Amicus Curiae Brief — Virginia v. Black

MOTION FILED ®

FEB 2 2 2002 No. 01-1107

IN THE

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner,

VS.

BARRY ELTON BLACK, RICHARD J. ELLIOTT, and

JONATHAN O’ MARA,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Virginia

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

KENT S. SCHEIDEGGER

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@jlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1. Does a statute which prohibits burning a cross with the

intent to intimidate violate the First Amendment?

2. When a state court finds that one paragraph of a state

statute is “overbroad” under federal First Amendment prece-

dents, may that court declare the entire statute void without

considering whether the paragraph is severable?

(i)

IN THE

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner,

vs.

BARRY ELTON BLACK, RICHARD J. ELLIOTT,

and JONATHAN O’ MARA,

Respondents.

MOTION OF AMICUS CURIAE FOR LEAVE

TO FILE BRIEF IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Criminal Justice

Legal Foundation' respectfully moves for leave to file the

accompanying brief amicus curiae in support of the petition in

this case. Counsel for petitioner has consented, but counsel for

respondents have withheld consent.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

1. This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

iv

of the accused into balance with the rights of the victim and of

society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

The decision of the Virginia Supreme Court in the present

case unduly limits the ability of government to protect their

citizens from threats of violence and to focus limited enforce-

ment resources on the most pernicious threats. The court’s

broad interpretation of R. A. V. v. St. Paul appears to limit the

legislature to a choice between not punishing the worst threats

or dispersing its resources by prohibiting all threats and

punishing them equally. Either result would be contrary to the

rights of victims and society which CJLF was formed to

advance. :

February, 2002

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

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R. A. V.’s distinction between permissible and forbidden

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TABLE OF AUTHORITIES

Cases

Black v. Commonwealth, 262 Va. 764,

| § & , aes 2, 6, 7,9

Brandenburg v. Ohio, 395 U. S. 444,

23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969) ........... 6,7

Brockett v. Spokane Arcades, Inc., 472 U. S. 491,

86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985) ............ 8

Chaplinsky v. New Hampshire, 315 U. S. 568,

86 L. Ed. 1031, 62 S. Ct. 766 (1942) ............06.. 6

Leavitt v. Jane L., 518 U. S. 137,

135 L. Ed. 2d 443, 116 S. Ct. 2068 (1996) ........... 9

Massachusetts v. Oakes, 491 U.S. 576,

105 L. Ed. 2d 493, 109 S. Ct. 2633 (1989) ........... 7

O’Mara v. Commonwealth, 33 Va. App. 525,

a a EE ch cccatunesodnnescaneenet 2

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

120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992) ..... 2, 3, 5,6

Rankin v. McPherson, 483 U. S. 378,

97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) ............ 5

Reno v. ACLU, 52) U. S. 844, 138 L. Ed. 2d 874,

og 8 OR Re ere rire 8

United States v. O’Brien, 391 U. S. 367,

20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968) ............. 5

Ward v. Rock Against Racism, 491 U. S. 781,

105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989) ........... 5

Watts v. United States, 394 U. S. 705,

22 L. Ed. 2d 664, 89 S. Ct. 1399 (1969) ............. 6

a a Ne a = —

vii

Wisconsin v. Mitchell, 508 U. S. 476,

124 L. Ed. 2d 436, 113 S. Ct. 2194 (1993) ......... 3,4

United States Constitution

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Statutes

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LENGE EE SING em I a 7

Treatise

4 R. Rotunda & J. Nowak, Treatise on Constitutional Law

rac ce IES i MED pet lg i ae 3

Miscellaneous

W. Wade, The Fiery Cross (1987) ...............0000: 4

———__ ~~—-——___ _—- » __ —-

IN THE

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner,

vs.

BARRY ELTON BLACK, RICHARD J. ELLIOTT, and

JONATHAN O’MARA,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF THE PETITION FOR

WRIT OF CERTIORARI

SUMMARY OF FACTS AND CASE

The present petition involves two separate incidents of cross

burning. The cases were joined and decided together in the

Virginia Supreme Court.

On May 2, 1998, in the City of Virginia Beach, Richard

Elliott, Jonathan O’Mara, and David Targee placed a cross in

the yard of James S. Jubilee and attempted to burn it. Elliott,

who lived next door to Mr. Jubilee, was angry at him because

he had previously complained about Elliott discharging

firearms in his back yard. App. to Pet. for Cert. 2. O’Mara

pleaded guilty to attempted cross burning and conspiracy while

reserving the right to challenge the constitutionality of the

statute on appeal. /d., at 3. Elliott was convicted of the same

offenses after a jury trial. /bid.

The Court of Appeals affirmed both convictions in a

published opinion. The court rejected the First Amendment

challenge. It held that burning a cross with intent to intimidate

is proscribable both as a threat and “fighting words,” and that

the prohibition was not “content discrimination.” O'Mara v.

Commonwealth, 33 Va. App. 525, 536, 535 S. E. 2d 175, 181

(2000), App. to Pet. for Cert. 57.

On August 22, 1998, Barry Black burned a cross during a

Ku Klux Klan rally in Carroll County. The owner of the

property was present and consented. App. to Pet. for Cert. 23

(Hassell, J., dissenting). The burning cross was visible to

neighbors and a public highway and had an intimidating effect

on other people. See id., at 24; Pet. for Cert. 6-7. The Court of

Appeals summarily affirmed Black’s conviction, based on

O’Mara, in an unpublished memorandum. App. to Pet. for

Cert. 46.

The Virginia Supreme Court reversed in both cases, in a 4-3

decision. Black v. Commonwealth, 262 Va. 764, 553 S. E. 2d

738 (2001). The majority believed that the statute was “selec-

tive regulation of speech based upon content” under R. A. V. v.

St. Paul, 505 U. S. 377 (1992). See 262 Va., at 771, 553

S. E. 2d, at 724, App. to Pet. for Cert. 7. The majority also held

that the final paragraph of the statute rendered it “overbroad.”

See 262 Va., at 777-778, 553 S. E. 2d, at 745-746, App. to Pet.

for Cert. 16-17.

SUMMARY OF ARGUMENT

R. A. V. v. St. Paul established that, although a state may

prohibit some categories of speech altogether, even within those

categories its ability to discriminate on the basis of content is

limited. As the post-R. A. V. split of authority over cross-

burning statutes demonstrates, the distinction between permissi-

ble and impermissible content discrimination requires further

definition. The statute at issue in the present case distinguishes

one kind of threat from others because this kind is worse than

S>

i)

others along the same dimension that makes threats proscri-

bable in the first place.

Watts v. United States held that “true threats” may be

proscribed, but it provided little guidance to distinguish “true

threats” from “untrue threats.” Because threats ate an excep-

tionally harmful form of speech, this boundary needs to be

more clearly defined.

The Virginia Supreme Court held that the statute at issue

was fatally overbroad without considering whether the offend-

ing portion was severable. That would be reversible error under

Brockett v. Spokane Arcades, Inc. if done by a federal court.

Certiorari is appropriate to resolve whether Brockett applies to

state courts when they consider federal constitutional attacks on

state statutes.

ARGUMENT

I. R. A. V.’s distinction between permissible and

forbidden “content discrimination” requires clarification.

R. A. V. v. St. Paul, 505 U. S. 377, 382-383 (1992) recog-

nized that freedom of speech is not absolute, and that “our

society . . . has permitted restrictions upon the content of speech

in a few limited areas ... .” Within these categories, the

government may not engage in “conteat discrimination unre-

lated to their distinctively proscribable content.” /d., at 384.

Content discrimination is permitted, though “[w]hen the basis

for the content discrimination consists entirely of the very

reason the entire class of speech at issue is proscribable ... .”

Id., at 388.

R. A. V. was an important decision, see 4 R. Rotunda &

J. Nowak, Treatise on Constitutional Law § 20.39, p. 516 (3d

ed. 1999), and like most important decisions it has generated

new questions and divergent interpretations. In Wisconsin v.

Mitchell, 508 U. S. 476, 482 (1993), the Wisconsin Supreme

Court had interpreted R. A. V. to forbid a “hate crime” enhance-

ment for battery, and it was not alone in that view. See id., at

483, n. 4. This interpretation was erroneous, though, and this

Court unanimously reversed. See id., at 490.

Cross-burning prohibitions which are more narrowly

focused than the St. Paul ordinance have similarly produced

divergent interpretations of R. A. V. The Attorney General has

already demonstrated the deep split of authority on this point.

Pet. for Cert. 14-25. Evidently, more clarification is needed.

Beyond any question, Elliott and O’Mara’s “expressive

conduct” of planting a cross in Mr. Jubilee’s yard and attempt-

ing to burn it is an act the state may prohibit and punish. To

apply R A. V., it is necessary to determine why this expressive

conduct is proscribable and how it differs from permitted

expressive conduct within the same category.

Historically, the burning cross is z threat employed by a

terrorist organization to intimidate people and prevent them

from exercising their civil and constitutional rights. See, e.g.,

W. Wade, The Fiery Cross 279, 328-329 (1987). Such intimi-

dation has long been a federal offense. See 18 U. S. C.

§ 245(b). A similar purpose is apparent in the statute at issue in

the present case. The intent to intimidate is an element of the

offense.

The difficult aspect of the question, and the one requiring

this Court’s attention, is how to apply 2. A. V.’s rule of content

discrimination within a proscribable category. This task

requires an assessment of why this particular kind of threat is

singled out from the universe of threats. This determination is

part of the federal First Amendment analysis to be determined

de novo in this Court, not an aspect of statutory construction, on

which the state court’s decision would be binding. See Mitch-

ell, 508 U. S., at 483-484.

A state may choose to proscribe only a subset of a pro-

scribable category which it perceives to be the worst along the

same dimension that made the category proscribable in the first

place. If Congress decides that threats against the President

—~—. —~--

cause greater harm to the operation of government than threats

against other federal officials, it can prohibit only the former.

See R. A. V., 505 U. S., at 388. This is true even though the

differential treatment is not politically neutral. Those who are

inclined to threaten the President are likely to have different

political views than those who are inclined to threaten the

senior leader of the opposing political party. That disparate

impact does not invalidate the statute under R. A. V. To borrow

a phrase from a closely related area of First Amendment law,

the difference is justified without reference to its impact on

differing viewpoints. Cf. Ward v. Rock Against Racism, 491

U. S. 781, 791 (1989); see also United States v. O'Brien, 391

U. S. 367, 377 (1968) (burning draft card, “governmental

interest is unrelated to the suppression of free expression”).

The present statute’s differential treatment of the burning

cross is justified without reference to the fact that it may inhibit

the expression of bigots more than it does the expression of

believers in racial equality. The burning cross is singled out

because its history of usage by a large, powerful terrorist

organization causes it to strike a deeper fear into the hearts of

the targets. This particular threat causes the same kind of harm

that threats generally cause, but in greater degree. That is an

entirely legitimate reason to single it out for special prohibition

and punishment.

II. The proscribable category of threats

requires further definition.

Several categories of speech or expressive conduct may be

prohibited on the basis of their content. See R. A. V. v. St. Paul,

505 U. S. 377, 382-383 (1992). Three of these relate to

violence: threats, “fighting words,” and advocacy of violence.

See Rankin v. McPherson, 483 U. S. 378, 397 (1987) (Scalia,

J., dissenting) (noting these among the categories “entitled to no

First Amendment protection”). The three differ in terms of the

perpetrator and the target of the feared violence. The threat

category has not been sufficiently defined.

“Fighting words” are words likely to cause the listener to

assault the speaker. See Chaplinsky v. New Hampshire, 315

U. S. 568, 573-574 (1942). In R. A. V., the state court tried to

shoehorn the ordinance into the “fighting words” doctrine. See

505 U. S., at 413-414 (White, J., concurring in the judgment).

That was a curious choice, and it compounded the difficulties

of an already problematic ordinance. Although the targets of

cross burning may be moved to violence, whether out of anger

or an understandable belief in the need for a pre-emptive strike,

that is not the usual result or the likely reason for the prohibi-

tion.

The second category, advocacy of violence, addresses the

danger of the listener perpetrating an act of violence on a third

person. That category is the subject of the exacting require-

ments of Brandenburg v. Ohio, 395 U. S. 444, 447 (1969). It

has no application to the present case. See Black v. Common-

wealth, 262 Va. 764, 793-794, 553 S. E. 2d 738, 754-755

(2001) (Hassell, J., dissenting).

The third category is a threat of a violent act by the speaker

against the listener. Watts v. United States, 394 U. S. 705

(1969) was a brief per curiam opinion that shed only a little

light on this category. It held that the prohibition on threats

against the President was constitutional, id., at 707, but that a

“true ‘threat’” was required, at least under the statute in

question. So what is a “true threat” and what is the other kind?

The boundaries of this proscribable category are not well

defined.

There can be little doubt that the conduct of Elliott and

O’Mara lies well within the boundaries of proscribable conduct.

Planting a burning cross in the target’s yard is well understood

to be a threat of violence, just as clearly as if they had spray-

painted “We are going to lynch you” on the wall of Mr.

Jubilee’s home.

Black’s case is more difficult. This was not a private

burning, observed only by the Klan members> Cf. Branden-

burg, 395 U. S., at 445-446. Instead, it was seen by others,

with an intimidating effect, even though not directed at anyone

in particular. See Pet. for Cert. 6-7. These facts are close

enough to the constitutional line to make this case useful as a

survey marker for mapping that line.

States can and should protect their citizens from threats of

violence. Because threats inevitably involve expression, First

Amendment challenges will be made. This area has not been

well defined to date, and the present case is well suited to refine

that definition. Legislatures need to know the boundaries so

that they may draft and enact constitutional protections. In-

Massachusetts v. Oakes, 491 U. S. 576, 586 (1989), Justice

Scalia indicated that the overbreadth doctrine is partly punitive,

to provide legislatures with “incentive to stay within constitu-

tional bounds in the first place.” If the Court is going to do

that, it has a responsibility to make clear where those bounds

lie. Governing is not a shell game. Legislatures should not

have to guess where the boundary is, and the law-abiding

people of the state should not be punished when their represen-

tatives guess wrong. This is particularly true when the “expres-

sive conduct” in question is terrorism. The peace, safety, and

well-being of real people are at stake here.

Ill. The Virginia Supreme Court’s overbreadth

holding is contrary to Brockett.

The Virginia Supreme Court held that Virginia Code

§ 18.2-423 is invalid in its entirety under the federal First

Amendment overbreadth doctrine because of its final para-

graph. See Black v. Commonwealth, 262 Va. 764, 777, 553

S. E. 2d 738. 745-746 (2001), App to Pet. for Cert. 16-17. That

paragraph reads: “Any such burning of a cross shall be prima

facie evidence of an intent to intimidate a person or group of

persons.”

The Attorney General has explained why the state court’s

analysis is erroneous and worthy of review in one aspect. The

court expanded the overbreadth doctrine beyond the actual

prohibition of the statute to situations where a person might be

erroneously charged. See Pet. for Cert. 27-29. This point is

well presented and requires no further briefing at this stage.

There is another aspect of the state court’s overbreadth

analysis which also warrants this Court’s review. Assuming for

the sake of argument that there may be a problem with the final

paragraph, Brockett v. Spokane Arcades, Inc., 472 U.S. 491,

504-505 (1985) requires that severability be considered, with

one possible caveat.

In cases coming from the lower federal courts, this Court

has repeatedly held that the offending portion must be excised,

rather than striking down the entire statute, unless that would be

contrary to the legislative intent. See id., at 505-506; Reno v.

ACLU, 521 U. S. 844, 883 (1997). If this case had been

decided in the federal courts, invalidation of the statute without

considering severability would be clear error under Brockett

and Reno.

This case, of course, does come from a state court. The

Brockett rule is based on the principle that “a federal court

should not extend its invalidation of a statute further than

necessary to dispose of the case before it.” 472 U. S., at 502

(emphasis added). The extent to which this principle is binding

on state courts when they consider federal constitutional attacks

on state statutes appears to be an open question, and it is an

important one.

The state court in the present case unambiguously decided

a federal question. It decided that the First Amendment forbids

any enforcement of this statute because of the final paragraph,

regardless of whether that paragraph is employed in the

particular case and regardless of how powerful other evidence

of intent to intimidate may be. The authority of state courts to

judicially review state statutes on federal grounds derives from

the United States Constitution. See U. S. Const., Art. VI. The

extent of that authority is a federal question, reviewable in this

Court. The Brockett principle should apply equally to state

courts when they consider federal constitutional challenges to

state statutes.

Cases from state courts are different in some respects, of

course. If the highest court of a state actually considers

severability and decides the statute is not severable, that is a

state-law question, see Leavitt v. Jane L., 518 U.S. 137, 139

(1996) (per curiam), on which the state high court has the last

word. That did not happen in this case, though, and a more

obvious example of clean severability is difficult to imagine.

The Virginia Legislature not only would have enacted the

statute without the final paragraph, it actually did. See Black,

262 Va., at 771, and n. 4, 553 S. E. 2d, at 742, and n. 4, App. to

Pet. for Cert. 6, and n. 4 (history of statute). If the last amend-

ment really were unconstitutional, then it could easily be

stricken, restoring the statute to its 1974 form.

The Virginia Supreme Court’s decision to invalidate the

entire statute constitutes a meat-axe misuse of the awesome

power of judicial review. Because it was done in the name of

the First Amendment, this error can and should be corrected by

this Court.

CONCLUSION

The petition for writ of certiorari should be granted.

February, 2002

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation