# Amicus Curiae Brief — Virginia v. Black

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A06

## Record

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

## Text

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
4
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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
I a 9
Statutes
ED inne Been ec cen banecnenseaneads 4
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A06. Public record. Not legal advice.