Amicus Curiae Brief — Virginia v. Black

VUPprToNS UVUIL, U.Oe

FitiEeED

(2) FEB 28 2002

No. 01-1107

In The

Supreme Court of the United States

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COMMONWEALTH OF VIRGINIA,

Petitioner,

BARRY ELTON BLACK, RICHARD J. ELLIOTT,

AND JONATHON O’MARA,

Respondents.

+

On Petition For Writ Of Certiorari

To The Supreme Court Of Virginia

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BRIEF OF ARIZONA, CALIFORNIA, GEORGIA,

KANSAS, MASSACHUSETTS, MISSOURI,

OKLAHOMA, UTAH, AND WASHINGTON AS

AMICI CURIAE IN SUPPORT OF PETITIONER

¢

JANET NAPOLITANO

Attorney General of Arizona

Patrick IRvINE*

Solicitor General

Topp F. LANG

Assistant Attorney General

1275 West Washington Street

Phoenix, Arizona 85007

(602) 542-8384

[Additional Counsel Listed On Inside Cover]

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., 225-6964

OR CALL COLLECT (402) 342-283 F

Birt Lockyer

Attorney General

State of California

Department of Justice

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

(916) 445-9555

THurBerT E. BAKER

Attorney General of Georgia

40 Capitol Square S.W.

Atlanta, GA 30334-1300

(404) 656-4585

Caria J. STOVALL

Attorney General of Kansas

Judicial Building

301 S.W. 10th Avenue

Topeka, KS 66612-1597

(785) 296-2215

THomas F. Rertty

Attorney General of Massachusetts

One Ashburton Place

Boston, MA 02108-1598

(617) 727-2200

JEREMIAH W. (Jay) Nixon

Attorney General of Missouri

Supreme Court Building 7

207 West High Street

Jefferson City, MO 65101

(573) 751-3321

W. A. Drew EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Boulevard, Suite 112

Oklahoma City, OK 73105-4894

(405) 521-3921

Mark L. SHURTLEFF

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

(801) 538-9600

CurisTINE O. GREGOIRE

Attorney General of Washington

1125 Washington Street

P.O. Box 40100

Olympia, WA 98504-0100

(360) 753-6200

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...............-eeeeeeees ii

INTEREST OF AMICI CURIAE............00000e00s 1

REASONS FOR GRANTING THE PETITION ....... 1

I. States Have Compelling Interests in Addressing

the Real Problems Arising From Bias-Motivated

| PPPPTTTTTTTET TTT TTT TT LE 2

II. Prohibiting Cross Burning With the Intent to

Intimidate Any Person Does Not Violate the First

PEE 3. ccc ccccececccccsevscevevccsccsceve 5

GPOMEITE cc ccvcvcccsccececceveccescoonccecoss 10

ii

TABLE OF AUTHORITIES

Page

Cases

Apprendi v. New Jersey, 530 U.S. 466 (2000)........... 6

Black v. Commonwealth, 553 S.E.2d 738 (Va. 2001) ..... 6

Chaplinsky v. New Hampshire, 314 U.S. 568 (1942) ..... 9

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

CORDED cc ccccdeccesedavessesedecastkauauneea 6, 8, 9

Roberts v. United States Jaycees, 468 U.S. 609 (1984)..... 4

State v. T.B.D., 656 So.2d 479 (Fla. 1995).............. 7

United States v. O’Brien, 391 U.S. 367 (1968)........ 6, 9

Wisconsin v. Mitchell, 508 U.S. 476 (1993)...... 4,5, 7,8

CONSTITUTIONS

CE CUR GMGE. Bic cccccccccvessvecceseutucusuenn 1

FEDERAL STATUTES AND RULES

Pub.L. No. 101-275, 104 Stat. 140..................05. 3

Pub.L. No. 103-322, 108 Stat. 1796..................4. 4

3c 5 Se Ree > sannetetidedesaneeaeeeanee 1

STATE STATUTES .

Arizona Revised Statutes Annotated § 13-1202........ 6

California Penal Code § 11411..................0008. 2

Connecticut General Statutes § 46a-58................ 2

eee Gee BD © Gs occscncvéncosssdcksacteiere 2

District of Columbia Code § 22-3312.02 ............. 2

iii

TABLE OF AUTHORITIES - Continued

Page

i sv ccccccccccccoeccecccccecces 2

Florida Statutes § 876.18 ......... 6.6. cceeeeeeeeeeeees 2

Official Code of Georgia § 16-11-37...............45. 2

TE PE cecceescccesccccccccccccccccece 2

Montana Code Annotated § 45-5-221..............55: 3

North Carolina General Statutes § 14-12.12........... 3

South Carolina Code Annotated § 16-7-120........... 3

South Dakota Codified Laws § 22-19B-2.............. 3

Vermont Statutes Annotated 13 § 1456............... 3

Virginia Code § 18.2-423......... 0.5 c cece eee eeeees 3

Revised Code of Washington § 9A.36.080............. 3

OTHER AUTHORITIES

Federal Bureau of Investigation, Hate Crime Statis-

tics, 1998, at 9, Table 3 (http://www.fbi.gov/

SF PIGs occ cccscccccccccsccccccccccccccces 4

Lu-in Wang, Hate Crimes Law (1999).............6005. 2

Luddington, Annotation, Validity and Construction

Re ccticececcrsracccocessscees...01

INTEREST OF AMICI CURIAE

The Supreme Court of Virginia in this case held that

Virginia’s statute making it a criminal offense to burn a

cross with the intent to intimidate any person violates the

First Amendment of the United States Constitution. The

decision squarely conflicts with decisions of the courts of

other states. It is in the states’ interests that this conflict

be resolved by this Court so that state policymakers who

have acted, or may in the future wish to act, to ban

intimidating, threatening and terrorizing conduct using

symbols, such as burning crosses, may know whether

such efforts are constitutionally permissible.

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REASONS FOR GRANTING THE PETITION

The Petition correctly points out the conflict between

the decision of the Supreme Court of Virginia and deci-

sions by courts in Florida, Washington and California,

and the conflict with the Seventh and Eighth Circuits.

Petition at 14-20, 23-25. In considering whether a writ of

certiorari shall be granted, this Court has indicated that

an important consideration will be that “a state court of

last resort has decided an important federal question in a

way that conflicts with the decision of another state court

of last resort or of a United States court of appeals.” See

Sup. Cr. R. 10(b). State and federal courts are divided over

the constitutionality of statutes prohibiting cross burning

with the intent to intimidate or terrorize any persons. For

the following reasons, Amici are affected by this division

and believe the Petition should be granted.

Il. STATES HAVE COMPELLING INTERESTS IN

ADDRESSING THE REAL PROBLEMS ARISING

FROM BIAS-MOTIVATED INTIMIDATION.

Numerous states have laws prohibiting threats,

intimidation and terroristic acts.! At least fourteen

states have statutes expressly referring to criminal acts

involving cross burning.? These statutes reflect the strong

1 See generally Lu-in Wang, Hate Crimes Law (1999);

Luddington, Annotation, Validity and Construction of Terroristic

Threat Statutes, 45 A.L.R.4th 949 (1986).

2 California Penal Code § 11411 (burning or desecrating a

cross or other religious symbol on the private property of

another without authorization for the purpose of terrorizing the

owner or occupant, or on the property of a primary school,

junior high school or high school or the purpose of terrorizing

any person who attends or works at the school); Connecticut

General Statutes § 46a-58 (placing a burning cross on any public

property, or on any private property without the written

consent of the owner); 11 Delaware Code § 805 (burns any cross

or religious symbol upon any private or public property

without the express written consent of the owner and without a

minimum of 48 hours notice to authorities); District of Columbia

Code § 22-3312.02 (burning cross or other religious symbol on

any private premises or property used for specified purposes by

persons of a particular race, color, creed, or religion, or on any

public property, with the intent to intimidate, threaten, abuse,

or harass any other person); Florida Statutes § 876.17 (placing in

a public place a burning cross); Florida Statutes § 876.18

(placing on the property of another a burning cross without first

obtaining written permission of the owner or occupier of the

premises); Official Code of Georgia Annotated § 16-11-37

(committing offense of terroristic act when using a burning

cross with the intent to terrorize another or another’s

household); Idaho Code § 18-7902 (cross burning included

within definition of defacing property with the intent to

intimidate or harass another person because of that person’s

interests of state and local governments in putting a stop

to a particularly invidious sort of intimidation that go

beyond their general interests in maintaining peace and

order. Expressions of hate and bigotry are protected by

the Constitution, but actions taken to harm, threaten,

intimidate or terrorize others are not equally protected

merely because they are rooted in such hate and bigotry.

Hate crimes are not in decline. In 1990, Congress

enacted the Hate Crime Statistics Act, Pub.L. No. 101-275,

§ 1(b)(1), 104 Stat. 140 (codified at 28 U.S.C. § 534),

directing the Attorney General to compile data “about

crimes that manifest evidence of prejudice based on race,

religion, sexual orientation, or ethnicity.” Pursuant to the

Act, the Federal Bureau of Investigation annually reports

race, color, religion, ancestry, or national origin); Montana Code

Annotated § 45-5-221 (same); North Carolina General Statutes

§ 14-12.12 (placing burning cross on the property of another

without first obtaining written permission, or on a public street

or highway with the intention of intimidating any person or

persons); South Carolina Code Annotated § 16-7-120 (placing a

burning cross in a public place or on the property of another

without first obtaining written permission); South Dakota

Codified Laws § 22-19B-2 (defining crime of defacing to include

cross burning on the property of another without that person’s

permission); 13 Vermont Statutes Annotated § 1456 (burning

cross with the intention of terrorizing or harassing a particular

person or persons); Virginia Code § 18.2-423 (burning cross with

the intent to intimidate); Revised Code of Washington

§ 9A.36.080 (in a prosecution for malicious harassment based on

the victim’s race, color, religion, ancestry, national origin,

gender, sexual orientation, or mental, physical, or sensory

handicap, the burning of a cross on the property of a victim who

is of African American heritage may be basis to infer intent to

threaten victim unless evidence exists which expiains that the

person did not intend such threat).

bias-motivated crimes. Relying on the Bureau's reports,

this Court has previously noted that in 1991 there were

4,558 bias-motivated offenses committed, including 1,614

incidents of intimidation, 1,301 incidents of vandalism,

796 simple assaults, 773 aggravated assaults, and 12 mur-

ders. Wisconsin v. Mitchell, 508 U.S. 476, 483 n.4 (1993).

More recent data is not heartening. The Bureau

reports that in 1998, a total of 7,755° bias-motivated crimi-

nal incidents were reported, including 3,488 incidents of

intimidation, 2,549 incidents of vandalism, 1,706 simple

assaults, 1,084 aggravated assaults, and 13 murders. Fed-

eral Bureau of Investigation, Hate Crime Statistics, 1998, at

9, Table 3 (http://www.fbi.gov/ucr/98hate.pdf). States

cannot be expected to ignore the real problems associated

with these acts of violence and terror.

States recognize that the expression of ideas is prop-

erly protected by the Constitution, whether expressed

verbally or symbolically. There can be little question that

cross burning conveys a message, albeit a message of

intimidation. When a cross is burned with the intent to

intimidate a particular person or group of persons, it

inflicts immediate injury by subjecting the victim to fear

and conveys a threat of future harm. State law should be

allowed to protect the victim of such an act. See Roberts v.

United States Jaycees, 468 U.S. 609, 628 (1984) (“[V]Jiolence

3 The Hate Crime Statistics Act was amended by the Violent

Crime Control and Law Enforcement Act of 1994, Pub. L. No.

103-322, 108 Stat. 1796, to include those crimes motivated by a

bias against persons with disabilities. The 1998 total, however,

includes only 25 disability related crimes, so the 1991 and 1998

data effectively measure the same acts.

\

or other types of potentially expressive activities that

produce special harms distinct from their communicative

impact ... are entitled to no constitutional protection.”).

The decision below casts doubt on the ability of any

state to act to protect its citizens against criminal actions

intended to intimidate and terrorize them. Merely

because the terror and intimidation is effectuated by

using a symbol such as a burning cross does not render it

any less dangerous or pernicious. The Court should grant

certiorari and clarify the proper application of its prece-

dents in this important area.

II]. PROHIBITING CROSS BURNING WITH THE

INTENT TO INTIMIDATE ANY PERSON DOES

NOT VIOLATE THE FIRST AMENDMENT.

This case involves the confluence of several signifi-

cant, and sometimes competing, societal values: the fun-

damental principle that preservation of peace and

prevention of intimidation and terror are necessary to the

——maintenance of the social fabric; and the equally basic

premise that freedom of speech preserves and

strengthens our democratic society. Amici believe that a

statute prohibiting cross burning with the intent to intim-

idate any person or group of persons adequately and

reasonably reconciles these values, and should be upheld.

This Court’s “cases reject the ‘view that an appar-

ently limitless variety of conduct can be labeled “speech”

whenever the person engaging in the conduct intends

thereby to express an idea.’ Thus, a physical assault is not

by any stretch of the imagination expressive conduct

protected by the First Amendment.” Wisconsin v. Mitchell,

508 U.S. at 484, quoting United States v. O’Brien, 391 U.S.

367, 376 (1968) (citations omitted). Intimidating, threaten-

ing and terrorizing are plainly criminal acts that can be

punished.‘ The acts are not entitled to constitutional pro-

tection. Such protection should not be extended merely

because the prohibited act itself might be protected if not

done for the purpose of intimidation or terror.

The Virginia statute does not prohibit cross burning; it

prohibits cross burning with the intent to intimidate. The

lower court failed to consider the statute as a whole, and

essentially applied its constitutional analysis only to the

action itself, ignoring the intent requirement. This Court

has recognized, however, that an intention to intimidate is

a separate element of a crime. See Apprendi v. New Jersey,

530 U.S. 466, 493 (2000) (“The defendant's intent in com-

mitting a crime is perhaps as close as one might hope to

come to a core criminal offense ‘element.’ ”).

States are not prohibited from defining intimidation,

threats and terror in a way that specifies certain symbols

as being particularly susceptible to being used for such

purposes. R.A.V. v. City of St. Paul, Minnesota, 505 U.S.

377, 416 (1992) (Stevens, J. concurring) (“Conduct that

creates special risks or causes special harms may be pro-

hibited by special rules.”). In this case, the Virginia

Supreme Court recognized that burning a circle or a

square would not have the same threatening effect as

burning a cross. Black v. Commonwealth, 553 S.E.2d 738,

745 (Va. 2001). Its conclusion, however, actually encour-

ages statutes that do not fully inform citizens of the harm

4 See, e.g., Ariz. Rev. Stat. § 13-1202.

sought to be prevented. The lower court opinion suggests

it would approve of a statute that prohibits the burning

of a circle, square or other shape with the intent to

intimidate. Such a solution would pass the lower court’s

test, but be of little practical use. State v. T.B.D., 656 So.2d

479, 482 (Fla. 1995) (“While other Florida statutes may

_address unauthorized cross-burnings indirectly, e.g., via

trespassing or disorderly conduct bans, those restrictions

fail to confront the issue head on and to affirmatively

discourage the conduct.”). Moreover, since the burning of

geometric shapes other than crosses occurs rarely, if at all,

it is not clear why a modified statute would be an

improvement. Nor is it clear that such a statute would go

unchallenged since cross burners would still be able to

argue that they are the ones truly targeted by the revised

law. States should be able to address the specific problem

with specific legislation. In this case, cross burning to

express ideas, however obnoxious, is not the problem.

The problem addressed by the state statute is cross burn-

ing when associated with the intent to intimidate.

This Court has recognized that bias-inspired conduct

may be subject to greater penalties than the same crime

without the bias. Wisconsin v. Mitchell, 508 U.S. at 487-488.

Thus, states are allowed to deal with real problems asso-

ciated with bias.

The State’s desire to redress these perceived

harms provides an adequate explanation for its

penalty-enhancement provision over and above

mere disagreement with offenders’ beliefs or

biases. As Blackstone said long ago, “it is but

reasonable that among crimes of different

natures those should be most severely punished,

which are the most destructive of the public

safety and happiness.” 4 W. Blackstone, Com-

mentaries 16.

Id. at 488. Cross burning is an especially virulent, even

unique, form of intimidation in American society. States

should not be required to equate it with lesser forms of

intimidation, such as threatened fisticuffs, merely

because the symbol is also associated with hatred and

bigotry. Similarly, states need not recognize acts plainly

based on bias and hate, such as cross burnings, without

taking steps to prevent their use in the criminal act of

intimidation.

This Court’s decision in R.A.V. v. City of St. Paul,

Minnesota, 505 U.S. 377 (1992) does not require states to

ignore the real law enforcement problems associated with

the use of words and symbols for purposes of intimida-

tion and terror. In R.A.V., this Court observed that pro-

scribable speech, such as “fighting words” can be

regulated. The problem in R.A.V. was that the govern-

ment only proscribed certain fighting words based on

content. Such content-based regulation of even

“unprotected” speech is impermissible. R.A.V., 505 U.S. at

386. Just as this Court noted that “the government may

proscribe libel; but it may not make the further content

discrimination of proscribing only libel critical of the

government,” id. at 384, states may proscribe cross burn-

ing. Under R.A.V., what states may not do is ban cross

burning that targets, for example, only persons of a cer-

tain race or sexual orientation, because such a ban would

distinguish permissible and impermissible cross burnings

based on content. “[NJjon-verbal expressive activity can

be banned because of the action it entails, but not because

of the ideas it expresses.” Id. at 385. Here, the statute

prohibits non-verbal expressive activity —- cross burning -

regardless of the particular viewpoint of the speaker. Just

as “fighting words” can be proscribed under Chaplinsky v.

New Hampshire, 314 U.S. 568 (1942), so too may cross

burning be banned so long as the prohibition is not based

on content or viewpoint. In R.A.V., the ordinance banned

fighting words that provoked violence only on the basis

of race, color, creed, religion, or gender. Only such “dis-

favored subjects” of speech were banned. Id. at 391.

In contrast, the Virginia ordinance bans all cross

burning that is intended to intimidate regardless of the

subject or target. As such, it does not discriminate based

on content. As a historical matter, it may be true that

cross burners have often espoused similar viewpoints.

But, those viewpoints are not elements of the statutory

prohibition and are thus irrelevant for purposes of consti-

tutional analysis. See, e.g., United States v. O'Brien, 391

U.S. 367 (1968) (upholding facially-neutral law prohibit-

ing destruction of draft cards even though, as a factual

matter, most people who destroyed draft cards were pro-

testing the Vietnam War). The lower court should there-

fore be reversed.

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CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

JANET NAPOLITANO

Attorney General of Arizona

Patrick IRvINE*

Solicitor General

Topp F. Lanc

Assistant Attorney General

1275 West Washington Street

Phoenix, Arizona 85007

(602) 542-8384

[Additional Counsel Listed on Inside Cover]

"Counsel of Record

February, 2002