# Opposition Brief — Virginia v. Black

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 343

## Text

Ay
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

a Oar Se cscenerenccnsenenctntenssenssensmnnsnemnemscssstsemenmninanees 26, 27
oe Ge Fh certenesnasccsesesesncsnensnsnsnsssneneensenmetmnmntncnmannsssines 27
ee Gs a ctetecrstcncncnctestemnenesntinnainntanimnenemnannes 27
ie ie cccenrseneiccrinscscntsstcrnstieertemmanneiconmene 26, 27
State Statutory Provisions

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8) I 16
I Rn a cniericsiesinnentinsinninacetsanenetiinenatedenengtentninenetumatannainees 12
ee DE icrcnisenetineectinsiuninseiinenanininnenecuataceiamemammseies 21, 22
| ae ae 21
See a cndesencescnsenunssasensessmnensecsasensesstuniniunstemanesente 21
ee See snccnnuiiininincecineennniagneintsementzcanitnameneeanines 23
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ETT SL EEE 22

iv

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.

A.

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.

10

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]

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 .. ..

12

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

13

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).

14

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.

15

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

(c) 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,
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.

16

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.

17

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.

18

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.,

19

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
(c) Causes physical damage to or destruction of the property
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.

21

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-

24

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).

26

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:

27

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.

28

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

29

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 :
T.C. Williams School of Law
University of Richmond
Richmond, Virginia 23173
(804) 289-8197

(804) 287-1819 (fax)

Counsel of Record

David P. Baugh
Sara G. Davis

233 South Cherry Street
Richmond, Virginia 23241

Rebecca K. Glenberg

Legal Director, American Civil Liberties Union of
Virginia

6 North Sixth Street

Suite 400

Richmond, Virginia 23219

Kevin E. Martingayle
Stallings & Richardson, P.C.
2101 Parks Avenue, Suite 801
Virginia Beach, Virginia 23451

James O. Broccoletti
Zoby & Broccoletti, P.C.
6663 Stoney Point South
Norfolk, Virginia 23520

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A03. Public record. Not legal advice.