See supra

at 15.

Additionally, the Eighth Circuit expressly drew a dis-

tinction between cross burning “done with the specific

intent to intimidate” and cross burning “done for the sole

purpose of making a political statement.” Id. at 826. The

court held that the former sort of cross burning could be

prohibited, but not the latter. By definition, the Virginia

statute only prohibits cross burning when there is a speci-

fic intent to intimidate, and thus meets the post-R.A.V.

standard in the Eighth Circuit. By striking down the

Virginia law, the Virginia Supreme Court has created a

conflict with a federal court of appeals on an important

issue of constitutional law.

There is also a conflict between Virginia and the

Seventh Circuit. In United States v. Hayward, 6 F.3d 1241

(7th Cir. 1993), charges were brought against another pair

of cross burners for violating 42 U.S.C. § 3631. The com-

ments of the court are telling:

[T]he evidence showed that the defendants

burned the crosses to tell those in the Jones

household (and no doubt to anyone else who

saw the burning crosses) that black people were

unwelcome in Keeneyville and that association

with blacks was not approved.

No doubt, the defendants wanted to express

their dislike, even hatred, of blacks through the

cross burnings. But the act of cross burning also

promotes fear, intimidation, and psychological

injury. Therein lies the reason cross burning, as

done in this case, lacks First Amendment protec-

tion.

6 F.3d at 1250 (emphasis added). The Seventh Circuit -

like the Eighth — found that cross burning for the purpose

of intimidation can be prosecuted, even under a statute

that includes the same sort of content-based categories —

race, color, religion, sex, handicap, familial status and

national origin — that were problematic in R.A.V. The

Virginia statute has no such categories. It applies when-

ever anyone burns a cross to intimidate anyone for any

reason. If Virginia Supreme Court was correct in striking

down such a content-neutral statute, then a fortiori the

Seventh and Eighth Circuits must have erred in uphold-

ing content-based prohibitions on intimidation. Con-

versely, if these federal circuits were correct, then it was

the Virginia court that erred. There is a major conflict

here, which this Court should resolve.

III. The Decision that the Virginia Law is “Overbroad”

is Contrary to the Overbreadth Doctrine of this

Court, and Creates a Conflict Among the States.

The Virginia Supreme Court also ruled that the cross

burning statute is void under the overbreadth doctrine,

citing Justice White’s concurrence in R.A.V. App. 16. The

court misread what Justice White had to say.'* Indeed,

what the opinion below calls “overbreadth” bears little

resemblance to the overbreadth doctrine as explained by

this Court, or as applied by Justice White in R.A.V. As a

result, there is a conflict between state high courts on

overbreadth challenges to cross burning bans. Certiorari

should be granted in order to correct the Virginia

Supreme Court's failure to follow the precedents of this

Court, and to resolve the resulting conflict among States.

It may be helpful to begin by reviewing what the

overbreadth doctrine means. Under traditional rules of

standing, “constitutional rights are personal and may not

be asserted vicariously.” Broadrick v. Oklahoma, 413 U.S.

601, 610 (1973). Similarly, a person whose conduct may be

constitutionally prohibited by statute, is unable to chal-

lenge the statute on the grounds that the same statute

might be applied unconstitutionally to someone else

whose conduct is not before the court. Id. The over-

breadth doctrine alters these traditional rules of standing.

In the area of the First Amendment, “[l]itigants . . . are

permitted to challenge a statute not because their own

rights of free expression are violated, but because . . . the

statute’s very existence may cause others not before the

court to refrain from constitutionally protected speech or

14 Justice White was joined by Justices Blackmun and

O’Connor, and was joined in part by Justice Stevens.

expression.” Id. at 612. In other words, where the statute

in question might chill speech protected by the First

Amendment, those who are before the court have stand-

ing to challenge the statute on its face, even if their own

conduct is not so protected.

There is more. The overbreadth doctrine contains not

just a rule of standing, but also a rule of decision-making.

Not every case of overbreadth is fatal. As the Broadrick

court explained, overbreadth analysis is “strong medi-

cine” and should be applied “sparingly and only as a last

resort.” Id. at 13. “[P]Jarticularly where conduct and not

merely speech is involved, . . . the overbreadth of a

statute must not only be real, but substantial as well,

judged in relation to the statute’s plainly legitimate

sweep.” Id. at 614. On both of these issues - whether

overbreadth is real and whether it is substantial - the

Virginia Supreme Court made decisions about over-

breadth that merit review by this Court.

Under this Court’s precedents, in order for there to

be real overbreadth, the statute’s prohibitory terms must be

so broad — or so vague — as to forbid expression that is

constitutionally protected. See e.g., Grayned v. City of Rock-

ford, 408 U.S. 104 (1972) (holding that statute is overbroad

“if in its reach it prohibits constitutionally protected con-

duct.”) But, the Virginia cross burning statute contains no

such flaw. By its terms, the law only bans cross burning

when there is an intent to intimidate someone. There are

no circumstances where such intimidation is constitu-

tionally protected, and the court below did not suggest

otherwise.

Instead of looking at the prohibitory terms, the court

focused on the statutory inference, which allows a jury to

infer an intent to intimidate, based on the act of cross

burning alone. The court did not doubt that the prosecu-

tor still must prove every element of the offense — includ-

ing intent - beyond a reasonable doubt. What

concerned the court was the possibility that an innocent

cross burner - i.e. one who burns a cross without an intent

to intimidate - might still be arrested and prosecuted.

The conduct of such a person is not barred by the statute;

yet the court thought the prospect of a trial might chill

innocent expression. The possibility that someone who

has not violated a statute might be mistakenly charged is

inherent in law enforcement and is not what the over-

breadth doctrine has heretofore sought to address. Thus,

the decision below represents a novel reading of what

real overbreadth means.’ At best, it is an expansion of

15 The juries in both Black and Elliott were so instructed.

App. 66, 75-76. In Black, the jury was also instructed that it

might find such intention from the act of burning the cross in

public. App. 67. Moreover, the test for the constitutionality of

statutory inferences is (i) whether the state retains the burden of

proof on the fact to be presumed, and (ii) whether “it can be said

with substantial assurance that the presumed fact is more likely

than not to flow from the proved fact on which it is made to

depend.” Barnes v. United States, 412 U.S. 837, 843 (1973). The

inference in the Virginia cross burning statute clearly meets this

test, and the decision below does not suggest otherwise.

16 In its overbreadth discussion, the Virginia Supreme

Court cites the concurring opinion of Justice White in R.A.V., as

well as decisions in three other cases: Virginia v. American

Booksellers Ass'n, 484 U.S. 383, 392-93 (1988); North Carolina Right

to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th Cir. 1999); Vermont

Right to Life Committee, Inc. v. Sorrell, 221 F.3d 376, 382 (2nd Cir.

2000). See App. 16. Yet, each of these cases involved overbreadth

in the conventional sense of a statute which by its terms bans

protected speech. None involved the concern about potentially

erroneous arrests that the court wishes to add to the

overbreadth doctrine.

the doctrine and, thus, presents an important federal

issue on which this Court ought to rule. At worst, it is a

failure to abide by the precedents of this Court, which

ought to be corrected. In either case, the issue merits

certiorari.

The Virginia Supreme Court also decided - albeit

implicitly - that the number of innocent cross burners

chilled is substantial in relation to the number who burn

crosses with an intent to intimidate. Such a conclusion is

implausible and unsupported by any analysis in the opin-

ion below. Moreover, it is in conflict with the decision of

tle Florida Supreme Court, which rejected an over-

breadth challenge to the cross burning law of that State:

“Although one might be able to imagine a hypothetical

situation wherein the statute could be impermissibly

applied, the threat of overbreadth is speculative at best

and is insufficiently substantial to invalidate the statute

on its face.” State v. T.B.D., 656 So.2d at 482.17 The Vir-

ginia statute is even narrower than its Florida counter-

part. While the Florida law applies only to cross burnings

on the land of another - and not on highways and other

public places — it lacks the critical “intent to intimidate”

element that confines the reach of the Virginia law. To say

the Virginia law is overbroad, but the Florida law is not,

constitutes a conflict that should be resolved by certiorari.

17 See also In re Steven S., where the California Court of

Appeal reached a similar result, 31 Cal. Rptr. 2d 644 (1994), and

the Supreme Court of California denied review. 1994 Cal. LEXIS

5185 (Sept. 22, 1994).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted:

COMMONWEALTH OF VIRGINIA

Jerry W. Kitcore

Attorney General of Virginia

WituiaM H. Hurp

State Solicitor

Counsel of Record

January 24, 2002

TABLE OF CONTENTS

Appendix

Opinion, Supreme Court of Virginia, Black, et al.

v. Commonwealth ...... 2.6000 cc eeeeceeeeeeees App.

Opinion, Court of Appeals of Virginia, Black v.

Commonwealth .........0cccceeeceeeeeeeeeeees App.

Opinion, Court of Appeals of Virginia, O’Mara,

et al. v. Commonwealth ............60eeeeeeees App.

Order, Circuit Court of Carroll County, Common-

wealth v. Black (June 28, 1999) (conviction and

SOTAGIGE) oo ccc cccccccccccecccccccencccccceees App.

Letter Opinion, Circuit Court of Carroll County,

Commonwealth v. Black (March 18, 1999) (deny-

ing motion to dismiss)...............00e+e005 App.

Jury Instructions and Verdict Form, Circuit Court

of Carroll County, Commonwealth v. Black....... App.

Order, Circuit Court of the City of Virginia

Beach, Commonwealth v. Elliott (May 6, 1999)

(imposing sentence) .............eeee eee eens App.

Order, Circuit Court of the City of Virginia

Beach, Commonwealth v. Elliott (Feb. 25, 1999)

(jury trial and verdict)................-eeeees App.

Order, Circuit Court of the City of Virginia

Beach, Commonwealth v. Elliott (Jan. 25, 1999)

(denying motion to dismiss)................. App.

Jury Instructions, Commonwealth v. Elliott..... App.

Order, Circuit Court of the City of Virginia

Beach, Commonwealth v. O'Mara (May 6, 1999)

(imposing sentences) ............+.0eeeeeeees App.

ii App. 1

TAB -

LE OF CONTENTS - Continued [IN THE SUPREME COURT OF VIRGINIA]

Page :

Transcript, Circuit Court of the City of Vi Present: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and

, oO 1 re) ini +s *

Beach, Co ‘Ae. O aa clan. Lemons, JJ., and Whiting, S.J.

v. Elliott (jan. 20, 1999) (ruling of court denying BARRY ELTON BLACK

motions to dismiss the indictments) ........... App. 79 vy. Record No. 010123

Newspaper articles cited by Supreme Court of COMMONWEALTH OF

Virginia 090906006060-00606660066 006666 sd606066 App. 86 VIRGINIA

RICHARD J. ELLIOTT

OPINION BY JUSTICE

v. Record No. 003014 DONALD W. LEMONS

COMMONWEALTH OF November 2, 2001

VIRGINIA

JONATHAN O’MARA

v. Record No. 010038

COMMONWEALTH OF

VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In these appeals, we consider whether Code

§ 18.2-423, which prohibits the burning of a cross with the

intent of intimidating any person or group of persons,

impermissibly infringes upon constitutionally protected

speech. The case of Black v. Commonwealth involves a Ku

Klux Klan rally on private property with the permission

of the owner, where a cross was burned as a part of the

ceremony. The companion cases of O’Mara v. Common-

wealth and Elliott v. Commonwealth involve the attempted

* Justice Keenan did not participate in the hearing and

decision of this case.

App. 2

burning of a cross in the backyard of the home of James S.

Jubilee (“Jubilee”), an African-Americaii, without permis-

sion. We conclude that, despite the laudable intentions of

the General Assembly to combat bigotry and racism, the

selectivity of its statutory proscription is facially uncon-

Stitutional because it prohibits otherwise permitted

speech solely on the basis of its content, and the statute is

overbroad.

FACTS AND PROCEEDINGS BELOW

The prosecutions of Richard J. Elliott (“Elliott”) and

Jonathan O’Mara (“O’Mara”) arose from a single incident

in the City of Virginia Beach. On May 2, 1998, Elliott and

O’Mara attended a party at the home of David Targee

(“Targee”). Elliott told several people at the party that his

neighbor, Jubilee, had complained about the discharge of

firearms in Elliott's backyard. In response, Elliott sug-

gested they burn a cross in Jubilee’s yard.

Elliott, O’Mara, and Targee hastily constructed a

crude wooden cross in Targee’s garage. While transport-

ing the cross to the Jubilee home, Elliott referred to

Jubilee with a racial epithet confirming Jubilee’s race.

Upon arriving at Jubilee’s home, O’Mara put the cross in

the ground and attempted to light it.

In addition to the epithet, the record is replete with

references to Jubilee’s race. In the Commonwealth’s

motion for joinder of defendants in the Elliott and

O’Mara cases, it is stated: “Mr. James Jubilee is an Afri-

can-American.” A fire investigator with the City of Vir-

ginia Beach testified that Targee knew the Jubilees were

black before he participated in the cross burning.

App. 3

Throughout the O’Mara and Elliott prosecution, the Com-

monwealth referred to “burning a cross in a black fam-

ily’s yard.” The questions of counsel and argument to the

court are replete with references to race and racism.

Pursuant to a plea agreement, O’Mara pled guilty to

attempted cross burning and conspiracy to commit cross

burning, and was sentenced to 90 days in jail and a $2500

fine on each charge, with part of the time and fines

suspended. Under the plea agreement, O’Mara seteined

the right to appeal the constitutionality of Virginia's cross

burning statute.

Elliott was also charged with attempted cross burn-

ing and conspiracy to commit cross burning. Upon his

plea of not guilty, a jury found him guilty of attempted

cross burning, but not guilty of conspiracy. Elliott was

sentenced to 90 days in jail and was fined $2500.

O’Mara and Elliott appealed to the Court of Appeals,

alleging that the Virginia cross burning statute violated

the free speech clauses of both the United States and

Virginia Constitutions. The Court of Appeals affirmed the

convictions, holding that the statute “targets only expres-

sive conduct undertaken with the intent to intimidate

another, conduct clearly proscribable both as fighting

words and a threat of violence.” O’Mara v. Commonwealth,

33 Va. App. 525, 536, 535 S.E.2d 175, 181 (2000).

In the third case reviewed, Barry Elton Black

(“Black”) organized an2 led a Ku Klux Klan rally on

August 22, 1998, in Carroll County. Following speeches

filled with racial, ethnic, and religious bigotry, a cross

approximately 25 to 30 feet tall was ignited.

App. 4

Black was indicted for violating Virginia’s cross

burning statute. He moved for dismissal of the indict-

ment on the grounds that the statute was unconstitu-

tional. The trial court denied Black’s motion and, upon

conviction by a jury, Black was sentenced to pay a fine of

$2500.

Black appealed his conviction, and the Court of

Appeals affirmed the judgment of the trial court, “[flor

the reasons stated in O’Mara v. Commonwealth.” Black v.

Commonwealth, Rec. No. 1581-99-3, December 19, 2000, at

THE CROSS BURNING STATUTE

Code § 18.2-423, the cross burning statute, provides

that:

It shall be unlawful for any person or per-

sons, 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 person who

shall violate any provision of chis section shall

be guilty of a Class 6 felony.

Any such burning of a cross shall be prima

facie evidence of an intent to intimidate a per-

son or group of persons.

Black! contends that the cross burning statute is

unconstitutional because it engages in viewpoint and

1 Because of the similar constitutional challenges presented

in these consolidated cases, our references to Black’s

contentions shall be inclusive of those mounted by O’Mara and

Elliott.

App. 5

content discrimination and it fails to incorporate the stan-

dards articulated by the United States Supreme Court in

Brandenburg v. Ohio, 395 U.S. 444 (1969), concerning incit-

ement to, and likelihood of, imminent lawless action.

Additionally, Black contends that the provision of the

statute permitting an inference of intent to intimidate

from the mere act of burning a cross, which excuses the

Commonwealth from its proof requirement for the estab-

lishment of a prima facie case, further aggravates view-

point and content discrimination and violates the .

limitations prescribed in Brandenburg.

The geometric configuration of a single vertical bar

traversed by a single shorter horizontal bar has no

unusual inherent properties. But its symbolic meaning is

powerful. For Christians, the symbol of the cross evokes

remembrance of the crucifixion of Christ. Unfortunately,

such powerful symbols are often subject to misappropria-

tion. As recognized by Justice Clarence Thomas in his

concurring opinion in Capitol Square Review and Advisory

Bd. v. Pinette, 515 U.S. 753 (1995), the burning of a cross

has acquired a specific meaning:

There is little doubt that the Klan’s main

objective is to establish a racist white govern-

ment in the United States. In Klan ceremony, the

cross is a symbol of white supremacy and a tool

for the intimidation and harassment of racial

minorities, Catholics, Jews, Communists, and

any other groups hated by the Klan. The cross is

associated with the Klan not because of religious

worship, but because of the Klan’s practice of

cross burning. . . . The Klan simply has appro-

priated one of the most sacred of religious sym-

bols as a symbol of hate.

App. 6

In 1952, in direct response to Ku Klux Klan activities

in Virginia,? including incidents of cross burning, the

General Assembly enacted the predecessor statute to the

law at issue in these cases.3 The cross burning statute was

amended on several occasions, including an amendment

expanding the sites where cross burning may not take

place, and the addition of the inference of intent to

intimidate from the mere act of burning a cross for the

purposes of establishing a prima facie case under the

statute.*

2 See Police Aid Requested by Teacher: Cross is Burned in

Negro’s Yard, Richmond News Leader, Jan. 21, 1949, at 19; Cross

Fired Near Suffolk Stirs Probe: Burning Second in Past Week,

Richmond Times-Dispatch, Jan. 23, 1949, § 2, at 1; Huge Cross is

Burned on Hill Just South of Covington, Richmond Times-

Dispatch, Apr. 14, 1950, at 6; Cross Burned at Manakin; Third in

Area, Richmond Times-Dispatch, Feb. 26, 1951, at 4; Cross is

Burned at Reedville Home, Richmond News Leader, Apr. 14, 1951,

at 1; ‘State Might Well Consider’ Restrictions on Ku Klux Klan,

Governor Battle Comments, Richmond Times-Dispatch, Feb. 6,

1952, at 7; Bill to Curb KKK Passed by the House, Richmond Times-

Dispatch, Mar. 8, 1952, at 5; Name Rider Approved by House:

Measure Now Goes to Battle, Richmond News Leader, Feb. 23,

1952, at 1; Governor Backs Curb on Ku Klux Activities, Richmond

Times-Dispatch, Feb. 10, 1952,§ 2, atl.

3 Code § 18.1-365 stated in pertinent part:

It shall be unlawful for any person or persons to place or

cause to be placed on the property of another in the

Commonwealth of Virginia a burning or a flaming cross or any

manner of exhibit in which a burning or flaming cross, real or

simulated, is a whole or a part, without first obtaining written

permission of the owner or occupier of the premises so to do.

1952 Va. Acts ch. 483 § 2 at 777.

# See 1968 Va. Acts ch. 350 at 450; 1975 Va. Acts ch. 14 at 90,

ch. 15 at 174.

App. 7

SELECTIVE REGULATION OF

SPEECH BASED UPON CONTENT

It is well established that non-verbal, symbolic

expression is “speech,” and is as fully protected by the

First Amendment to the United States Constitution as

more traditional means of communication. See, e.g., Tinker

v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969) (wear-

ing of black arm bands by high school students as a

protest against the war in Vietnam). However pernicious

the expression may be, “[i]f there is a bedrock principle

underlying the First Amendment, it is that the govern-

ment may not prohibit the expression of an idea simply

because society finds the idea itself offensive or disagree-

able.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Any

question about the constitutional infirmity of such selec-

tive proscription of speech was resolved by the United

States Supreme Court in the case of R.A.V. v. City of St.

Paul, 505 U.S. 377 (1992).

The Virginia cross burning statute is analytically

indistinguishable from the ordinance found unconstitu-

tional in R.A.V. R.A.V. involved the prosecution of a teen-

ager who, with several other minors, allegedly assembled

a crudely made cross and burned the cross inside the

fenced yard of a black family. Id. at 379. The City of St.

Paul prosecuted under its Bias-Motivated Crime Ordi-

nance, which provided:

Whoever places on public or private property a

symbol, object, appellation, characterization or

graffiti, including, but not limited to, a burning

cross or Nazi swastika, which one knows or has

reasonable grounds to know arouses anger,

alarm ox resentment in others on the basis of

App. 8

race, color, creed, religion or gender commits

disorderly conduct and shall be guilty of a mis-

demeanor.

St. Paul, Minn., Legis. Code § 292.02 (1990). The trial

court held that the statute was unconstitutional, but the

Minnesota Supreme Court reversed, construing the St.

Paul ordinance as limited to conduct that amounts to

“fighting words,” namely, “conduct that itself inflicts

injury or tends to incite immediate violence. ...” In re

Welfare of R.A.V., 464 N.W.2d 507, 510 (Minn.1991).

Accepting the limited construction placed upon the stat-

ute by the Minnesota Supreme Court, the United States

Supreme Court held that, even if the expression reached

by the ordinance was proscribable under the “fighting

words” doctrine, the ordinance was “facially unconstitu-

tional in that it prohibit[ed] otherwise permitted speech

solely on the basis of the subjects the speech addresses.”

R.A.V., 505 U.S. at 381.

Noting that “(t]he First Amendment generally pre-

vents government from proscribing speech, or even

expressive conduct, because of disapproval of the ideas

expressed,” the Court observed that “[c]ontent-based reg-

ulations are presumptively invalid.” Id. at 382 (citations

omitted). Exceptions to the rule include: obscenity (e.g.,

Roth v. United States, 354 U.S. 476 (1957)), defamation

(e.g., Beauharnais v. Illinois, 343 U.S. 250 (1952)), and

“fighting words” (e.g., Chaplinsky v. New Hampshire, 315

U.S. 568 (1942)). But simply because particular categories

of speech may be regulated does not mean that such

regulation may selectively discriminate on the basis of

content. As the Court in R.A.V. stated:

App. 9

And just as the power to proscribe particular

speech on the basis of a noncontent element

(e.g., noise) does not entail the power to pro-

scribe the same speech on the basis of a content

element; so also, the power to proscribe it on the

basis of one content element (e.g., obscenity)

does not entail the power to proscribe it on the

basis of other content elements.

R.A.V., 505 U.S. at 386.

The Commonwealth argues that the Virginia statute

is neutral because “Code § 18.2-423 applies equally to

anyone who burns a cross for the purpose of intimidating

anyone.” The Commonwealth further dwells upon the

phrase in R.A.V. which states that “threats of violence are

outside the First Amendment.” 505 U.S. at 388. This quo-

tation is incomplete and distorts the holding of R.A.V.

While a statute of neutral application proscribing intim-

idation or threats may be permissible, a statute punishing

intimidation or threats based only upon racial, religious,

or some other selective content-focused category of other-

wise protected sneech violates the First Amendment. Id.

Emphasizing the point, the Court in R.A.V., noted:

Thus, the government may proscribe libel; but it

may not make the further content discrimina-

tion of proscribing only libel critical of the gov-

ernment.

R.A.V., 505 U.S. at 384.

We have long held, for example, that nonverbal

expressive activity can be banned because of the

action it entails, but not because of the ideas it

expresses — so that burning a flag in violation of

an ordinance against outdoor fires could be

App. 10

punishable, whereas burning a flag in violation

of an ordinance against dishonoring the flag is

not.

Id. at 386.

A State might choose to prohibit only that

obscenity which is the most patently offensive in

its prurience — i.e., that which involves the most

lascivious displays of sexual activity. But it may

not prohibit, for example, only that obscenity

which includes offensive political messages.

Id. at 388.

And the Federal Government can criminalize

only those threats of violence that are directed

against the President, see 18 U.S.C. § 871 — since

the reasons why threats of violence are outside

the First Amendment (protecting individuals

from the fear of violence, from the disruption

that fear engenders, and from the possibility

that the threatened violence will occur) have

special force when applied to the person of the

President. . . . But the Federal Government may

not criminalize only those threats against the

President that mention his policy on aid to inner

cities.

Id.

R.A.V. makes it abundantly clear that, while certain

areas of speech and expressive conduct may be subject to

proscription, regulation within these areas must not

App. 11

discriminate based upon the content of the message.> In

this case, the Commonwealth seeks to proscribe expres-

sive conduct that is intimidating in nature, but selectively

chooses only cross burning because of its distinctive mes-

sage. As the Court in R.A.V. succinctly stated: “the gov-

ernment may not regulate use based upon hostility - or

favoritism — towards the underlying message expressed.”

Id. at 386.

While not specifically stating that “race, color, creed,

religion or gender” is the subject of proscription, the

absence of such language in the Virginia statute does not

> It is important to note that R.A.V. did not inte:pret the

First Amendment to forbid “underinclusiveness.” To the

contrary, the Court held that:

In our view, the First Amendment imposes not an

“underinclusiveness” limitation but a “content

discrimination” limitation upon a State’s prohibition

of proscribable speech. There is no problem whatever,

for example, with a State’s prohibiting obscenity (and

other forms of proscribable expression) only in

certain media or markets, for although that

prohibition would be “underinclusive,” it would not

discriminate on the basis of content.

Id. at 387. Of course, the subjects of the proscription

expressly stated in the St. Paul ordinance were symbols and

words, including a burning cross or a Nazi swastika, evoking

“anger, alarm or resentment in others on the basis of race, color,

creed, religion or gender.” As the Court noted, excluded from

proscription was identical behavior with a different subject,

such as “political affiliation, union membership, or

homosexuality.” Id. at 391. The infirmity addressed in R.A.V., as

in the cases before this Court, was not “underinclusiveness;”

rather, it was the selective discrimination in the ordinance based

upon content.

App. 12

mask the motivating purpose behind the statutory prohi-

bition of cross burning. The United States Supreme Court

dealt with a similar question in the “flag burning” cases.

In Texas v. Johnson, Johnson was prosecuted under a stat-

ute making it unlawful to intentionally or knowingly

desecrate the United States flag. “Desecrate” was defined

as “deface, damage, or otherwise physically mistreat in a

way that the actor knows will seriously offend one or

more persons likely to observe or discover his action.”

491 U.S. at 400 (quoting Texas Penal Code Ann. § 42.09

(1989)). After the Supreme Court declared the Texas stat-

ute unconstitutional, Congress enacted the Flag Protec-

tion Act of 1989. In subsequent litigation concerning the

Act, the government maintained that the absence of lan-

guage in the Act focusing upon the content of the actor’s

symbolic speech cured any constitutional problems. The

Supreme Court disagreed in United States v. Eichman, 496

U.S. 310, 315 (1990) (internal quotations omitted), stating

that, “[a]lthough the [statute] contains no explicit con-

tent-based limitation on the scope of prohibited conduct,

it is nevertheless clear that the Government's asserted

interest is related to the suppression of free expression.”

Similarly, considering the historical and current con-

text of cross burning, and the statute’s reliance on such

‘context for the provision of an inference of intent to

intimidate from the mere act of burning a cross, it is clear

that the Commonwealth’s interest in enacting the cross

burning statute is related to the suppression of free

expression as well.

The virulent symbolism of cross burning has been

discussed in so many judicial opinions that its subject and

App. 13

content as symbolic speech has been universally acknowl-

edged. For example, the Supreme Court of South Carolina

declared a statute® with operative language similar to

ours unconstitutional and observed: “a burning cross his-

torically conveys ideas capable of eliciting powerful

responses from those engaging in the conduct and those

receiving the message.” State v. Ramsey, 430 S.E.2d 511,

514 (S.C. 1993). The Court of Appeals of Maryland also

declared a statute” with operative language similar to

ours unconstitutional and observed:

Those who openly burn crosses do so fully cog-

nizant of the controversial racial and religious

messages which such acts impart. Historically,

the Ku Klux Klan burned crosses to express

6 S. C. Cope Ann. § 16-7-120 (1985) provided:

It shall be unlawful for any person to place or cause to be

placed in a public place in the State a burning or flaming cross

or any manner of exhibit in which a burning or flaming cross,

real or simulated, is the whole or a part or to place or cause to be

placed on the property of another in the State a burning or

flaming cross or any manner of exhibit in which a burning or

flaming cross, real or simulated, is the whole or a part, without

first obtaining written permission of the owner or occupier of

the premises so to do.

1952 Va. Acts ch. 483 § 2 at 777.

7 Mp. ANN. Cope art.27, § 10A (1957, 1992 Repl. Vol.)

provided in pertinent part:

It shall be unlawful for any person or persons to burn or

cause to be burned any cross or other religious symbol upon any

private or public property within this State without the express

consent of the owner of such property and without first giving

notice to the fire department which services the area in which

such burning is to take place.

App. 14

hostility towards blacks and other groups it dis-

favored, and it is that idea which contemporary

cross burners aim to perpetuate.

State v. Sheldon, 629 A.2d 753, 757 (Md. 1993).

The historical context for the passage of the Virginia

cross burning statute is uncontrovertible. In an atmo-

sphere of racial, ethnic, and religious intolerance, the

General Assembly acted to combat a particular form of

intimidating symbolic speech - the burning of a cross. It

did not proscribe the burning of a circle or a square

because no animating message is contained in such an

act.

Initially, the cross burning proscription extended

only to acts on property of another without permission.

In 1968, the limitation concerning situs was removed, and

in 1975, the addition of language establishing prima facie

evidence of intent to intimidate from the mere act of

burning a cross reaffirmed the legislative context of the

statute. During oral argument, the Commonwealth main-

tained that the portion of the statute proscribing the

burning of a cross had nothing to do with the motivation

of the actor. When asked how the Commonwealth could

justify the inference of intimidation provided in the last

sentence of the statute, the Commonwealth relied upon

the historical context of cross burning. The Common-

wealth cannot have it both ways.

“SECONDARY EFFECTS”

As described above, the R.A.V. analysis begins with

categories of speech that may be subject to regulation and

App. 15

holds that such regulation may not selectively discrimi-

nate on the basis of content. However, the Court in R.A.V.

recognized that some selective regulation of constitu-

tionally protected speech may be permissible if it is based

upon the “secondary effects” of speech rather than its

content. See Renton v. Playtime Theatres, Inc., 475 U.S. 41

(1986). In Renton, the ordinance under review proscribed

the location of an adult motion picture theater within

1,000 feet of ary residential zone, single - or multiple -

family dwelling, church, park, or school. Because the

ordinance did not ban adult theaters entirely, the Court

held that the ordinance is “properly analyzed as a form of

time, place, and manner regulation.” Id. at 46.

The analysis used by the Court focused upon

whether the regulation was directed at the content of the

protected speech or at a legitimate area of government

concern. Determining that the dominant motive of the

ordinance was “to prevent crime, protect the city’s retail

trade, maintain property values, and generally ‘protec(t]

and preserv[e] the quality of [the city’s] neighborhoods,

commercial districts, and the quality of urban life,’” the

Court upheld the ordinance. Id. at 48. The Court held that

the regulation in Renton was “aimed not at the content of

the films shown at ‘adult motion picture theatres,’ but

rather at the secondary effects of such theaters on the

surrounding community.” Id. at 47. By contrast, the legis-

lative history of the Virginia cross burning statute, the

meaning afforded the expressive conduct, and the provi-

sion of prima facia evidence of intent to intimidate from

the mere act of burning a cross, make it abundantly clear

that Code § 18.2-423 is aimed at regulating content, not

“secondary effects.”

App. 16

OVERBREADTH ANALYSIS

As discussed herein, the majority opinion in R.A.V.

holds that certain categories of speech may be regulated,

but the government may not discriminate in its proscrip-

tion within these categories on the basis of content. The

concurring opinions in R.A.V. preferred a more tradi-

tional analysis confined to the question whether the ordi-

nance suffered from overbreadth. As Justice White noted,

St. Paul’s ordinance was unconstitutionally overbroad

because:

Although the ordinance as construed reaches

categories of speech that are constitutionally

unprotected, it also criminalizes a substantial

amount of expression that - however repugnant

- is shielded by the First Amendment.

Id. at 413 (J. White, concurring). The Commonwealth’s

cross burning statute is similarly defective.

It is not simply the prospect of conviction under the

statute that renders it overbroad. The enhanced proba-

bility of prosecution under the statute chills the expres-

sion of protected speech sufficiently to render the statute

overbroad. Virginia v. American Booksellers Ass'n, 484 U.S.

383, 392-93 (1988). Threat of prosecution under a criminal

statute “tends to chill the exercise of First Amendment

rights.” North Carolina Right to Life, Inc. v. Bartlett, 168

F.3d 705, 710 (4th Cir. 1999). Self-censorship, “a harm that

can be realized even without an active prosecution,”

inhibits free speech. Vermont Right to Life Committee, Inc.

v. Sorrell, 221 F.3d 376, 382 (2nd Cir. 2000).

Code § 18.2-423 provides in part that “any such burn-

ing of a cross shall be prima facie evidence of an intent to

App. 17

intimidate a person or group of persons.” Assuming that

the act is done “on the property of another, a highway or

other public place,”® the act of burning a cross alone, with

no evidence of intent to intimidate, will nonetheless suf-

fice for arrest and prosecution and will insulate the Com-

monwealth from a motion to strike the evidence at the

end of its case-in-chief. That the trier of fact ultimately

finds the actor not guilty of the offense is little consola-

tion after arrest and prosecution for speech or expressive

conduct that is otherwise protected. Arrest for, and pros-

ecution of, otherwise protected speech, with no evidence

of a critical element of the offense other than a statutorily

supplied inference, chills free expression. Code § 18.2-423

sweeps within its ambit for arrest and prosecution, both

protected and unprotected speech. As such it is over-

broad.

BRANDENBURG ISSUES

R.A.V., the Court acknowledged that the narrow con-

struction placed upon the ordinance limited its applica-

tion to “fighting words,” a proper category of

proscription. Nonetheless, the ordinance was declared

unconstitutional because of its selective application to

only certain expressions of fighting words. Virginia’s

cross burning statute suffers from the same infirmity.

8 The Virginia statute prohibits cross-burning “on the

property of another, a highway or other public place.”

Remarkably, it sweeps within its prohibition the act “on the

property of another” with or without permission.

App. 18

Because we hold that the statute impermissibly pro-

scribes otherwise protected speech on the basis of con-

tent, and because the statute is overbroad, it is

unnecessary to address the remaining challenges under

Brandenburg.?

CONCLUSION

Under our system of government, people have the

right to use symbols to communicate. They may patri-

otically wave the flag or burn it in protest; they may

reverently worship the cross or burn it as an expression

of bigotry. Neutrally expressed statutes prohibiting van-

dalism, assault, and trespass may have vitality for the

prosecution of particularly offensive conduct. While rea-

sonable prohibitions upon time, place, and manner of

speech, and statutes of neutral application may be

enforced, government may not regulate speech based on

hostility - or favoritism - towards the underlying mes-

sage expressed.

A statute selectively addressed to the content of sym-

bolic speech is not permitted under the First Amendment.

Additionally, a statute that sweeps within its ambit both

protected and unprotected speech is overbroad. Accord-

ingly, we hold that Code § 18.2-423 violates the First

9 Additionally, because we resolve these questions under

the First Amendment to the United States Constitution, it is

unnecessary to address Elliott's and O’Mara’s additional

argument that Article I, § 12 of the Virginia Constitution is also

violated.

App. 19

Amendment of the United States Constitution. The con-

victions in each of these appeals will be vacated and the

indictments will be dismissed.

Reversed and dismissed.

JUSTICE KINSER, concurring.

JUSTICE HASSELL, with whom CHIEF JUSTICE CAR-

RICO and JUSTICE KOONTZ join, dissenting.

JUSTICE KINSER, concurring.

In the words of the dissent, I, too, “stand second to

none in my devotion to the First Amendment’s mandate

that most forms of speech are protected, irrespective of

how repugnant and offensive the message uttered or

conveyed may be to others.” However, in contrast to the

dissent, I cannot be dissuaded from that devotion, and

believe that the “fair application of our jurisprudence”

must include a fair and proper application of the First

Amendment. Therefore, I fully agree with the majority

opinion. I write separately to address certain inferences

and conclusions drawn by the dissent.

Relying on the definition of the term “intimidation”

set forth in Sutton v. Commonwealth, 228 Va. 654, 663, 324

S.E.2d 665, 670 (1985) (“intimidation . . . means putting a

victim in fear of bodily harm”), the dissent concludes that

Code § 18.2-423 proscribes only conduct that constitutes

“true threats.” Expanding on that definition, the dissent

then states that the purpose of Code § 18.2-423 is “to

proscribe physical acts intended to inflict bodily harm

App. 20

upon the victims of such acts.” The dissent’s attempt to

equate an intent to intimidate with a “true threat” or a

physical act intended to inflict bodily harm has no legal

basis and misconstrues the decision in Sutton.

The issue in that case was whether there was suffi-

cient evidence to prove that the defendant engaged in

sexual intercourse with the victim against her will by

intimidation. 228 Va. at 662, 324 S.E.2d at 669. Noting that

the General Assembly had expanded the scope of the

statute proscribing rape to include “a prohibition against

sexual intercourse with a woman against her will by

threat or intimidation,” as well as by force, the Court

explained that “[t]here is a difference between threat and

intimidation[,]” and that “[i]ntimidation may occur with-

out threats.” Id. at 663, 324 S.E.2d at 669-70. Thus, our

established jurisprudence does not support the proposi-

tion that Code § 18.2-423 proscribes only conduct that

constitutes “true threats.” An act performed with the

intent to intimidate, i.e., to place an individual in fear of

bodily harm, does not rise to the same level as a threat

(defined in Sutton as “expression of an intention to do

bodily harm,” 228 Va. at 663, 324 S.E.2d at 670), or a

physical act intended to inflict bodily harm.

For the same reason, Code § 18.2-423 does not satisfy

the principle enunciated in Brandenburg v. Ohio, 395 U.S.

444, 447 (1969), that “the constitutional guarantees of free

speech and free press do not permit a State to forbid or

proscribe advocacy of the use of force or of law violation

except where such advocacy is directed to inciting or

producing imminent lawless action and is likely to incite

or produce such action.” Although reprehensible and

offensive, the act of burning a cross with the intent to

App. 21

intimidate is not necessarily speech aimed at “producing

imminent lawless action.” Id. That proposition is borne

out by the fact that the cross burning for which Barry

Elton Black was convicted occurred on private property

with the permission of the owner.

Even if the dissent were correct that Code § 18.2-473

proscribes only conduct that constitutes “true threats,”

the General Assembly cannot engage in content discrimi-

nation by selectively prohibiting only those “true threats”

that convey a particular message. R.A.V. v. City of St. Paul,

505 U.S. 377, 388 (1992). Unfortunately, that is what the

General Assembly has done in Code § 18.2-423 by confin-

ing the proscription in that statute to the act of burning a

cross. The constitutional infirmity is not, as suggested by

the dissent, cured by the fact that the statute does not

prohibit all acts of burning a cross. The statute’s content-

based discrimination still exists.

Finally, the dissent’s statement that the majority has

concluded that the Constitution of the United States pre-

vents the General Assembly from enacting a statute that

prohibits persons from burning a cross “in a manner that

intentionally places citizens in fear of bodily harm” mis-

interprets the holding in the majority opinion. I believe

that a more accurate characterization of the majority’s

conclusion is that the General Assembly may, in a statute

of neutral application, proscribe expressive conduct per-

formed with the intent to intimidate another individual,

but that the General Assembly may not selectively pro-

hibit only certain acts of intimidation based upon the

content of the underlying message.

For these reasons, I respectfully concur.

App. 22

JUSTICE HASSELL, with whom CHIEF JUSTICE CAR-

RICO and JUSTICE KOONTZ join, dissenting.

I dissent. The majority opinion invalidates a statute

that for almost 50 years has protected our citizens from

being placed in fear of bodily harm by the burning of a

cross. The majority concludes that the Constitution of the

United States prohibits the General Assembly from enact-

ing this statute. I find no such prohibition in either the

Constitution of Virginia or the Constitution of the United

States. Without question, the framers of the First Amend-

ment never contemplated that a court would construe

that Amendment so that it would permit a person to burn

a cross in a manner that intentionally places citizens in

fear of bodily harm.

I am concerned about the fair application of our

jurisprudence to every citizen and the proper interpreta-

tion of our Federal and State Constitutions. These same

concerns for fairness and the safety of our citizens were

the very basis for the General Assembly’s decision to

enact Code § 18.2-423 almost 50 years ago.

I stand second to none in my devotion to the First

Amendment's mandate that most forms of speech are

protected, irrespective of how repugnant and offensive

the message uttered or conveyed may be to others. How-

ever, contrary to the view adopted by the majority in

these appeals, the First Amendment does not permit a

person to burn a cross in a manner that intentionally

places another person in fear of bodily harm.

App. 23

Barry Elton Black was indicted by a Carroll County

grand jury for the burning of a cross with the intent to

intimidate in violation of Code § 18.2-423. At the conclu-

sion of a trial, the jury found him guilty as charged in the

indictment and fixed his punishment at $2,500. Black

appealed the circuit court’s judgment confirming the

jury’s verdict to the Court of Appeals, which affirmed his

conviction. Black v. Commonwealth, Record No. 1581-99-3

(December 19, 2000).

The following evidence was presented during Black’s

trial. On August 22, 1998, H. Warren Manning, the Sheriff

of Carroll County, received a report that members of the

Ku Klux Klan intended to conduct a rally in Carroll

County that evening. Later, Sheriff Manning drove his

police car to the site of the rally, where three men dressed

in white robes and hats approached him. Sergeant Rich-

ard C. Clark, Jr., met Sheriff Manning at the site of the

rally.

Approximately 45 minutes later, after the rally start-

ed, Sheriff Manning observed the Klan members burn a

cross that was approximately 25 to 30 feet tall. Sheriff

Manning approached Black and inquired, “who [is]

responsible for burning the cross?” Black responded that

he was responsible for burning the cross, and he was

placed under arrest.

The rally was conducted on property owned by

Annabell Sechrist. She was present during the rally, and

she had given the Ku Klux Klan permission to burn the

cross on her property.

App. 24

Rebecca Sechrist, a Caucasian female, lived on prop-

erty adjacent to the property where the rally occurred.

Sechrist observed the rally from her home. In response to

the question, “[w]hat statements did you hear?”, she

testified: “They . . . talked a lot about blacks — and I don’t

call [ ] the word they called it . . . it started with an N and

I don’t, I don’t use that word, I’m sorry — but they talked

real bad about the blacks and the Mexicans and they

talked about how, one. . . guy got up and said that he

would love to take a . 30/.30 and just random shoot the

blacks and talked about how they would like to send the

blacks and the Mexicans back from where they come from

and talked about President Clinton and Hillary Clinton

and about the government funding money for the, for the

people that can’t afford housing and stuff and . . . how

their tax paying goes to keep the black people up and

stuff like that.”

Sechrist testified that she was “scared” as a result of

the rally. She stated: “I was scared our home would get

burned or something would happen to it. We’ve got

two .. . kids and I was afraid that something would

happen to them.” In response to a question by defen-

dant’s counsel, Sechrist testified: “I think they were try-

ing to scare me.”

Jonathan Stephen O’Mara was indicted by a grand

jury in the City of Virginia Beach for attempting to burn a

cross with the intent of intimidating a person or group of

persons in violation of Code § 18.2-423 and conspiracy to

burn a cross in violation of Code § 18.2-423. O’Mara

App. 25

entered a guilty plea that reserved his right to file an

appeal challenging the constitutionality of Code

§ 18.2-423.

The court fixed O’Mara’s punishment at incarceration

in the jail for a term of 90 days and imposed a fine of

$2,500 on each of the charges. O’Mara appealed the judg-

ment to the Court of Appeals, which affirmed his convic-

tions. O'Mara v. Commonwealth, 33 Va. App. 525, 535

S.E.2d 175 (2000).

O’Mara entered into a stipulation of facts with the

Commonwealth, which was made a part of the record in

the circuit court. The stipulation states: “On May 2, 1998,

David Targee had approximately fifteen individuals,

including Jonathan O’Mara and Richard Elliott, at his

residence in Virginia Beach. They were all consuming

alcohol. Elliott complained to Targee and O’Mara about

his neighbor and about how he wanted to ‘get back’ at

him. It was suggested (not by O’Mara) that they burn a

cross in Elliott’s neighbor’s yard. O’Mara and Targee

agreed, and they all went to Targee’s garage where a

cross was built. They all got in Targee’s truck and drove

to Munden Point Road in Virginia Beach. Targee was

driving, with O’Mara in the front passenger seat and

Elliott in the back seat. Once there, Elliott handed the

cross to O’Mara, who also grabbed a can of lighter fluid

and went outside and placed the cross in the yard of

Elliott’s neighbor. He then poured lighter fluid on the

cross, set it on fire, and ran back to the car. Targee drove

them back to his house. The next morning, Elliott's neigh-

bor, James Jubilee, came out of his house and observed

the partially burned cross in his yard. He broke the cross

and placed [it] in the garage. He later called the police.”

App. 26

Cc.

A grand jury in the City of Virginia Beach indicted

Richard J. Elliott for attempting to burn a cross on the

property of James S. Jubilee with the intent of intimidat-

ing any person or group of persons in violation of Code

§ 18.2-423 and conspiracy to burn a cross in violation of

Code § 18.2-423. At the conclusion of a trial, the jury

found Elliott guilty of attempted cross burning with the

intent to intimidate and fixed his punishment at 90 days

incarceration in jail and a fine of $2,500. Elliott appealed

the circuit court’s judgment to the Court of Appeals,

which affirmed his conviction. See O'Mara, 33 Va. App.

525, 535 S.E.2d 175.

The following evidence was adduced at the trial.

James Jubilee resided at 2044 Munden Point Road in

Virginia Beach. One day, Mr. Jubilee told his next door

neighbor, Mrs. Elliott, that he was concerned because

persons were discharging firearms in her backyard. Mrs.

Elliott responded that her husband maintained a firing

range in the rear of her yard.

On May 2, 1998, David Targee had a party at his

home where he entertained Jonathan O’Mara, Richard

Elliott, and others. Richard Elliott, who had consumed

alcoholic beverages, mentioned that “his neighbors were

complaining about him shooting in his backyard... . He

wanted to get back at them for doing it.”

Later that evening, Targee, Elliott, and O’Mara went

to Targee’s parents’ garage and constructed a wooden

cross. After they had constructed the cross, they traveled

by car to Mr. Jubilee’s home where O’Mara placed the

cross in the yard and ignited it. The next morning

App. 27

between 8:15 and 8:30, Mr. Jubilee saw the cross, which

contained “burn spots.” He picked it up and broke it.

Jennifer Luning, O’Mara’s former “girlfriend,” testi-

fied that O’Mara admitted that he, Targee, and Richard

Elliott had burned the cross. “He had said that before

they actually went out and did it that there was a conver-

sation taking place about Richard had been complaining

or the neighbors had been complaining about shooting

[guns] in the backyard.”

Edwin Coyner, a fire investigator for the City of

Virginia Beach, testified that he interviewed Targee sev- .

eral times. Targee informed Coyner that “Richard Elliott

had complained about his neighbors because the neigh-

bors had complained about him shooting in the back-

yard.”

Il.

The First Amendment of the Constitution of the

United States provides in part: “Congress shall make no

law .. . abridging the freedom of speech.” Article I, § 12

of the Constitution of Virginia states:

“That the freedoms of speech and of the press

are among the great bulwarks of liberty, and can

never be restrained except by despotic govern-

ments; that any citizen may freely speak, write,

and publish his sentiments on all subjects, being

responsible for the abuse of that right; that the

General Assembly shall not pass any law

abridging the freedom of speech or of the press,

App. 28

nor the right of the people peaceably to assem-

ble, and to petition the government for the

redress of grievances.”

The Fourteenth Amendment prohibits state action in

violation of the First Amendment. The freedom of speech

guaranteed by Article I, § 12 of the Constitution of Vir-

ginia is co-extensive with the protections guaranteed by

the First Amendment of the Constitution of the United

States.

Code § 18.2-423 states:

“It shall be unlawful for any person or per-

sons, 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 person who

shall violate any provision of this section shall

be guilty of a Class 6 felony.

“Any such burning of a cross shall be prima

facie evidence of an intent to intimidate a per-

son or group of persons.”

We have held, since the birth of this Commonwealth,

that “the judiciary may and ought to adjudge a law

unconstitutional and void, if it be plainly repugnant to

the letter of the Constitution, or the fundamental princi-

ples thereof.” Kamper v. Hawkins, 3 Va. (1 Va. Cas.) 20, 40

(1793). However, clearly engrained within our jurispru-

dence is the principle that this Court

“can declare an act of the general assembly void

only when such act clearly and plainly violates the

App. 29

[C]jonstitution, and in such manner as to leave

no doubt or hesitation on our minds.

“This rule has been repeatedly declared by

this court.

The presumption always is that the legisla-

ture has judged correctly of its constitutional

powers, and the contrary must be clearly dem-

onstrated before a co-ordinate branch of the

government can be called upon to interfere

between the people and their immediate repre-

sentatives.”

Commonwealth v. Moore, 66 Va. (25 Gratt.) 951, 953 (1875).

Indeed, we have repeatedly held that “[e]very act of the

legislature is presumed to be constitutional, and the

courts are powerless to declare an act invalid, except

where it appears beyond doubt that it contravenes some

provision of the State or Federal Constitution. If we

doubt we must sustain its constitutionality.” Tobacco

Growers’ Co-Operative Assoc. v. Danville Warehouse Co., 144

Va. 456, 469, 132 S.E. 482, 486 (1926). We restated this

fundamental principle in Harrison v. Day, 200 Va. 764, 770,

107 S.E.2d 594, 598 (1959):

“When the constitutionality of an act is chal-

lenged, a heavy burden of proof is thrust upon

the party making the challenge. All laws are

presumed to be constitutional and this pre-

sumption is one of the strongest known to the

law. As we said in Almond v. Day, 199 Va. 1, 6, 97

S.E.2d 824[, 828 (1957) }: ‘... It is only where an

act is plainly repugn..i. to some constitutional

provision that the courts can declare it null and

void. If there be a reasonable doubt whether the

App. 30

act violates the fundamental law, that doubt

must be resolved in favor of the act.’ ”

Accord Jefferson Green Unit Owners Assoc., Inc. v. Gwinn,

262 Va. 449, 459, 551 S.E.2d 339, 344 (2001); Motley v.

Virginia State Bar, 260 Va. 243, 247, 536 S.E.2d 97, 99

(2000); Finn v. Virginia Retirement System, 259 Va. 144, 153,

524 S.E.2d 125, 130 (2000); Pulliam v. Coastal Emergency

Services, 257 Va. 1, 9, 509 S.E.2d 307, 311 (1999); Mum-

power v. Housing Authority, 176 Va. 426, 443, 11 S.E.2d 732,

738 (1940); Antoni v. Wright, 63 Va. (22 Gratt.) 833, 882

(1872); Auditor of Public Accounts v. Graham, 5 Va. (1 Call)

475, 476 (1798). For some inexplicable reason, the major-

ity ignores this fundamental principle.

Black, O’Mara, and Elliott (the defendants), relying

principally upon R.A.V. v. City of St. Paul, 505 U.S. 377

(1992), argue that Code § 18.2-423 violates their right to

freedom of speech guaranteed by the First Amendment to

the Constitution of the United States and Article I, § 12 of

the Constitution of Virginia and that the Court of Appeals

erred by holding that the statute comported with these

constitutional provisions. I disagree with the defendants.

Initially, I observe that Code § 18.2-423, by its express

terms, does not proscribe every act of burning a cross.

Rather, Code § 18.2-423 only proscribes the act of burning

a cross when such act is performed “with the intent of

intimidating any person or group of persons” and the act

is committed “on the property of another, a highway or

App. 31

other public place.” In the context of our criminal stat-

utes, specifically Code § 18.2-61, we have defined intim-

idation as acts which put the victim “in fear of bodily

harm. Such fear must arise from the willful conduct of the

accused, rather than from some mere temperamental tim-

idity of the victim; however, the fear of the victim need

not be so great as to result in terror, panic, or hysteria.”

Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665,

669 (1985).

Thus, applying the clear and unambiguous language

in Code § 18.2-423 in conjunction with our established

definition of intimidation, which the majority ignores, I

conclude that Code § 18.2-423 only proscribes conduct

which constitutes “true threats.” And, I note that the

United States Supreme Court, in Watts v. United States,

394 U.S. 705, 707 (1969), approved the facial constitu-

tionality of a federal criminal statute that prohibited

someone from threatening the life of the President of the

United States. It is well established that true threats of

violence can be proscribed by statute without infringing

upon the First Amendment. Madsen v. Women’s Health

Center, Inc., 512 U.S. 753, 774 (1994); Nat’l Organization for

Women, Inc. v. Scheidler, __ F.3d __, ___ (7th Cir. 2001);

Bauer v. Sampson, 261 F.3d 775, 782 (9th Cir. 2001); United

States v. Rahman, 189 F.3d 88, 115 (2nd Cir.), cert. denied,

sub nom. Nosair v. United States, 528 U.S. 982 (1999);

United States v. Francis, 164 F.3d 120, 122-23 (2nd Cir.

1999); United States v. J].H.H., 22 F.3d 821, 825 (8th Cir.

1994). However, I must continue this inquiry regarding

the constitutionality of Code § 18.2-423 because in R.A.V.,

supra, the Supreme Court held that the First Amendment

App. 32

imposes certain limitations upon the regulation of speech

and expressive conduct, including true threats.

In R.A.V., the Supreme Court considered whether an

ordinance was facially invalid under the First Amend-

ment. In R.A.V., the defendant, along with several other

teenagers, made a wooden cross and burned it in a yard

owned by a black family. The defendant was convicted of

violating the following ordinance:

“Whoever places on public or private prop-

erty a symbol, object, appellation, characteriza-

tion or graffiti, including, but not limited to, a

burning cross or Nazi swastika, which one

knows or has reasonable grounds to know

arouses anger, alarm or cesentment in others on

the basis of race, color, creed, religion or gender

commits disorderly conduct and shall be guilty

of a misdemeanor.”

The Supreme Court held that the ordinance was facially

unconstitutional because it prohibited otherwise permit-

ted speech solely on the basis of the content of the

speech, even though the Minnesota Supreme Court had

concluded that the ordinance only prohibited

unprotected “fighting words.” R.A.V., 505 U.S. at 379-81.

The Supreme Court observed, however, that certain

“areas of speech can, consistently with the First Amend-

ment, be regulated because of their constitutionally proscrib-

able content (obscenity, defamation, etc.) — not that they

are categories of speech entirely invisible to the Constitu-

tion, so that they may be made the vehicles for content

discrimination unrelated to their distinctively proscrib-

able content. Thus, the government may proscribe libel;

but it may not make the further content discrimination of

App. 33

proscribing only libel critical of the government.” Id. at

383-84.

The Supreme Court explained:

“When the basis for the content discrimina-

tion consists entirely of the very reason the

entire class of speech at issue is proscribable, no

significant danger of idea or viewpoint discrimi-

nation exists. Such a reason, having been

adjudged neutral enough to support exclusion

of the entire class of speech from First Amend-

ment protection, is also neutral enough to form

the basis of distinction within the class. To illus-

trate: a State might choose to prohibit only that

obscenity which is the most patently offensive in

its prurience — i.e., that which involves the most

lascivious displays of sexual activity. But it may

not prohibit, for example, only that obscenity

which includes offensive political messages. See

Kucharek v. Hanaway, 902 F.2d 513, 517 (7th Cir.

1990), cert. denied, 498 U.S. 1041 (1991). And the

Federal Government can criminalize only those

threats of violence that are directed against the

President, see 18 U.S.C. § 871 - since the reasons

why threats of violence are outside the First

Amendment (protecting individuals from the

fear of violence, from the disruption that fear

engenders, and from the possibility that the

threatened violence will occur) have special

force when applied to the person of the Presi-

dent. See Watts v. United States, 394 U.S. 705, 707

(1969)... . But the Federal Government may not

criminalize only those threats against the Presi-

dent that mention his policy on aid to inner

cities. And to take a final example . . . a State

may choose to regulate price advertising in one

industry, but not in others, because the risk of

App. 34

fraud ... is in its view greater there... . Buta

State may not prohibit only that commercial

advertising that depicts men in a demeaning

fashion.”

App. 35

such bases as well. Indeed, to validate such

selectivity (where totally proscribable speech is

at issue), it may not even be necessary to iden-

tify any particular ‘neutral’ basis, so long as the

nature of the content discrimination is such that

there is no realistic possibility that official sup-

pression of ideas is afoot. . . . Save for that

limitation, the regulation of ‘fighting words,’

like the regulation of noisy speech, may address

crimination. some offensive instances and leave other,

“Another valid basis for according differen- equally offensive, instances alone.”

tial treatment to even a content-defined subclass R.A.V., 505 U.S. at 389-90.

of proscribable speech is that the subclass hap-

pens to be associated with particular ‘secondary

effects’ of the speech, so that the regulation is

R.A.V., 505 U.S. at 388-89.

The Supreme Court also articulated a second basis

which would permit some degree of content-based dis-

In invalidating the City of St. Paul’s ordinance, the

Supreme Court stated that

‘justified without reference to the content of

the... speech.’ Renton v. Playtime Theatres, Inc.,

475 US. 41, 48 (1986). .. . A State could, for

example, permit all obscene live performances

except those involving minors. Moreover, since

words can in some circumstances violate laws

directed not against speech, but against con-

duct ... a particular content-based subcategory

of a proscribable class of speech can be swept

up incidentally within the reach of a statute

directed at conduct, rather than speech... .

Where the government does not target conduct

on the basis of its expressive content, acts are

not shielded from regulation merely because

they express a discriminatory idea or philoso-

phy.

“These bases for distinction refute the prop-

osition that the selectivity of the restriction is

‘even arguably “conditioned upon the sover-

eign’s agreement with what a speaker may

intend to say.” ’ Metromedia, Inc. v. San Diego,

453 U.S. 490, 555 (1981). .. . There may be other

“[a]lthough the phrase in the ordinance ‘arouses

anger, alarm or resentment in others,’ has been

limited by the Minnesota Supreme Court's con-

struction to reach only those symbols or dis-

plays that amount to ‘fighting words,’ the

remaining, unmodified terms make clear that

the ordinance applies only to ‘fighting words’

that insult, or provoke violence, ‘on the basis of

race, color, creed, religion or gender.’ Displays

containing abusive invective, no matter how

vicious or severe, are permissible unless they

are addressed to one of the specified disfavored

topics. Those who wish to use ‘fighting words’

in connection with other ideas - to express hos-

tility, for example, on the basis of political affil-

iation, union membership, or homosexuality -

are not covered. The First Amendment does not

permit St. Paul to impose special prohibitions on

those speakers who express views on disfavored

subjects.”

Id. at 391.

App. 36

Continuing, the Supreme Court explained:

“What we have here, it must be empha-

sized, is not a prohibition of fighting words that

are directed at certain persons or groups (which

would be facially valid if it met the requirements

of the Equal Protection Clause); but rather, a

prohibition of fighting words that contain

. . » messages of ‘bias-motivated’ hatred and, in

particular, as applied to this case, messages

‘based on virulent notions of racial supremacy.’ ”

Id. at 392 (citation omitted).

Contrary to the majority’s opinion, Code § 18.2-423

does not suffer from the defects contained in the ordi-

nance at issue in R.A.V. As previously stated, Code

§ 18.2-423 does not prohibit every act of burning of a

cross. Rather, the statute only prohibits the burning of a

cross when such act is performed with the intent to

intimidate. And, consistent with our jurisprudence, the

word “intimidate” means to place one in fear of bodily

harm. Unlike the City of St. Paul’s ordinance, which

targeted cross burning on the basis of race, color, creed,

religion or gender, Code § 18.2-423 does not contain those

limitations. The conduct proscribed in the Virginia statute

applies to any individual who burns a cross for any

reason provided the cross is burned with the intent to

intimidate. That point is best illustrated in O’Mara and

Elliott because these defendants burned a cross because

they were angry that their neighbor had complained

about the presence of a firearm shooting range in the

Elliotts’ yard, not because of any racial animus.

App. 37

Additionally, the Supreme Court pointed out in

R.A.V. that a valid basis for according differential treat-

ment even to a content-defined subclass of proscribable

speech is when the subclass happens to be associated

with particular secondary effects of the speech so that the

regulation is justified without reference to the content of

the speech. The ordinance that the Supreme Court invali-

dated in R.A.V. targeted any cross burning that “one

knows or has reasonable grounds to know arouses anger,

alarm or resentment.” 505 U.S. at 380.

By contrast, from its clear and unambiguous lan-

guage, the purpose of the Virginia statute, Code

§ 18.2-423, is not to suppress repugnant ideas, but rather

to proscribe physical acts intended to inflict bodily harm

upon the victims of such acts. Simply stated, the Virginia

statute proscribes acts of intimidation, but it does not

prohibit persons from expressing their views, irrespective

of how repugnant or offensive those views may be to

others. The Virginia statute does not prohibit the burning

of a cross so long as that act is committed without an

intent to place a person in fear of bodily harm. See also In

re Steven S., 31 Cal. Rptr. 2d 644, 646, 647-48 (Cal. Ct. App.

1994) (statute proscribing the act of “burn[ing] a cross on

the private property of another for the purpose of ter-

rorizing the owner or occupant or in reckless disregard of

that risk” is not impermissible content-based prohibition

on speech within the meaning of the First Amendment);

State v. Talley, 858 P.2d 217, 220, 225-27 (Wash. 1993)

(statute proscribing cross burning that places another

person in reasonable fear of harm to his person or prop-

erty does not violate the First Amendment).

App. 38

I recognize that the Supreme Court of South Caro-

lina, in State v. Ramsey, 430 S.E.2d 511 (S.C. 1993), invali-

dated a statute that prohibited the burning of a cross on

the basis that it contravened the First Amendment. The

South Carolina statute, however, was significantly differ-

ent from the Virginia statute. The South Carolina statute

stated: “It shall be unlawful for any person to place or

cause to be placed in a public place in the State a burning

or flaming cross or any manner of exhibit in which a

burning or flaming cross, real or simulated, is the whole

or a part. . . without first obtaining written permission of

the owner or occupier of the premises so to do.” Id. at

514.

Unlike Code § 18.2-423, which proscribes the burning

of a cross with the intent of intimidating and, thus, pro-

hibits real threats, the South Carolina statute contained

no similar limitation. The Supreme Court of South Caro-

lina concluded that its statute was enacted “in order to

protect individuals and society as a whole from the repre-

hensible messages often sought to be symbolicly [sic]

expressed by a burning cross.” Ramsey, 430 S.E.2d at 514.

As I have already explained, Virginia’s statute does not

suffer from this constitutional defect. Thus, the differ-

ences between the Virginia statute and the South Carolina

statute are real and significant. Yet, the majority ignores

the differences between Code § 18.2-423 and the South

Carolina statute.

I also observe that the Maryland Court of Appeals, in

State v. Sheldon, 629 A.2d 753, 755 (Md. 1993), held that a

Maryland statute violated the First Amendment because

it required those who wished to burn crosses or religious

symbols to “secure the permission of the property owner

App. 39

where the burning is to occur and [to} notify the local fire

department before engaging in the burning.” That statute

stated in part:

“It shall be unlawful for any person or per-

sons to burn or cause to be burned any cross or

other religious symbol upon any private or pub-

lic property within this State without the

express consent of the owner of such property

and without first giving notice to the fire

department which services the area in which

such burning is to take place.”

Id. at 755. Unlike the Virginia statute, the Maryland stat-

ute did not proscribe burning a cross with the intent of

intimidating, but rather, is content-based regulation of

expression. The Maryland Supreme Court found “no way

to justify the cross burning statute without referring to

the substance of speech it regulates, because the statute

does not protect property owners or the community from

unwanted fires any more than the law already protected

those groups before the statute’s enactment.” Id. at 755.

Yet, the majority ignores these significant distinctions.

IV.

Defendant Black argues that Code § 18.2-423 “does

not incorporate the requirements that the speech at issue

be directed to the incitement of imminent lawless action,

and likely to produce such action, and as such is uncon-

stitutional under the standard of Brandenburg v. Ohio, and

the Brandenburg standard was not satisfied here.” I dis-

agree with the defendant. The Supreme Court’s decision

in Brandenburg v. Ohio, 395 U.S. 444 (1969) simply has no

application here.

App. 40

The Supreme Court considered the following facts in

Brandenburg. Brandenburg, “a leader of a Ku Klux Klan

group, was convicted under the Ohio Criminal Syndical-

ism statute for ‘advocat[ing] . . . the duty, necessity, or

propriety of crime, sabotage, violence, or unlawful

methods of terrorism as a means of accomplishing indus-

trial or political reform’ and for ‘voluntarily assembl[ing]

with any society, group, or assemblage of persons formed

to teach or advocate the doctrines of criminal syndical-

ism.’” Id. at 444-45 (alteration in original).

Brandenburg placed a telephone call to a reporter on

the staff of a television station and invited the reporter to

attend a Ku Klux Klan rally that would be held at a

certain farm. “(T]he reporter and a cameraman attended

the meeting and filmed the events. Portions of the films

were later broadcast on the local station and on a national

network.” Id. at 445. The prosecutor relied upon the films

and testimony identifying the defendant as the person

who communicated with the reporter and who spoke at

the rally. The prosecutor “also introduced into evidence

several articles appearing in the film, including a pistol, a

rifle, a shotgun, ammunition, a Bible, and a red hood

worn by the speaker in the films.” The only persons

present at the rally other than the participants were the

newsmen who made the film. Id. at 445-46.

The Supreme Court pointed out that “the constitu-

tional guarantees of free speech and free press do not

permit a State to forbid or proscribe advocacy of the use

of force or of law violation except where such advocacy is

directed to inciting or producing imminent lawless action

and is likely to incite or produce such action.” Id. at 447.

Continuing, the U.S. Supreme Court stated that

App. 41

“the mere abstract teaching . . . of the moral

propriety or even moral necessity for a resort to

force and violence, is not the same as preparing

a group for violent action and steeling it to such

action. . . . A statute which fails to draw this

distinction impermissibly intrudes upon the

freedoms guaranteed by the First and Four-

teenth Amendments. It sweeps within its con-

demnation speech which our Constitution has

immunized from governmental control.”

Id. at 448.

The Supreme Court invalidated the Ohio Criminal

Syndicalism Act because neither the indictment nor the

trial court’s instructions to the jury “refined the statute's

bald definition of the crime in terms of mere advocacy

not distinguished fror incitement to imminent lawless

action.” Id. at 448-49.

In stark contrast to the Supreme Court's decision in

Brandenburg, we are not concerned here with abstract

teaching regarding the moral propriety or even moral

necessity of violence as a means for accomplishing politi-

cal reform. Rather, the subject of this case is Code

§ 18.2-423, a statute which proscribes the burning of a

cross with the intent to intimidate, which we have held

means to place the victim in fear of bodily harm. And, |

note that the jury at defendant Black’s trial was speci-

fically instructed that

“{iJntimidate, as used in the term ‘with the

intent to intimidate’ means a motivation to

intentionally put a person or group of persons

in fear of bodily harm. Such fear must arise

from the willful conduct of the accused, rather

than from some mere temperamental timidity of

App. 42

the victim; however, the fear of the victim need

not be so great as to result in terror, panic, or

hysteria.”

I have already observed, in response to defendant's

counsel’s questions at trial, Rebecca Sechrist testified that

she was afraid that her “home would get burned or

something would happen to it.” Moreover, defendant

Black has never challenged the sufficiency of the evidence

to support the jury’s finding beyond a reasonable doubt

that his acts placed Sechrist in fear of bodily harm.

IV.

Defendant Black argues that “(t]he provision of Code

§ 18.2-423 providing that the burning of a cross shall be

prima facie evidence of an intent to intimidate permits a

jury to find intimidation from the mere act of cross-

burning alone, in contravention of the First Amendment.”

I disagree.

Code § 18.2-423 creates a statutory inference, and we

have stated that an “inference merely applies to the ratio-

nal potency or probative value of an evidentiary fact to

which the fact finder may attach whatever force or

weight it deems best.” Martin v. Phillips, 235 Va. 523, 526

n.1, 369 S.E.2d 397, 399 n.1 (1988). Additionally, “infer-

ences are never allowed to stand against ascertained and

established facts.” Ragland v. Rutledge, 234 Va. 216, 219,

361 S.E.2d 133, 135 (1987) (citing Southern Ry. v. Mays, 192

Va. 68, 76, 63 S.E.2d 720, 725, cert. denied, 342 U.S. 836

(1951)).

This statutory inference is a factor that the jury may

accept or reject in determining whether a defendant

App. 43

burned a cross with the intent te intimidate a victim. This

inference alone, however, is clearly insufficient to estab-

lish beyond a reasonable doubt that a defendant burned a

cross with the intent to intimidate. And, this statutory

inference does not, and cannot, absolve the Common-

wealth of its burden to prove each element of Code

§ 18.2-423 beyond a reasonable doubt.

Moreover, the jury in Black’s trial was specifically

instructed as follows:

“INSTRUCTION NO. 6

“THE COURT INSTRUCTS THE JURY

THAT:

“The burden is upon the Commonwealth to

prove by the evidence beyond a reasonable

doubt every material and necessary element of

the offense charged. It is not sufficient that the

jury believe the defendant's guilt probable, or

more probable than his innocence. Suspicion or

probability of guilt, however strong, will not

authorize a conviction. The evidence must prove

his guilt beyond a reasonable doubt. The jury

shall not speculate or go outside the evidence to

consider what they think might have taken

place, but you are to confine your consideration

to the evidence introduced by the Common-

wealth and the defense and unless you believe

that the guilt of Barry Elton Black has been

proved beyond a reasonable doubt as to every

material and necessary element of the offense

charged against him, then you shall find him not

guilty.”

App. 44 App. 45

“INSTRUCTION NO. 8 V

“THE COURT INSTRUCTS THE JURY F ?’

THAT: or the foregoing reasons, I would affirm the judg-

ments of the Court of Appeals.

“The defendant is che ged with the crime of

placing a burning cross i.. a public place with

the intent to intimidate. The Commonwealth

must prove beyond a reasonable doubt each of

the following elements of that crime:

“(1) That the defendant burned or caused

to be burned a cross in a public place; and

“(2) That he did so with the intent to

intimidate any person or group of persons.

“If you find from the evidence that the

Commonwealth has proved beyond a reason-

able doubt each of the above elements of the

offense as charged, then you shall find the

defendant guilty, but you shall not fix the pun-

ishment until your verdict has been returned

and further evidence has been heard by you.

“If you find that the Commonwealth has

failed to prove beyond a reasonable doubt either

or both of the elements of the offense, then you

shall find the defendant not guilty.”

As these jury instructions indicate, the Commonwealth

was required to prove each and every element of its case,

including the requirement of intimidation, beyond a rea-

sonable doubt.

App. 46

VIRGINIA:

In the Court of Appeals of Virginia on Tuesday the 19th day

of December, 2000.

Barry Elton Black, Appellant,

against Record No. 1581-99-3

Circuit Court No. CR 98-461

Commonwealth of Virginia, Appellee.

From the Circuit Court of Carroll County

Before Chief Judge Fitzpatrick,

Judges Coleman and Frank

For the reasons stated in O’Mara v. Commonwealth, 33

Va. App. 525, 535 S.E.2d 175 (2000), we affirm the judg-

ment of the trial court.

This order shall be certified to the trial court.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By: /s/ Marty V. P. Ring

Deputy Clerk

App. 47

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Bray and Bumgardner

Argued at Chesapeake, Virginia

JONATHAN STEPHEN

O’MARA

v. Record No. 0992-99-1

COMMONWEALTH OF

VIRGINIA

RICHARD J. ELLIOTT

v. Record No. 0997-99-1

COMMONWEALTH OF

VIRGINIA

OPINION BY

JUDGE RICHARD S. BRAY

OCTOBER 3, 2000

FROM THE CIRCUIT COURT OF THE

CITY OF VIRGINIA BEACH

Frederick B. Lowe, Judge

Kevin E. Martingayle (Stallings & Richardson,

P.C., on briefs), for Jonathan Stephen O’Mara.

James O. Broccoletti (Zoby & Broccoletti, on

brief), for Richard J. Elliott.

H. Elizabeth Shaffer, Assistant Attorney Gen-

eral; John H. McLees, Jr., Senior Assistant Attor-

ney General (Mark L. Earley, Attorney General,

on briefs), for appellee.

Pursuant to the terms of a plea agreement, Jonathan

O’Mara pled guilty to “Attempted Cross Burning” and

“Conspiracy to Commit a Felony,” violations of Code

§§ 18.2-423 and 18.2-22, respectively, expressly reserving

the right to appeal a prior order of the trial court which

denied his challenge to the constitutionality of Code

App. 48

§ 18.2-423. In a separate proceeding, Richard J. Elliott,

codefendant with O’Mara, was convicted by a jury for

attempted cross burning, after joining with defendant

O’Mara in the unsuccessful challenge to the constitu-

tionality of Code § 18.2-423 before the trial court.?

Accordingly, both O’Mara and Elliott (defendants)

maintain on appeal “that the code section is unconstitu-

tional as violative of the free speech and expression pro-

tections” guaranteed by both the United States and

Virginia Constitutions. Joining the two appeals for resolu-

tion by this Court, we affirm the respective convictions.

The substantive facts are uncontroverted. On the eve-

ning of May 2, 1998, defendants, together with “approxi-

mately fifteen individuals,” were “consuming alcohol” at

the Virginia Beach home of David Targee. When defen-

dant Elliott expressed unspecified “complaint([s]

... about his neighbor,” James Jubilee, and his desire to

“ ‘get back’ at him,” someone “suggested that they burn a

cross in [Jubilee’s] yard.” In response, Targee and defen-

dants immediately constructed a crude cross in Tragee’s

garage and proceeded in Targee’s truck to the Jubilee

home. Elliott “handed the cross” to defendant O’Mara,

who erected and ignited it on Jubilee’s property, and the

1 Although Judge Lowe presided at the trials of both

O’Mara and Elliott, defendants’ constitutional challenges were

decided by Judge Alan E. Rosenblatt, following an extensive

hearing and related argument and memoranda of law.

App. 49

three returned to Targee’s residence. The respective

records do not clearly specify Jubilee’s race.

Jubilee later discovered the “partially burned cross”

and notified police, resulting in the subject prosecutions

for violations of code § 18.2-423 and the attendant con-

spiracy.

II.

Code § 18 2-423 provides:

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 person who

shall violate any provision of this section shall

be guilty of a Class 6 felony.

Any such burning of a cross shall be prima

facie evidence of an intent to intimidate a per-

son or group of persons.

Defendants contend that the statute impermissibly

infringes upon expressive conduct, speech protected by

the First and Fourteenth Amendments to the Constitution

of the United States and Article I, § 12 of the Virginia

Constitution, and, therefore, is “plainly unconstitu-

tional.”?

2 “[L)itigants may challenge a statute on first amendment

grounds even when their own speech is protected.” Coleman v.

City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42

(1988) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).

App. 50

“‘In assessing the constitutionality of a stat-

ute .. . [t]he burden is on the challenger to prove the

alleged constitutional defect.’ ” Woolfolk v. Commonwealth,

18 Va. App. 840, 848, 447 S.E.2d 530, 534 (1994) (quoting

Perkins v. Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229,

233 (1991)).

“Every act of the legislature is presumed to be

constitutional, and the Constitution is to be

given a liberal construction so as to sustain the

enactment in question, if practicable.” Bosang v.

Iron Belt Bldg. & Loan Ass'n, 96 Va. 119, 123, 30

S.E. 440, 441 (1898). “When the constitutionality

of an act is challenged, a heavy burden of proof

is thrust upon the party making the challenge.

All laws are presumed to be constitutional and

this presumption is one of the strongest known

to the law.” Harrison v. Day, 200 Va. 764, 770, 107

S.E.2d 594, 598 (1959).

Moses v. Commonwealth, 27 Va. App. 293, 298-99, 498

S.E.2d 451, 454 (1998).

The First Amendment declares, “Congress shall make

no law respecting an establishment of religion, or prohib-

iting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peace-

ably to assemble, and to petition the government for a

redress of grievances.” The Fourteenth Amendment pro-

hibits state action in violation of the First Amendment.

Similarly, Article I, § 12 of the Virginia Constitution

establishes: !

That the freedoms of speech and of the press are

among the great bulwarks of liberty, and can

App. 51

never be restrained except by despotic govern-

ments; that any citizen may freely speak, write,

and publish his sentiments on all subjects, being

responsible for the abuse of that right; that the

General Assembly shall not pass any law

abridging the freedom of speech or of the press,

nor the right of the people peaceably to assem-

ble, and to petition the government for the

redress of grievances.

“Our courts have consistently held that the protections

afforded under the Virginia Constitution are co-extensive

with those in the United States Constitution.” Bennefield v.

Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306,

311 (1996).

Although “(t]he First Amendment literally forbids

the abridgement only of ‘speech,’” the Supreme Court

has “long recognized that its protection does not end at

the spoken or written word.” Texas v. Johnson, 491 U.S.

397, 404 (1989). “[C]onduct may be ‘sufficiently imbued

with elements of communication to fall within the scope

of the First and Fourteenth Amendments.’ ” Id. (quoting

Spence v. Washington, 418 U.S. 405, 409 (1974)). In identify-

ing expressive conduct, the Court must determine

“whether ‘[a]n intent to convey a particularized message

was present, and [whether] the likelihood was great that

the message would be understood by those who viewed

it.’ ” Id. (alterations in original) (quoting Spence, 418 U.S.

at 410-11). If so, a proscription of such activity by govern-

ment “because of disapproval of the ideas expressed” is

“content based” suppression of free speech, offensive to

the First Amendment and “presumptively invalid.”

R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

App. 52

However, “our society . . . has permitted restrictions

upon the content of speech in a few limited areas, which

are ‘of such slight social value as a step to truth that any

benefit that may be derived from them is clearly out-

weighed by the social interest in order and morality.’ ” Id.

at 382-83 (quoting Chaplinsky v. New Hampshire, 315 U.S.

568, 572 (1942)). Thus, First Amendment protection “does

not include a freedom to disregard these traditional lim-

itations,” thereby allowing government to regulate

obscenity, defamation, “fighting words,” id. at 383 (citing

Chaplinsky, 315 U.S. at 572), and threats of violence. See id.

at 383, 388 (citing Watts v. United States, 394 U.S. 705, 707

(1969)); see also In re: Steven S., 31 Cal. Rptr. 2d 644, 647

(Ct. App. 1994) (holding that threats and fighting words

are “remove[d] . . . from the scope of the First Amend-

ment”); Florida v. T.B.D., 656 So. 2d 479, 480-81 (Fla. 1995),

cert. denied, 516 U.S. 1145 (1996) (concluding that threats

of violence and fighting words are proscribable because

government has “valid interest” in protecting citizens

both from fear of violence and violence).

The “ ‘true threat’” doctrine articulated by the

Supreme Court in Watts permits punishment of actual

speech or expressive conduct “when a reasonable person

would foresee that the threat would be interpreted as a

serious expression of intention to inflict bodily harm.” In

re: Steven S., 31 Cal. Rptr. 2d at 647 (citing Orozco-San-

tillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990)). Similarly, the

Court's “fighting words doctrine” expressed in Chaplinsky

removes the shield of the First Amendment from “state-

ments ‘which by their very utterance inflict injury or tend

to incite an immediate breach of the peace.’ ” Id. (quoting

Chaplinsky, 315 U.S. at 572); see Cohen v. California, 403

App. 53

U.S. 15, 20 (1971) (describing fighting words as expres-

sions likely to provoke a violent reaction when directed

to another).

Here, the provisions of Code § 18.2-423 specifically

prohibit the burning of a cross “on the property of

another, a highway or other public place,” “with the

intent of intimidating any person or group of persons.”

Historically, a flaming cross is “inextricably linked . . . to

sudden and precipitous violence - lynchings, shootings,

whippings, mutilations, and home-burnings,” a “connec-

tion . . . [with] forthcoming violence [that] is clear and.

direct.” T.B.D., 656 So. 2d at 481. Hence, “a burning cross

conveys ideas capable of eliciting powerful responses

from those engaging in the conduct and those receiving

the message.” State v. Ramsey, 430 S.E.2d 511, 514 (S.C.

1992).

Manifestly, the pernicious message of such conduct, a

clear and direct expression of an intention to do one

harm, constitutes a true threat envisioned by Watts, irre-

spective of racial, religious, ethnic or like characteristics

peculiar to the victim. Moreover, the attendant fear and

intimidation subjects the victim to an immediate and

calculated injury that invites a breach of the peace, fight-

ing words within the intendment of Chaplinsky. Thus,

although such expressive conduct doubtless constitutes

speech, the prohibition of which unavoidably implicates

content, the message is beyond the protection of the First

Amendment and appropriately subject to proscription by

government.

Defendants’ reliance upon Brandenburg v. Ohio, 395

U.S. 444 (1969), to support the contention that Code

App. 54

§ 18.2-423 unconstitutionally prohibits “merely intimidat-

ing someone,” at once ignores the well-established sym-

bolism of the burning cross and misapplies Brandenburg.

Brandenburg addressed a challenge to the constitutionality

of Ohio’s “Criminal Syndicalism statute,” which pro-

scribed, inter alia, the “ ‘advocacy . . . [of] the duty,

necessity, or propriety of crime, sabotage, violence or

unlawful methods of terrorism as a means of accomplish-

ing industrial or political reform.’ ” Id. at 444-45. Thus,

the Brandenburg Court was concerned with the propriety

of governmental restrictions on the “advocacy of the use

of force or of law violation” in the context of a reform

movement, an issue unrelated to the vile and malevolent

expression contemplated by Code § 18.2-425. Id. at 447.

Accordingly, the Brandenburg admonishment that states

may “forbid or proscribe [such] advocacy” only if

“directed to inciting or producing imminent lawless

action and . . . likely to incite or produce such action”

does not similarly delimit proscribable threats and fight-

ing words. Id.

Defendants’ assertion that R.A.V. v. St. Paul “makes it

clear . . . § 18.2-423 is unconstitutional” is, likewise,

without merit. R.A.V. examined the constitutionality of a

St. Paul, Minnesota ordinance, which provided, in perti-

nent part,

Whoever places on public or private property a

symbol, object, appellation, characterization or

graffiti, including, but not limited to, a burning

cross . . . Which one knows or has reasonable

grounds to know arouses anger, alarm or resent-

ment in others on the basis of race, color, creed,

religion or gender commits disorderly conduct

and shall be guilty of a misdemeanor.

App. 55

R.A.V., 505 U.S. at 380 (citing Minn. Legis. Code § 292.02

(1990)). Unlike code § 18.2-423, which proscribes cross

burnings with the intent to intimidate anyone, the St.

Paul ordinance prohibited such “speech solely on the

basis of the subjects the speech addresses,” race, color,

creed, religion ur gender. R.A.V., 505 U.S. at 381.

In declaring the enactment unconstitutional, the

Supreme Court accepted the “authoritative statement” by

the Minnesota Supreme Court “that the ordinance

reaches only those expressions that constitute ‘fighting

words,’ “3 id. at 381, and reaffirmed the doctrine that

“areas of speech can, consistently with the First Amend-

ment, be regulated because of their constitutionally proscrib-

able content — (obscenity, defamation, (threats, fighting

words] etc.).” Id. at 383 (emphasis in original). However,

the Court cautioned that such “categories of speech [are

not] entirely invisible to the Constitution” and cannot “be

made the vehicles for content discrimination unrelated to

their distinctively proscribable content.” Id. at 383-84.

Thus, when “St. Paul . . . proscribed fighting words of

whatever manner that communicates messages of racial,

gender or religious intolerance,” the city impermissibly

engaged in “[sJelectivity [which] creates the possibility

that [it] is seeking to handicap the expression of particular

ideas.” Id. at 394 (emphasis added); see In re: Steven S., 31

Cal. Rptr. 2d at 649 (“speech and expressive conduct may

be regulated [but] such regulation may not discriminate

within that category on the basis of content”); T.B.D., 656

3 In overruling defendants’ constitutional challenges in the

instant prosecutions, Judge Rosenblatt also determined that

code § 18.2-243 regulated fighting words.

App. 56

So. 2d at 4781 (such regulation may not “play [] favor-

ites”).

In contrast, Code § 18.2-423 regulates, without favor

or exception, conduct, which, despite elements of expres-

sion and content, is unprotected by the First Amend-

ment.

Finally, defendant challenges Code § 18.2-423, first,

as overbroad, regulating both protected and unprotected

speech, and, secondly, as underinclusive, ignoring other

modes of proscribable speech. However, overbreadth

assumes constitutional dimension only when “ ‘there [is]

a realistic danger that the statute . . . will significantly

compromise recognized First Amendment protections of

parties not before the court.’ ” Parker v. Commonwealth, 24

4 Post-R.A.V. decisions of other jurisdictions cited by

defendant in support of a different result involve statutes

substantially dissimilar from Code § 18.2-423. See Pinette v.

Capitol Square Review and Advisory Bd., 874 F.Supp. 791 (S.D.

Ohio 1994) (statute established permit requirements to conduct

public assembly); State v. Shelton, 629 A.2d 753 (Md. 1993)

(statute proscribed cross burning to protect property owners

from unwanted fires and safeguard community from fires

generally); State v. Vawter, 642 A.2d 349 (NJ. 1994) (statute

proscribed messages based upon race, color, creed or religion);

State v. Talley, 858 P.2d 217 (Wash. 1993) (statute proscribed

certain conduct related to the race, color, religion, ancestry,

natural origin, or mental, physical or sensory handicap of

another).

In contrast, jurisdictions examining the constitutionality of

statutes more akin to Code § 18.2-423 are in accord with our

conclusion. See In re: Steven S., 31 Cal. Rptr. 2d 644 (statute

proscribed cross-burning intended to terrorize owner or

occupant); T.B.D., 656 So. 2d 479 (statute proscribed burning of

cross on property of another without permission).

App. 57

Va. App. 681, 690, 485 S.E.2d 150, 154-55 (1997) (quoting

Members of City Council of City of Los Angeles v. Taxpayers

for Vincent, 466 U.S. 789, 800-01 (1984)). The prohibition of

Code § 18.2-423 is expressly limited to a person or per-

sons burning a cross with the specific intent to intimidate

another, a threat and fighting words unworthy of First

Amendment guarantees. Further, underinclusiveness is

condemned by R.A.V. only if the result is content discrim-

ination. See R.A.V., 505 U.S. at 387. Code § 18.2-423 crimi-

nalizes a long recognized, particularly virulent and

incendiary mode of proscribable expressive conduct, a

prohibition free of content discrimination.

We, therefore, conclude that Code § 18.2-423 suffers

from none of the several unconstitutional infirmities

advanced by defendants. The statute targets only expres-

sive conduct undertaken with the intent to intimidate

another, conduct clearly proscribable both as fighting

words and a threat of violence. The statute does not

discriminate in its prohibition and is neither overbroad

nor underinclusive.

Accordingly, we affirm the convictions.

Affirmed.

App. 58

CONVICTION AND SENTENCING ORDER

VIRGINIA: IN THE CIRCUIT COURT

OF CARROLL COUNTY

FEDERAL INFORMATION PROCESSING

STANDARDS CODE: 035

Hearing Date: June 23, 1999

Judge: DUANE E. MINK

COMMONWEALTH OF VIRGINIA

BARRY ELTON BLACK, DEFENDANT

This day came the defendant, who appeared in per-

son with his attorney, David P. Baugh. The Common-

wealth was represented by Gregory G. Goad. Whereupon

the accused was arraigned and after private consultation

with his said attorney, pleaded not guilty to the Indict-

ment, which plea was tended by the accused in person.

After being advised by the Court of his right to trial

either by jury or by the Court and, after consultation with

counsel, the accused did not waive his right to trial by

jury and to which the Court approved.

The Court then impaneled twenty qualified jurors, free

from exception for the trial of the defendant. Whereupon

the Attorney for the Commonwealth and the attorney for

the defendant each alternately exercised their rights to

strike the names of four veniremen from the panel, as

provided by law, and the remaining twelve jurors, consti-

tuting the jury for the trial of the defendant, were duly

sworn.

App. 59

After opening statements, the evidence was presented by

the Commonwealth and the defendant.

At the conclusion of the Commonwealth’s evidence, the

attorney for the defendant moved the Court to strike the

Commonwealth’s evidence on grounds stated to the

record, which motion was overruled and exception was

noted.

At the conclusion of all the evidence, the attorney for the

defendant renewed his motion to strike the Common-

wealth’s evidence on the same grounds, which motion

was overruled and exception was noted.

After hearing the evidence, the instructions of the Court

and argument of counsel, the jurors were sent to the jury

room to consider their verdict. They subsequently

returned their verdict in open Court, in the following

words:

Costs. The defendant shall pay costs of $4107.50. The

defendant is Ordered to pay unto the Commonwealth its

costs in this case puscuant to law including any Court

appointed counsel fee allowed by this Court. The defen-

dant was advised by the Court that his driver’s license

shall be revoked according to Virginia Cede Section

46.2-395, and that he is subject to further charges as set

forth in Virginia Code Section 19.2-358 for failure to pay

according to the direction of the Court. The defendant

shall pay according to a schedule to be filed with the

Court for monthly payments which are due each month

until all costs are paid in full.

App. 60

And it is further Ordered that pursuant to Section

19.2-310.3 of the Code of Virginia, as amended, the defen-

dant shall have a sample of his blood taken for analysis.

The Court Orders the defendant to cooperate fully and

promptly in permitting the said withdrawal of blood as

required by law. The Court Orders the defendant to

report to the New River Valley Regional Jail on June 24,

1999, at 9:00 a.m., for the withdrawal of the said sample

of blood in accordance with law.

Thereupon, the jury was discharged.

And counsel for the defendant moved the Court to stay

the execution of the fine pending the defendant's decision

regarding appeal and the perfection of said appeal if so

noted, and which motion is granted. The Court further

Orders a stay in the payment of costs to the Common-

wealth pending the perfection of an appeal if noted.

The Court certifies that at all times the defendant was

personally present with his attorney who capably repre-

sented him.

June 28, 1999 ENTER: /s/ Duane E. Nuich

DATE JUDGE

DEFENDANT IDENTIFICATION:

Alias: none

SSN: 159-40-8378 DOB: 1/6/48 Sex: male

SENTENCING SUMMARY:

TOTAL SENTENCE IMPOSED: $2,500.00 fine

TOTAL SENTENCE SUSPENDED: none

App. 61

TwentTy-SEVENTH JUDICIAL CiRcUIT

OF VIRGINIA

(LOGO)

COMMONWEALTH OF VIRGINIA

[Name And Address Omitted In Printing]

March 18, 1999

[Filed Aug. 31, 1999]

Mr. David P. Baugh

Attorney at Law

223 South Cherry Street

P. O. Box 12137

Richmond, Virginia 23241

Mr. Gregory G. Goad

Commonwealth Attorney

County of Carroll

P. O. Box 280

Hillsville, Virginia 24343

Re: Commonwealth of Virginia versus Barry E. Black

Case Number 98-8954

Dear Counselors:

Please be advised that I have reviewed all of the mem-

orandums filed in this cause, both in the General District

Court and in the Circuit Court, on behalf of each of the

parties, and the Amiscus [sic] Curiae brief filed in sup-

port of the defendant’s position in this matter, and I have

given due consideration thereto.

The issue before the Court is the motion to dismiss the

indictment against the defendant, Barry E. Black, upon

the ground that Section 18.2-423, Code of Virginia is

App. 62

unconstitutional and violates the freedom of speech vio-

lations of the First Amendment of the United States Con-

stitution, and Article I, Section 12 of the Virginia

Constitution. In support of that motion, the defendant

alleges as follows:

1. Section 18.2-423 discriminates on the basis of content

and viewpoint and is unconstitutional under the doctrine

of R. A. V. v. City of St Paul.

2. Section 18.2-423 does not incorporate the requirement

that the speech at issue be directed to the incitement of

imminent lawless action and likely to produce such

action, and as such is unconstitutional under the standard

of Brandenburg »v. Ohio.

3. The prima facie evidence standard of Section 18.2-423

creates an unconstitutional presumption.

4. Section 18.2-423 is unconstitutionally vague and over-

broad.

Rather than discuss the issues in the chronology set forth

above, the court has determined that it would be appro-

priate to consider them, to the extent necessary, in reverse

order. I have chosen this approach since the ultimate

reviewing authority, the United Sates Supreme Court, has

held that in construing ordinances that Court is bound by

the construction given to it by the State Court. R. A. V. v.

City of St. Paul, Minn., 505 U.S. 377, 381; 112 S.Ct. 2538,

2542 (1992). First it is noted for the record that the Com-

monwealth in this case is represented, not only by the

local Commonwealth Attorney, Gregory G. Goad, but also

by John McLees, from the Office of the Attorney General

of the Commonwealth of Virginia. The Court is of the

App. 63

opinion that the arguments set forth in the memoran-

dums filed on behalf of the Commonwealth represents

not only the official position of the Commonwealth Attor-

ney of Carroll County, but also the Attorney General's

Office of the Commonwealth of Virginia. Throughout the

lower court proceedings and in the current proceedings

in the Circuit Court, the Commonwealth has maintained

the gravaman [sic] of the offense is intimidation in that

Code Section 18.2-423! criminalizes on the burning of a

cross “with the specific intent to intimidate”, (Comm.

Brief Gen. Dist. Ct., Page 3 and Comm. Brief, Cir.Ct., Page

3). In addition, in support of its response to the allegation

that the section is vague and overboard its position is that

“intimidation” as used in such statutes, means putting

one in fear of bodily harm and further that statutory

construction would require this Court to construe the

word narrowly, (Comm. Supplemental Brief, Page 10).

In responding to the defendant's allegation that the prima

facie provision of the statute creates an unconstitutional

presumption, the Commonwealth concedes that “the

‘prima facie’ provision does not preclude review by a

case-by-case basis of whether the defendant did in fact

intend to intimidate others by his act of cross burning. On

the contrary, it requires such review. It merely establishes

? Section 18.2-423, Code of Virginia, states: 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 person who shall violate any provision

of this section shall be guilty of a Class 6 felony.

Any such burning of a cross shall be prima facie evidence of

an intent to intimidate a person or group of persons.

App. 64

that a reasonable inference of such intent can be drawn

from cross-burning. The ultimate burden of persuasion of

intent to intimidate always rests upon the Common-

wealth. Thus, it is always open to the defendant to con-

test the issue of whether that intent existed, and the

burden is on the Commonwealth to prove such intent, as

a matter of fact, beyond a reasonable doubt, and without

regard to whether the defendant has presented evidence

on that issue or not”. (Comm. Supplement Brief, Page 9).

The Commonwealth concludes by stating “It is clear from

reading the law that, notwithstanding the ‘prima facie’

provisions, the ultimate burden is still on the Common-

wealth to prove beyond a reasonable doubt that the

defendant actually intended to intimidate others by his

actions”.

This Court accepts the Commonwealth's position that the

Code Section 18.2-423 reaches only the crime of intimida-

tion when an accused actually intended to intimidate

others by his actions, such limitation saves the statute

from being a proscription of speech in violation of the

First Amendment and Article 1, Section 12 of the Virginia

Constitution. The narrow application of the provisions of

the above referenced section can be adequately addressed

by appropriate instructions to the jury and well defined

perimeters with regard to admission of evidence to the

very limited and precise criminal act defined therein.

Accordingly, the defendant’s Motion to Dismiss the

indictment is denied. I request that Mr. Goad contact Mr.

Baugh to arrange a suitable date to proceed with the trial

of this case.

App. 65

I commend both of you gentlemen on the time, effort and

excellent memorandums which you submitted to the

Court in support of your respective positions.

With best regards.

Yours very truly,

/s/ Duane E. Mink

Duane E. Mink

DEM:nc

App. 66

Commonwealth v. Black

INSTRUCTION NO. 8

THE COURT INST RUCTS THE JURY THAT:

The defendant is charged with the crime of plac-

ing a burning cross in a public place with the intent to

intimidate. The Commonwealth must prove beyond a

reasonable doubt each of the following elements of that

crime:

(1) That the defendant burned or caused to be

burned a cross in a public place; and

(2) That he did so with the intent to intimidate any

person or group of persons.

If you find from the evidence that the Common-

wealth has proved beyond a reasonable doubt each of the

above elements of the offense as charged, then you shall

find the defendant guilty, but you shall not fix the pun-

ishment until your verdict has been returned and further

evidence has been heard by you.

If you find that the Commonwealth has failed to

prove beyond a reasonable doubt either or both of the

elements of the offense, then you shall find the defendant

not guilty.

INSTRUCTION NO. 8-1

THE COURT INSTRUCTS THE JURY THAT:

Intimidate, as used in the term “with the intent to

intimidate” means 4 motivation to intentionally put 4

App. 67

person or group of persons in fear of bodily harm. Such

fear must arise from the willful conduct of the accused

rather than from some mere temperamental timidity of

the victim; however, the fear of the victim need not be so

great as to result in terror, panic, or hysteria.

INSTRUCTION NO. 9

THE COURT INSTRUCTS THE JURY THAT:

The burning of a cross, by itself, is sufficient evidence

from which you may infer the required intent.

INSTRUCTION NO. 10

THE COURT INSTRUCTS THE JURY THAT:

A “public place” is any place open to the knowledge

or view of all; generally seen or known; without privacy

or concealment.

App. 68

VERDICT FORM

We the jury find the Defendant guilty of burning a

cross in a public place with the intent to intimidate, as

charged in the indictment.

/s/ Dannie Martin

FOREMAN

We the jury find the Defendant not guilty.

FOREMAN

App. 69

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY

OF VIRGINIA BEACH

HEARING DATE: APRIL 26, 1999

JUDGE: LOWE

COMMONWEALTH OF VIRGINIA

RICHARD J. ELLIOTT, DEFENDANT

SSN: 231-23-9687

DOB: 8/16/79

SENTENCING ORDER - CASE NO.: CR98-3631

Attorney for the

Commonwealth: A. Farashahi and S. Vachris

Attorney for the

Defendant: J. Broccoletti

Court Reporter: Ronald Graham & Associates, Inc.

The defendant was again present and represented by

counsel.

On February 23, 1999 the defendant was found

GUILTY of the following offense:

OFFENSE (F/M) DATE SECTION

Attempted Cross Burning

to Intimidate — F 5/2/98 18.2-423; 18.2-26

The presentence report was considered and filed as

part of the record in accordance with the provisions of

Code § 19.2-299.

Before pronouncing the sentence, the Court inquired

if the defendant desired to make a statement and if the

App. 70

defendant desired to advance any reason why judgment

should not be pronounced.

In accordance with the jury’s verdict, the Court SEN-

TENCES the defendant to:

Incarceration in the jail of this City for the term

of 90 days and imposes a fine of $2,500.00.

The defendant shall pay costs of $1,393.00.

The Court, having been advised of the defendant's

intention to appeal the matter to the Court of Appeals of

Virginia, stayed the execution of the sentence and granted

the defense attorney’s motion to allow the defendant to

remain on the same bond previously posted pending the

appeal.

ENTERED: 5/6/99

/s/ FBL

JUDGE

clerk: ssm

App. 71

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY

OF VIRGINIA BEACH

HEARING DATE: FEBRUARY 23, 1999

JUDGE: LOWE

COMMONWEALTH OF VIRGINIA

RICHARD J. ELLIOTT, DEFENDANT

SSN: 231-23-9687

DOB: 8/16/79

OFFENSE: OFFENSE DATE:

CONSPIRACY MAY 2, 1998

ATTEMPTED CROSS BURNING

TO INTIMIDATE MAY 2, 1998

CRIMINAL ORDER - Case No.: CR98-3631

Attorney for the

Commonwealth: S. Vachris and A. Farashahi

Attorney for the

Defendant: J. Broccoletti

Court Reporter: Ronald Graham & Associates, Inc.

The defendant was again present, in person, and

represented by counsel.

This day came again a jury sworn for the trial of this

case.

The jurors were again sent to the jury room to con-

sider their verdicts. They subsequently return in open

court the following verdicts:

1. We, the jury, find the defendant GUILTY of

Attempted Cross Burning to Intimidate.

App. 72 App. 73

2. We, the jury, find the defendant NOT GUILTY of Bond Status: The defendant was continued on the

oe same bond previously posted.

After the jury returned its verdicts, the defendant ENTERED: 2/25/99

moved to poll the jury and all the jurors affirmed their /s/ FBL

vote as to the verdicts. JUDGE

clerk: ssm

A separate proceeding limited to the ascertainment of

punishment was held before the same jury. After hearing

further evidence and argument of counsel, the jurors

were sent to the jury room to consider punishment. They

returned in open court the following verdict:

1. We, the jury, having found the defendant GUILTY of

Attempted Cross Burning to Intimidate, fix his pun-

ishment at: confinement in jail for 90 days and a fine

of $2,500.00.

After the jury returned its verdict, no motion was

made to poll the jury as to its verdict.

The Court confirmed the jury’s verdict finding the

defendant GUILTY of Attempted Cross Burning to Intim-

idate and NOT GUILTY of Conspiracy, of which charge

the defendant stands acquitted.

The case was continued until April 26, 1999 for sen-

tencing. The Court ordered the Probation Office to pre-

pare a presentence report.

The Clerk shall send a copy of this order to the

Probation Office of this Court.

App. 74

VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF

VIRGINIA BEACH

HEARING DATE: JANUARY 20, 1999

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