# Petition for Writ of Certiorari — Virginia v. Black

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 343

## Text

a

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

i
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?

ii
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

iv

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

v

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,

© Bee Bee Ghee Ge ccc cccccccccccccccccs 24, 25
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
© GG.BR, Fie. GitB ccc ccccccccccccccccccccccccccccccs 14
BS, Gee AGE. Bi, B TA cccccccccccccccccccoccccces 21
Ss SED cncccccccccccccccccescoccecooeesces 22

BOW DABEGERE) 2 nc ccccccccccccccccccccccccccccces 16

vi

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

1
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.

2
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

3

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.

4

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.

5

. 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

6

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.

7

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.

8

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.

9

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.

10

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

11

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.

12

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

13

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.

14
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

15

* * *

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,

16

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.

17

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.

18

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

19

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.”

20

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...”

21

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.

22

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.

23

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]...

24

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:

25

[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.

26

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.

27

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

28

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.

29

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).

30
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.

47

58

61

69

71

75

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
5.

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.
A.

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.”

B.

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.

on

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 o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A02. Public record. Not legal advice.