Opposition Brief — Virginia v. Black

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N Supreme Sourt, US.

No. 01-1107 ri Le D

dn he |

APR 29 202

Supreme Court of the (Cnited States

CLERK

COMMONWEALTH OF VIRGINIA,

Petitioner,

Vv.

BARRY ELTON BLACK; RICHARD J. ELLIOTT;

JONATHAN O’MARA,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Rodney A. Smolla

Counsel of Record

T.C. Williams School of Law

University of Richmond

Richmond, Virginia 23173

(804) 289-8197

Rebecca K. Glenberg

Legal Director,

American Civil Liberties Union

of Virginia

6 North Sixth Street, Suite 400

Richmond, Virginia 23219

(804) 644-8080

James O. Broccoletti

Zoby & Broccoletti, P.C.

6663 Stoney Point South

Norfolk, Virginia 23520

(757) 466-0750

Counsel for Respondents

David P. Baugh

Sara G. Davis

Law Offices of David P. Baugh

233 South Cherry Street

Richmond, Virginia 23241

(804) 643-8111

Kevin E. Martingayle

Stallings & Richardson, P.C.

2101 Parks Avenue, Suite 801

Virginia Beach, Virginia 23451

(757) 422-4700

THE LEX GROUP ¢ 1108 East Main Street @ Suite 1400 ¢ Richmond, VA 23219 ;

(804) 644-4419 @ (800) 856-4419 © Fax: (804) 644-3660 @ www.thelexgroup.com "> ¢

TABLE OF CONTENTS

Page

TABLE OF AUTIRORIT IRS ..ccccsccccsscsssesscosccscsecnsvscsssscsscsoescossoses ii

STATEMENT OF THE CASE .........cccsccsccscsssrsccsessssessesssereeseores 1

REASONS FOR DENYING THE PETITION...........cssseeseeeeees 4

A. The Competing Lower Court

Interpretations Of R.A.V. .....sccscessessereeeeereereeenees 4

B. The Supreme Court of Virginia

Correctly Interpreted and Applied

RA. V ccocsnssmosssesscsemssenssevsinnenseneemmmaneetansatesnnseranees 7

C. Not All the Lower Court Decisions

Cited by the Commonwealth to

Support Its Claim of Conflict Are

in Fact in Direct Conflict with the

Opinion of the Supreme Court of

Vin glee BebOW ..ccccccccccscsscscccssccsesccscscesecsccscsonsees 10

1. FRB IRIER ccccscesccesscsnsssesecsssensesesenenssnenscsesanti 12

2. CA IIIES cccccsessccecersnsccensnessnesennseseusesesenin 15

3 Waiting t0Mr......cccrccccccccccsceccecsssccscccecccesese 20

4 The Federal Courts of

Appell ....cccccccccccrecsccscreccecrscceccescecsessesossoes 26

GAS cnassnscsessosnsssssecssraneninasesancossonesimasnnsnniennenansiietens 29

TABLE OF AUTHORITIES

Page(s)

Cases

Black v. Commonwealth of Virginia,

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

Brandenburg v. Ohio,

Ca Ge Ci cscs cnsccncensscccszscccvassvesecsnvsniasem 19, 28, 29

Chaplinsky v. New Hampshire,

SOD TB, BaD Ca ceccccccccscessescsccsersnssnseresvssscnsssnessnsnnese 18

In re Steven S.,

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

review denied, 1994 Cal. LEXIS 5185 (Cal. 1994) .. passim

O’Mara v. Commonwealth,

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

People v. Carr,

97 Cal.Rptr.2d 143 (Cal. App. 2000).........ceseseeees 16, 19

R.A.V. v. City of St. Paul,

FED UB. FIT (2D acccccccccecensccsccscsscvscsscsensscsssocoessees passim

State v. Ramsey,

430 S.B.24 S11 (S.C. 1998).....ccccccccccscccccscsccsecssesecsscsscsses 11

State v. Sheldon,

GB ADE TED CEE. GDB) ncrcerccrcesccesceccsccsceccoscccceccscseccesees il

State v. Stalder,

630 SO.2d 1072 (Fla.1994).......scessserserssesersersensensenes 13, 14

State v. Talley,

858 P.2d 217 (Wash. 1993)......-ssseerseseeees 20, 21, 22, 24

State v. T.B.D.,

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

516 U.S. 1145 (1996) ......cscecseerseereeseesnersnennenes 6, 12, 13, 14

State v. Vawter,

642 A.2d 349 (N.J. 1994) ....ccerersercessssensneersnensenenennsnsennes 11

Texas v. Johnson,

491 U.S. 397 (1989) ......eccccsrserercersessessnsenesnsnnensnnensnsnenens 20

United States v. Hayward,

6 F.3d 1241 (7' Cir. 1993)....c.ccecceeeeeeerseseresnnsenenenes 27, 28

United States v. J.H.H.,

22 F.3d 821 (8! Cir. 1994).......ccccsseesereserserenennenenes 26, 27

United States v. Orozco-Santillan,

903 F.2d 1262 (9 Cir. 1990) .......sseseeerersereerensenenenannes 17

Watts v. United States,

394 U.S. 705 (1969) ......ccescereeseresessesseenessrsnsnssnnenennenanes 9,17

Wisconsin v. Mitchell,

508 U.S. 476 (1993) .....cceccceecseersseseenenerennnenes 20, 23, 24, 25

Constitutional Provisions

U.S. CONST. amend. 1........ccccseeseeeesseennsennnsneensnenenennenennenens passim

Federal Statutes

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ee Gs a ctetecrstcncncnctestemnenesntinnainntanimnenemnannes 27

ie ie cccenrseneiccrinscscntsstcrnstieertemmanneiconmene 26, 27

State Statutory Provisions

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ee 16

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ee DE icrcnisenetineectinsiuninseiinenanininnenecuataceiamemammseies 21, 22

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See a cndesencescnsenunssasensessmnensecsasensesstuniniunstemanesente 21

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ETT SL EEE 22

St. Paul, Minn. Legis. Code § 292.02 (1990)....ssssssssesseeennsee 13

Va. Code Ann. § 18.2-423 (Michie 1996)

STATEMENT OF THE CASE

This case presents a First Amendment challenge

to Virginia’s cross-burning statute, which reads:

It shall be unlawful for any person or

persons, with the intent of intimidating

any person or group of persons, to burn,

or cause to be burned, a cross on the

property of another, a highway or other

public place. Any person who shall

violate any provision of this section shall

be guilty of a Class 6 felony.

Any such burning of a cross shall be

prima facie evidence of an intent to

intimidate a person or group of persons.

Va. Code Ann. § 18.2-423 (Michie 1996).

The prosecutions under this statute of

Respondents Richard J. Elliott and Jonathan O’Mara

arose from the same incident in the City of Virginia

Beach on May 2, 1998. James Jubilee, an African-

American, was a neighbor of Elliott's. Jubilee

complained to Elliot's father about the discharge of

firearms in Elliott's backyard. After discussing Jubilee’s

complaint with O’Mara and a third person, David

Targee, at a party at Targee’s home, Elliott, O’Mara,

and Targee hastily constructed a crude wooden cross in

Targee’s garage. They went to Jubillee’s home, planted

the cross in his back yard, and attempted to light the

cross. Pursuant to a plea agreement, O’Mara pled

guilty to attempted cross burning and conspiracy to

+t cross burning, and was sentenced to 90 days in

ial end a $2500 on 0 each charge, with part of the

time and fines suspended. Under the plea agreement,

O’Mara retained the right to appeal the

constitutionality of Virginia's cross-burning law.

Elliott was also charged with attempted se age

and conspiracy to commit cross-burning. Upon his p a

of not guilty, a jury found him guilty of attemp

cross-burning, but not guilty of conspiracy. Elliott -

sentenced to 90 days in jail and was fined $ 500.

O’Mara and Elliott appealed. A panel of the Virginia

Court of Appeals affirmed the convictions, holding that

the cross-burning statute “targets only expressive

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). O’Mara’s and Elliott’s petition for rehearing en

refused.

: " Seapendent Barry Elton Black organized and led

a Ku Klux Klan rally on August 22, 1998, in Carroll

County, Virginia. The Klan rally was conducted on

rural property with the permission of the perce

who also participated in the rally. No one other re

the participants in the rally was present on ver

property. The County Sheriff and Deputy wee -

the rally from an adjacent highway, to be sure =

would not get out of hand. A neighbor watched —

rally from her porch. Several vehicles passed - ae

rally on the highway, and the occupants of one vehicle,

an African-American family briefly slowed to see what

was going on, and then sped away. Following Ku ye

Klan traditions, the rally was largely comprised

hate-filled racial, ethnic, and religious bigotry. At the

height of the rally a cross a cross approximately 25 to

30 feet tall was ignited, while the hymn Amazing Grace

was played. The sight of the burning cross was visible

from the highway.

Black was indicted for violating Virginia's cross-

burning statute. He moved for dismissal of the

indictment on the grounds that the statute was

unconstitutional. The trial court denied Black’s motion

and, upon conviction by a jury, Black was sentenced to

pay a fine of $2500. Black’s conviction was affirmed by

the another panel of the Virginia Court of Appeals in a

one-sentence order, relying on the reasons the prior

panel of the Court of Appeals had articulated in the

Elliott and O’Mara cases.

The Supreme Court of Virginia heard oral

argument in all three cases on the same day, and in a

consolidated opinion, reversed all three convictions in

a 4-3 decision, holding that the Virginia cross-burning

Statute was unconstitutional on its face.' Black v.

Commonwealth of Virginia, 262 Va. 764, 553 S.E.2d 738

(2001), App.1.2 The Supreme Court of Virginia held

that the statute engaged in content-based

discrimination impermissible under the First

Amendment, relying principally on this Court's ruling

in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

‘Elliott and O’Mara brought only a facial challenge to tie

cross-burning statute. Black challenged the cross-burning statute

both on its face and as applied.

*Pinpoint page citations to the opinion of the Black opinion

throughout this Brief are made to the Appendix appropriate

Appendix page in the Petition for Certiorari.

REASONS FOR DENYING THE PETITION

The Competing Lower Court Interpretations of

R.A.V.

In R.A.V. this Court struck down an ordinance

of St. Paul Minnesota that 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 or resentment in others on

the basis of race, color, creed, religion or

gender commits disorderly conduct and

shall be guilty of a misdemeanor.

R.A.V., 505 U.S. at 380. This Court held that “the

ordinance goes even beyond _ ‘mere ore

discrimination, to actual viewpoint discrimination.” /@-

t 391. | |

: Two different understandings of the meaning of

R.A.V. v. City of St. Paul have surfaced among —

court jurists since this Court's decision in the case. The

“strong” version of R.A.V. treats the decision as

essentially an absolute bar against any statute we

singles out any symbol or group of symbols for speci

roscription or penalty. Under the strong reading ©

RAV. no cross-burning law will ever survive

constitutional attack, precisely and simply wey it ~

a cross-burning law. The strong version of R.A.V. w

permit the act of cross-burning to be prosecuted if the

law is content-neutral. So too, the strong version will

permit laws that punish bias-motivated crimes by

singling out for special proscription or penalty acts

motivated by biased intent, such as racism or religious

bigotry. Correspondingly, the strong version of R.A.V.

will permit symbolic expression such as cross-burning

to be introduced as evidence to establish invidious

intent. What the strong reading of R.A.V. will never

permit, however, is the penalizing of symbolic

expression, such as cross-burning, as such. See, e.g.,,

Black v. Commonwealth, App. 18 (“A statute selectively

addressed to the content of symbolic speech is not

permitted under the First Amendment.”); State v.

Ramsey, 430 S.E.2d 511, 514 (S.C. 1993) (applying R.A. V.

to strike down a cross-burning law, Stating: “Like the

Minnesota statute, section 16-7-120 does not completely

prohibit the use of fighting words; rather, it prevents

only the use of those fighting words symbolically

conveyed by burning a cross. The government may

not selectively limit speech that communicates, as does

a burning cross, messages of racial or religious

intolerance.”).

In contrast, the “weak” interpretation of R.A.V.

treats that decision as a far more permeable holding.

The weak version will permit a cross-burning law in

which the prohibition of cross-burning is tied to some

other constitutionally unprotected conduct, such as a

“threat” or act of “intimidation” or use of “fighting

words” as long as that proscription is itself content-

neutral. The weak version treats this Court’s

condemnation of content-based and viewpoint-based

discrimination is R.A.V. as residing in the language of

the St. Paul ordinance requiring that the symbolic

speech (such as burning a cross) be of the type “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.” See State v.

T.B.D., 656 So.2d 479, 481-82 (Fla. 1995), cert. denied,

516 U.S. 1145 (1996). A law that does not include any

such list of forbidden messages is content-neutral,

under the weak version, even though it may be limited

to symbolic acts such as burning crosses. The weak

version, however, posits that a properly drawn cross-

burning statute can be defended under one or more of

the “exceptions” for content-based regulation

recognized in R.A.V. Cases adopting the weak version

of R.A.V. frequently claim, as does the Commonwealth

in its Petition for Certiorari, that R.A.V. contained

exactly three such stylized doctrinal “exemptions.” See

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

review denied 1994 Cal. LEXIS 5185 (Cal. 1994). Relying

on various passages within the R.A.V. opinion, these

three exceptions are typically articulated as: (1) forms

of content discrimination in which “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; (2) content-based discrimination

against a subclass associated with particular

“secondary effects” of the speech, id. at 387; and (3)

situations where “the nature of the content

discrimination is such that there is no realistic

SS that suppression of ideas is afoot.” Id. at

These two differing views of the meaning of

R.A.V. are vividly represented by the divisions

between the majority and dissenting opinions in the

Supreme Court of Virginia below. More significantly,

the differences are observable in the conflicts posed by

some--though not all--of the cases cited by the

Commonwealth in its Petition for Certiorari.

B. The Supreme Court of Virginia Correctly

Interpreted and Applied R.A.V.

In their constitutional challenge to the Virginia

cross-burning statute, Elliott, O’Mara, and Black

maintained that the principal constitutional defect in

the law was not content-discrimination or viewpoint-

discrimination resting in either the identity of the

speaker, the identity of the alleged victims, or in any

specific message of bigotry, but rather rested blatantly

and, for First Amendment purposes, sufficiently, in the

fact that the law was limited to expression arising from

one symbol, and one symbol only: the burning cross.

*Respondents do not accept this understanding of R.A.V.

as sound. This Court’s ruling in R.A.V. cannot be reduced to a

mechanical outline, with a general rule against content

discrimination qualified by three well-defined exceptions.

Moreover, as set forth in Respondent’s argument later in this Brief,

the “exceptions” identified by the Commonwealth and those

judicial decisions sympathetic to its position interpret these

would-be exceptions in a manner that cannot be squared with the

larger holding or rationale of R.A.V. Suffice it to say at this

juncture, however, that decisions from other jurisdictions that

squarely conflict with the ruling of the Supreme Court of Virginia

below tend to rely on one or more of these perceived exceptions.

Out of all the objects in the world that might be set on

fire, the law selected only a burning cross for unique

treatment. At the highest level of abstraction a cross is

an object or symbol of a particular shape: a vertical bar

traversed by a horizontal bar. There certainly is

nothing in this geometric configuration of the vertical

and horizontal that carries any peculiarly dangerous

potency. It is not the fire that burns hotter when

flaming sticks are crossed, but the passions that the fire

inflames.

In holding the Virginia cross-burning statute

void, the Supreme Court of Virginia rejected every

argument advanced by the Commonwealth in defense

of the law. The Supreme Court of Virginia rebuffed the

Commonwealth’s claim that the statute was content-

neutral because it applied to any person who burned a

cross for the purpose of intimidation, and was not

limited to any particular group (such as the Ku Klux

Klan) or to any specific message (such as racism or

anti-Semitism.). In rejecting the Commonwealth's

claim, the Court noted that the law had its origins in

concern over the activity of the Klan, including a series

of cross-burning incidents by the Klan in the early

1950s. Black v. Commonwealth, App. 11-12 (“While not

specifically stating that ‘race, color, creed, religion or

gender’ is the subject of the proscription, the absence of

such language in the Virginia statute does not mask the

motivating purpose behind the statutory prohibition of

cross-burning.”) The Commonwealth, the Court noted,

had relied on this history of cross-burning, and the

relationship between these cross-burnings and racial

intimidation and violence, as a justification for the

legislative judgment that cross-burning is an especially

potent and dangerous mode of intimidation. Id., App.

14. The Commonwealth’s submission that society’s

historical experience with cross-burning justified

singling the practice out for special treatment,

however, was in tension with its claim that the law was

content-neutral. This tension was picked up by the

Supreme Court of Virginia, which succinctly observed

that “[t]he Commonwealth cannot have it both ways.”

Id., App. 14.

The Court held that Virginia’s cross-burning law

could not be sustained merely because it was limited to

acts of intentional intimidation. While the

Commonwealth could certainly attack bigotry and

violence through neutral laws dealing with threats,

intimidation, or fighting words, it could not resort to

the short cut of attacking only the content of symbolic

expression. Id., App. 11-14. See also Watts v. United

States, 394 U.S. 705 (1969) (interpreting the “true threat”

First Amendment doctrine.) The Court held that the

“secondary effects” doctrine could not be invoked to

sustain the law, because the law was not a neutral

statute targeting harms unrelated to the content of the

message conveyed by cross-burning, but rather was a

Statute in which the targeted harm--intimidation--arose

entirely from the communicative impact of burning a

cross. Id. App. 16.

Lastly, the Court properly held, the

constitutional infirmities of the law were exacerbated

by the statute’s prima facie evidence provision. The

mere burning of a cross, with no other extrinsic

evidence of an intent to intimidate, is enough to subject

a speaker to arrest, prosecution, and conviction under

the statute. Although the state bears the ultimate

burden of proving an intent to intimidate, the fact

remains that the burning of a cross by itself creates a

statutory presumption, albeit rebuttable, of such intent.

This regime chills expression, the Court correctly held,

sweeping within its ambit both protected and

unprotected speech, and as such was

unconstitutionally overbroad. Id. App. 16-17.

C. Not All the Lower Court Decisions Cited by

the Commonwealth to Support Its Claim of

Conflict Are in Fact in Direct Conflict with the

Opinion of the Supreme Court of Virginia

Below

The Respondents do not dispute the claim

advanced by the Commonwealth of Virginia or its

supporting amici, the states of Arizona, California,

Georgia, Kansas, Massachusetts, Missouri, Oklahoma,

Utah, and Washington, that conflict exists in the

decisional law of various lower courts in prosecutions

involving defendants who engaged in cross-burning.

Nor do respondents dispute the philosophical intensity

or social significance of the conflict. The line that

separates violent and hateful rhetoric from violent and

hateful criminal conduct is central to our constitutional

democracy, especially in times permeated with racial

and religious tension and a heightened national

sensitivity to the horrors of terrorism. Respondents do,

however, dispute the claimed breadth of the conflict in

the decisional law.

The Commonwealth maintains that decisions in

three sister states, South Carolina, Maryland, and New

Jersey, are consistent with the ruling of Supreme Court

of Virginia below in Black v. Commonwealth.*

Respondents agree.

The Commonwealth maintains that decisions in

three other sister states, Florida, California, and

Washington, as well as decisions in two federal

circuits, the Seventh Circuit and the Eighth Circuit, are

in conflict with the ruling of Supreme Court of

Virginia. Respondents disagree.

Decisions in two states, Florida and California,

are indeed in irreconcilable conflict with the decision in

Virginia. The decision of the Supreme Court of

Washington, however, does not pose a bona fide

conflict. The decisions of the United States Court of

Appeals for the Seventh and Eighth Circuits can

arguably be reconciled with at least the holding of the

Supreme Court of Virginia below. Respondents do

concede that some of the more far-reaching language

and rationales of those federal decisions are at least in

tension with the rationales advanced by the Supreme

Court of Virginia.

‘See State v. Ramsey, 430 S.E.2d 511 (SC. 1993)

(overturning cross-burning conviction on the authority of R.A.V.);

State v. Sheldon, 629 A.2d 753 (1993) (same); State 0. Vawter, 642

A.2d 349 (NJ. 1994) (same). Respondents agree with the

Commonwealth that these decisions are consistent with the

decision of the Supreme Court of Virginia below.

1. Florida

The conflict between the decision below and the

decision of the Florida Supreme Court in State v. T.B.D.,

656 So.2d 479 (Fla. 1995), cert. denied, 516 U.S. 1145

(1996), is direct and irreconcilable. In T.B.D., a minor

was charged with erecting a flaming cross on the

property of Atef Abdul-Nour in violation of Florida's

anti-cross-burning law, part of a Florida criminal code

Chapter entitled “Criminal Anarchy, Treason, and

Other Crimes Against Public Order.” Chapter 876, Fla.

Stat. (1993).° The Florida statute singled out for

punishment one particular communicative mode and

message, the burning of a cross, but was not otherwise

tied to the identity of either speakers or recipients, or

the motivation of the cross-burner. The defendant in

T.B.D. argued that this Court’s decision in R.A.V.

rendered the Florida statute unconstitutional on its

face, because it was tainted by content-discrimination

in the same sense as the ordinance struck down by this

Court in R.A.V. The Florida Supreme Court disagreed,

5 The statute at issue in T.B.D., section 876.18, Fla. Stat.

(1993) read in pertinent part:

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 first degree .. ..

distinguishing R.A.V. The core of the Florida Supreme

Court’s analysis was that the content and viewpoint

discrimination found unconstitutional in R.A.V. inured

not in the fact that the ordinance mentioned specific

symbols, such as swastikas or crosses, but rather in the

fact that the ordinance “played favorites,” by treating

certain viewpoints within the marketplace of ideas less

favorably than others:

The United States Supreme Court held

the ordinance invalid because it played

favorites: Rather than proscribing certain

types of “fighting words” across the

board, the ordinance prohibited such

words only in special cases, i.e., only

where the words may offend due to

“race, color, creed, religion or gender.”

“Such a restriction would open the door

to government favoritism and

protectionism of certain topics and view-

points and implicit censorship of

disfavored ones. .. .”

State v. T.B.D., 656 So.2d at 481, quoting St. Paul,

Minn.Legis.Code §§ 292.02 (1990), and State v. Stalder,

630 So.2d 1072, 1075 (Fla.1994). The Florida Supreme

Court reasoned that the Florida statute was consistent

with R.A.V. “because the Florida prohibition is ‘not

limited to [any] favored topics,’ but rather cuts across

the board evenly.” 656 So.2d at 481. In the view of the

Florida Supreme Court, it was enough to satisfy First

Amendment requirements that no mention was made

in the Florida law of “any special topic such as race,

color, creed, religion or gender.” Id. While the law did

single out cross-burning, the Florida Supreme Court,

like the dissenters in the Virginia Supreme Court

below, appeared to see this not as content or viewpoint

discrimination, but rather as a “targeted activity” that

was “proscribed because it is one of the most virulent

forms of ‘threats of violence’ and ‘fighting words’ and

has a tremendous propensity to produce terror and

violence.” Id. See also Black v. Commonwealth,

Hassell, J., dissenting (“[TJhe purpose of the Virginia

statute . . .is not to suppress repugnant ideas, but rather

to proscribe physical acts intended to inflict bodily

harm upon the victims of such acts.”).

Justice Overton, the lone dissenter in the Florida

Supreme Court, saw the matter differently, writing that

“[w]Jhile I would personally prefer to uphold the

constitutionality of this statute and to prohibit through

this statute the type of conduct at issue, I find that the

United States Supreme Court's decision in R.A.V. v.

City of St. Paul eliminates any choice that I have in this

matter. State v. T.B.D., 656 So.2d at 482 (Overton, J.,

dissenting)(internal citation omitted).

2. California

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

1994), review denied, 1994 Cal. LEXIS 5185 (Cal. 1994) a

California intermediate appellate court sustained the

constitutionality of California’s cross-burning law.® See

The California statute, § 11411 of the California Penal Code,

read in pertinent part:

(a) Any person who places or displays a sign, mark, symbol,

emblem, or other physical impression, including, but not

limited to, a Nazi swastika 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 by imprisonment in

the county jail not to exceed one year, by a fine not to exceed

five thousand dollars ($5,000), or by both the fine and

imprisonment for the first conviction and by imprisonment

in the county jail not to exceed one year, by a fine not to

exceed fifteen thousand dollars ($15,000), or by both the fine

and imprisonment for any subsequent conviction.

(b) Any person who engages in a pattern of conduct for the

purpose of terrorizing the owner or occupant of private

property or in reckless disregard of terrorizing the owner or

occupant of that private property, by placing or displaying a

sign, mark, symbol, emblem, or other physical impression,

including, but not limited to, a Nazi swastika, on the private

property of another on two or more occasions, shall be

punished by imprisonment in the state prison for 16 months

or 2 or 3 years, by a fine not to exceed ten thousand dollars

($10,000), or by both the fine and imprisonment, or by

iinprisonment in a county jail not to exceed one year, by a

fie not to exceed five thousand dollars ($5,000), or by both

the fine and imprisonment. A violation of this subdivision

shall not constitute felonious conduct for purposes of Section

186.22.

also People v. Carr, 97 Cal.Rptr.2d 143 (Cal. App. 2000)

(applying California’s cross-burning law to sustain a

conviction for cross-burning).

The ruling of the California intermediate

appellate court in In re Steven S. does conflict, at least in

substantial part, with the decision below of the

Supreme Court of Virginia. Unlike the Virginia statute,

the California statute required that the act of cross-

burning take place, unauthorized, on the property of

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,

or who burns, desecrates, or destroys a cross or other

religious symbol, knowing it to be a religious symbol, on

the property of a primary school, junior high school, or

high school for the purpose of terrorizing any person who

attends or works at the school or who is otherwise

associated with the school, shall be punished by

imprisonment in the state prison for 16 months or 2 or 3

years, by a fine of not more than ten thousand dollars

($10,000), or by both the fine and imprisonment, or by

imprisonment in a county jail not to exceed one year, by a

fine not to exceed five thousand dollars ($5,000), or by

both the fine and imprisonment for the first conviction

and by imprisonment in the state prison for 16 months or

2 or 3 years, by a fine of not more than ten thousand

dollars ($10,000), or by both the fine and imprisonment, or

by imprisonment in a county jail not to exceed one year,

by a fine not to exceed fifteen thousand dollars ($15,000),

or by both the fine and imprisonment for any subsequent

conviction.

(d) As used in this section, “terrorize” means to cause a

person of ordinary emotions and sensibilities to fear for

personal safety.

another.” Nevertheless, at its heart the California

ruling embraced a view later advanced by the

Commonwealth of Virginia but rejected by the Court

below, that an intimidation statute that singles out

cross-burning for special prohibition is not content or

viewpoint discrimination within the meaning of R.A.V.

The California court took the position that burning a

cross on the property of another inherently causes

terror and intimidation, and thus constitutes

unprotected conduct under both the “true threat” and

“fighting words” doctrines. In re Steven S., 31

Cal.Rptr.2d at 647. (“But an unauthorized cross burning

on another person's property, which we shall call

‘malicious’ cross burning for shorthand purposes. .

‘does more than convey a message. It inflicts

immediate injury by subjecting the victim to fear and

intimidation, and it conveys a threat of future physical

harm.”). “he California court reasoned that the “true

threat” doctrine removes from First Amendment

protection threats of violence in which a reasonable

person would foresee that the threat would be

interpreted as a serious expression of intention to

inflict bodily harm. Id. citing Watts v. United States 394

U.S. 705, 707-708 (1969); United States v. Orozco-Santillan

903 F.2d 1262, 1265-1266 (9 Cir. 1990). Similarly, the

California court understood the “fighting words”

doctrine as permitting punishment for statements

“which by their very utterance inflict injury or tend to

Thus the California statute would have reached the

conduct of Respondents Elliott and O’Mara in the case at bar, who

burned a cross without authorization on the property of another,

but not the conduct of Respondent Black, who burned a cross on

the property of another with the permission of that property

owner.

incite an immediate breach of the peace.’” In re Steven

S., 31 Cal.Rptr.2d at 647, quoting Chaplinsky v. New

Hampshire 315 U.S. 568, 572 (1942).

The California court conceded that both the true

threat and fighting words doctrines were limited by the

rule announced by this Court in R.A.V. Nevertheless,

the California court interpreted R.A.V. as not barring

content discrimination if a law falls within one or more

of the “exceptions” noted in R.A.V. As previously

noted in this Brief these three purported exceptions

involve (1) forms of content discrimination in which

the basis for the content discrimination consists of the

very reason the entire class of speech at issue is

proscribable; (2) content-based discrimination against a

subclass associated with particular “secondary effects”

of the speech, and (3) situations where the nature of the

content discrimination is such that there is no realistic

possibility that suppression of ideas is afoot. In re

Steven S., 31 Cal.Rptr.2d at 651. Applying these

exceptions, the California court ruled that although the

California statute singled out cross-burning for

singular proscription, it was still constitutional,

because it fell within all three R.A.V. exceptions. The

California statute did not reach mere obnoxious

speech, but speech that was actually “threatening,”

which was enough, in the court’s view, to satisfy the

first R.A.V. exception. Because the law was targeted at

intimidation and threats, the court further reasoned, it

was also justifiable under the “secondary effects”

concept. Finally, the court held, there was no realistic

possibility that suppression of unpopular ideas was

implicated by the California statute. Rather, the court

reasoned, the purpose of the law was to penalize “an

act of terrorism that inflicts pain on its victim.” Id.

California, consistent with the arguments

advanced by the Commonwealth of Virginia, thus

appears to embrace the position that cross-burning

laws do not offend the Constitution when enacted from

the altruistic motive of attacking terror and racial

bigotry. As a more recent California intermediate

appellate decision would candidly state, relying on In

re Steven S., the “the statue was designed to curtail

expressive conduct which conveys the message of

racial hatred.” People v. Carr, 97 Cal.Rptr.2d at 147.

This reasoning is entirely at odds with the

holding and rationale of the Supreme Court of Virginia

in Black v. Commonwealth. Respondents submit that it is

also at odds with this Court's ruling in R.A.V. It

trivializes the import of this Court's ruling in R.A.V. to

reduce it to a sterile rule with three loopholes so elastic

that they utterly undermine the integrity of the rule.

The stern ban on content and viewpoint discrimination

announced in R.A.V. cannot be avoided by the simple

expedient of tying that discrimination to some other

independently proscribable form of expression, such as

threats, intimidation, incitement, or fighting words. In

R.A.V. itself, the Minnesota Supreme Court attempted

to save the hate speech law at issue through a

narrowing construction that purported to limit

application of the ‘aw to situations in which the speech

was directed to the incitement of imminent lawless

action and likely to produce such action - the

incitement standard, in short, of Brandenburg v. Ohio,

395 U.S. 444 (1969). Yet this Court held that even if the

law were otherwise valid as an incitement or a fighting

words law, it would still be unconstitutional, because it

was infected with viewpoint discrimination. R.A.V.,

505 U.S. at 390-96. As this Court emphasized in R.A.V.,

a state has ample viewpoint-neutral methods of

vindicating the governmental interests at stake. See id.

at 395-96. There is no valid governmental interest

underlying cross-burning statutes that cannot be

vindicated through content-neutral criminal statutes.

Laws of general applicability, proscribing palpable

conduct that incites or threatens physical harm, do not

violate the First Amendment. Beyond that, ..der this

Court’s ruling in Wisconsin v. Mitchell, 508 U.S. 476

(1993), hate crime laws, singling out for special

punishment conduct undertaken out of biased

motivation, are also constitutional. The legislative

objectives that animate the enactment of cross-burning

Statutes may be achieved without throwing the First

Amendment into the fire. See Texas v. Johnson, 491 U.S.

397, 418 (1989).

3. Washington

Contrary to the argument advanced in Virginia's

Petition for Certiorari, the decision of the Supreme

Court of Washington in State v. Talley, 858 P.2d 817

(Wash. 1993) is not in genuine conflict with the

decision of the Supreme Court of Virginia. In Talley the

Supreme Court of Washington interpreted and applied

a relatively complex Washington statute that contained

elements of classic “hate crimes” legislation, such as

provisions enhancing the penalty for otherwise

punishable crimes committed out of biased

motivations, as well as elements of classic hate speech

laws, such as proscriptions on the certain symbolic

expression, such as cross-burning.’ Much like the case

at bar, Talley was a consolidated appeal arising from

two different cross-burning incidents. One involved a

*The Washington statute, RCW 9A.36.080, read:

(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:

(a) Causes physical injury to another person; or

(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, (ii) painting,

drawing, or depicting symbols or words on the property of

the victim when the symbols or words historically or

traditionally connote hatred or threats toward the victim, or

(iii) written or oral communication designed to intimidate or

harass 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. 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

ing 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

of another person.

(2) The following constitute per se violations of this section:

(a) Cross burning; or

(b) Defacement of the property of the victim or a third person with

symbols or words when the symbols or words historically or

traditionally connote hatred or threai: toward the victim.

(3) Malicious harassment is a class C felony.

white person’s burning of a cross in his own front yard

to intimidate and discourage a mixed-race family from

moving in next door. A second involved a cross

burned by a group of teenagers in the yard of an

African American family, apparently motivated by

racial ill will toward a member of that family, who was

a fellow student at their high school.

The Washington statute at issue in Talley was

principally a content-neutral law targeting “malicious

harassment” in which the victim was selected on the

basis of the victim’s “race, color, religion, ancestry,

national origin, or mental, physical, or sensory

handicap.” RCW 9A.36.080 (1). To violate the statute

the perpetrator had.to either inflict physical injury on

the victim, damage another’s property, or (by words or

conduct) place the victim in reasonable fear of harm to

his person or property or harm to the person or

property of a third person. RCW 9A.36.080(1)(a)-(c).

The statute described as examples words or conduct

that included, but were not limited to:

(i) cross burning, (ii) painting, drawing,

or depicting symbols or words on the

property of the victim when the symbols

or words historically or traditionally

connote hatred or threats toward the

victim, or (iii) written or oral

communication designed to intimidate or

harass 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.

RCW 9A.36.080(1)(b).

Two other provisions of the Washington statute

seemed to cut in somewhat different directions. The

statute contained a caveat plainly aimed at protecting

freedom of expression, stating that “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.” Id. On the other

hand, the statue also contained two per se violz ‘ions,

one of which was “[c]ross burning,” and the other of

which was “[dJefacement of the property of the victim

or a third person with symbols or words when the

symbols or words historically or traditionally connote

hatred or threats toward the victim.” RCW

9A.36.080(1)(2). ;

The Supreme Court of Washington viewed the

state statute as divisible into two conceptually distinct

components. Section (1) of the law, in the court's view,

was a content-neutral hate crimes law. Section (1) dealt

with victim selection and with the perpetrator’s biased

motivation. While the law did use as examples of

prohibited conduct the use of cross-burning and other

traditional hate symbols, the perpetrator’s use of these

forms of expression did not per se constitute violations

of the law, but instead were merely evidence of the

perpetrator’s biased victim selection or biased intent.

The Supreme Court of Washington thus upheld Section

(1) of the Washington statute, and in doing so

anticipated this Court’s own subsequent ruling in

Wisconsin v. Mitchell, in which this Court made clear

that pure hate-crime laws, which are calibrated to the

motivation of the actor, and which use hate speech

merely in an evidentiary sense to establish that biased

motivation, are constitutional. Wisconsin v. Mitchell,

508 U.S. at 488.

This aspect of the Talley decision does not

conflict with the ruling below of the Supreme Court of

Virginia, for nothing in the opinion below would

preclude Virginia from enacting or enforcing a content-

neutral “hate crime” law similar to that of

Washington’s, in which specific expressive symbols as

such are not targeted for proscription.

The second aspect of the Talley decision dealt

with Section (2) of the Washington statute, which made

certain expressive conduct, such as cross-burning or

symbols historically used to connote hatred, per se

violations of the law. The Supreme Court of

Washington did not uphold this element of the law, but

instead struck down this part of the Washington

statute, holding that it was a violation of the First

Amendment principles established in R.A.V. Virginia

in is Petition for Certiorari seeks to distinguish the

Virginia statute from the Washington statute on the

grounds that the presumption contained in the Virginia

law making cross-burning prima facie evidence of an

intent to intimidate is merely permissive, whereas

cross-burning was rendered a per se violation of the

Washington statute. This does articulate a difference

between the two laws, but it does not place these two

decisions in conflict. The most that can be said is that

the Supreme Court of Virginia went beyond what the

Supreme Court of Washington held in extending its

understanding of the First Amendment prohibition to

include even a permissive inference drawn from cross-

burning. A ruling extending a principle adopted in

another jurisdiction does not create a conflict with the

law of that jurisdiction. The Supreme Court of

Washington did, of course, sustain Section (1) of the

Washington statute, which did list cross-burning as

among the examples of conduct that could be deemed

“malicious harassment” undertaken out of a biased

motivation. In doing so, however, the state of

Washington was not sustaining a “permissive

inference” similar to that contained in the Virginia

statute, and the Talley ruling on this point does not

conflict with the decision of the Supreme Court of

Virginia in Black v. Commonwealth holding the prima

facie evidence provision of the Virginia statute

unconstitutional. The Washington Supreme Court

made it clear that the ne~.-exhaustive examples listed in

the Washington statute, which included cross-burning,

merely involved the evidentiary use of speech to

establish biased intent. There is a fundamental

difference between the evidentiary use of hate speech

to establish the bias motivation requirement for a hate

crime, and the creation of a statutory presumption-

rebuttable or non-rebuttable-that certain symbols are

inherently criminal. See Wisconsin v. Mitchell, 508 U.S. at

488 (“The First Amendment, moreover, does not

prohibit the evidentiary use of speech to establish the

elements of a crime or to prove motive or intent.”).

4. The Federal Courts of Appeal

Neither federal circuit decision relied upon by

the Commonwealth poses a direct conflict with the

holding below. The language and rationales of those

decisions, however, are at least somewhat in tension

with the underlying rationales advanced by the

Supreme Court of Virginia. The United States Court of

Appeals for the Eighth Circuit, in United States v.

J.H.H., 22 F.3d 821 (8 Cir. 1994), sustained a

prosecution under federal laws arising from the same

cross-burning incident that was the subject of this

Court’s holding in RA.V. The Eighth Circuit

distinguished R.A.V. because the federal statutes under

which the prosecutions were brought, 18 U.S.C. § 241

and 42 U.S.C. § 3631," were both content-neutral laws

718 U.S.C. § 241 provides:

If two or more persons conspire to injure, oppress,

threaten, or intimidate any inhabitant of any State,

Territory, or District in the free exercise or enjoyment of

any right or privilege secured to him by the Constitution

or laws of the United States, or because of his having so

exercised the same, ... [they shall be guilty of an offense

against the United States].

1042 U.S.C. § 3631 provides:

Whoever . . . by force or threat of force willfully injuries

[sic], intimidates or interferes with, or attempts to injure,

intimidate or interfere 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).

that made no mention of cross-burning or any other

form of expressive activity. Cross-burning was the

method used by the defendants to engage in

intimidation, but the statute under which the

defendants were charged was neutral:

The government points out that 18 U.S.C.

§§ 241 and 42 U.S.C. §§ 3631 are not

directed toward protected speech, but are

directed only at intentional threats,

intimidation, and interference with

federally guaranteed rights. The

government further emphasizes that the

statutes punish any threat or intimidation,

or conspiracy to threaten or to intimidate,

violating the statutes regardless of the

viewpoint guiding the action. This, the

government contends, distinguishes

prosecution under these statutes from

prosecution pursuant to the St. Paul

ordinance invalidated in R.A.V. We agree.

].H.H., 22 F.3d at 825.

So too, in United States v. Hayward, 6 F.33d 1241

(7 Cir. 1993), the United State Court of Appeals for the

Seventh Circuit upheld a cross-burning conviction

under 42 U.S.C. § 3631, again on the ground that the

statute (which is part of the Fair Housing Act, 42 U.S.

C. §§ 3601-3631), was content-neutral. The Seventh

Circuit in Hayward did discuss the indisputable reality

that cross-burning is conduct imbued with well-

recognized symbolic meaning in the United States.

Thus the Seventh Circuit explained:

In this case, the 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. Anyone who saw the burning

crosses, especially those in the Jones

household, was highly likely to

understand their meaning. Indeed, a

burning cross may provide different

connotations to different people. . . . 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

protection.

Hayward, 6 F.3d at 1249-1250. In this quoted passage

from Hayward, as well as in other passing observations

contained in that opinion, there are suggestions that

symbolic expression resulting in “oppression” or

“psychological injury” (vaguely defined) might suffice,

in the judgment of the Seventh Circuit, to remove that

symbolic expression from the protections of the First

Amendment. Moreover, it is not clear that the federal

statute interpreted in Hayward, or the Seventh Circuit’s

interpretation of that statute, would comport with a

sound interpretation of Brandenburg v. Ohio, 395 US.

444 (1969). Because the Supreme Court of Virginia

held the Virginia cross-burning law void on its face

under the rationale of R.A.V., the Court did not reach

the various Brandenberg claims advanced by Elliott,

O’Mara, and Black below. It should be emphasized,

however, that nothing in the opinion of the Supreme

Court of Virginia prevents the state from adopting and

enforcing a content-neutral prohibition against hate

crime, provided it meets the requirements of

Brandenburg, and to the extend the decisions of the

Eighth Circuit and Seventh Circuit understood the

federal statutes before them to be content-neutral, there

is no direct conflict between those decisions and the

decision of the Supreme Court of Virginia below.

CONCLUSION

Under our First Amendment, it is not the action

of a defendant who burns a cross that most matters,

but the wording of the act under which the defendant

is charged. A person who burns a cross to threaten or

intimidate another may be convicted under a properly

drawn statute, a statute that does not target expression.

When cross-burning is used as a vehicle to express

threats or intimidation, it is not constitutionally

protected, provided that the law under which it is

prosecuted is not unconstitutionally infected.

The decision of the Supreme Court of Virginia

below was sound. The court conscientiously applied

core First Amendment principles in unpalatable

circumstances. The conflicting decisions of other

jurisdictions, candidly discussed in this Brief, fail to

give full resonance to the First Amendment's sweeping

command forbidding the abridgement of freedom of

To the extent that the Supreme Court of

Virginia’s interpretation of that ringing command

differs from some (though not all) of the decisions of

other jurisdictions, those courts, and not the Supreme

Court of Virginia, are the tribunals in error.

Respectfully submitted,

Rodney A. Smolla :