Petitioners Brief — Virginia v. Black

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Su x Court, US

No. 01-1107

In The | de,

Supreme Court of the anit States

COMMONWEALTH OF VIRGINIA,

Petitioner,

BARRY ELTON BLACK, RICHARD J. ELLIOTT,

AND JONATHAN O” MARA,

Respondents.

On Writ Of Certiorari

To The Supreme Court Of Virginia

BRIEF OF PETITIONER

_—

JERRY W. KILGORE

Attorney General of Virginia

WILLIAM H. Hurp

State Solicitor

Counsel of Record

MAUREEN RILEY MATSEN

WILLIAM E. THRO

Deputy State Solicitors

ALISON P. LANDRY

CHRISTY A. MCCORMICK

Assistant Attorneys General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436 (voice)

(804) 371-0200 (facsimile)

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

(00 PV

QUESTION PRESENTED

Does the Virginia statute that bans cross burning with

intent to intimidate violate the First Amendment, even

though the statute reaches all such intimidation and is not

limited to any racial, religious or other content-focused

LIST OF PARTIES

The petitioner is the Commonwealth of Virginia. The

respondents are Barry Elton Black, Richard J. Elliott and

Jonathan O’Mara, each of whom was convicted under

Virginia Code § 18.2-423, which prohibits cross burning

with intent to intimidate.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................0c:cccceeceeeeeeeeeee i

EE ii

ET 1

EET ae 2

CONSTITUTIONAL PROVISIONS AND STATUTE

SESE 2

STATEMENT OF CASE .............ccccccccsssssescecccceseeceees 2

SUMMARY OF ARGUMENT................0..ccccccceceeeeceees 9

Eee 11

I. The Virginia Statute Is Content-Neutral....... 11

Il.

A. Unlike the Ordinance in R.A.V., the Vir-

ginia Statute Is Not Limited to Disfavored

1. Similarly Worded Laws Have Been

Deemed Content-Neutral ...................

2. Statutes Invalidated under the Rea-

soning of R.A.V. Are Distinguishable

Because They Lacked an Intimidation

Element Or Contained Content Dis-

SETS aS a

The Legislature’s Purpose Does Not Alter the

Content-Neutrality of the Virginia Statute........

A. Legislative Purpose Is Irrelevant.............

B. If Legislative Purpose Is Relevant, the

Statute Is Still Constitutional Because Vir-

ginia’s Purposes Are Legitimate ..................

TABLE OF CONTENTS - Continued

Page

C. Even If There Was Also an Illegitimate Pur-

pose, the Legitimate Purposes Control......... 24

III. Cross Burning Can Be Used To Intimidate

Anyone; Any Numerical Correlation Between

Cross Burning And Bigotry Does Not Un-

dermine Content-Neutrality .................:.:0000+ 25

IV. Alternatively, If The Virginia Statute Is

Deemed Content-Based, It Is Justified By

the Three Exceptions in R.A.V. ...............c+++ 31

A. Cross Burning Is an Especially Virulent

Form of Intimidation......................00ccse0+ 32

B. As a Subclass of Intimidation, Cross Burning

Has an Array of Secondary Effects............... 37

C. No Official Suppression Of Ideas Is Afoot ..... 40

V. The Virginia Statute Is Not Overbroad.......... 41

A. The Lower Court Misunderstood This

Court’s Overbreadth Jurisprudence ......... 41

B. Under This Court’s Overbreadth Juris-

prudence, the Virginia Statute Is Not

I a enictenieninceiiaaiaialmttiiate 45

1. There Is No Real Overbreadth ........... 46

2. There Is No Substantial Overbreadth.. 46

C. If the Presumption about Intent to In-

timidate Renders the Statute Overbroad,

Then This Court Should Sever the Pre-

sumption from the Remainder of the

IID. .ccuscnssenesnnneasossnnssnonmesaimmeansensedndens 49

COBOL AIEIOIIN occccccccccccccccccccocccccccccscscscsosssesescssorscoses 50

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Free Speech Coalition,

I, es 48

Barnes v. United States,

| EE RA eee ET 42

Bennefield v. Commonwealth,

467 S.E.2d 306 (Va. App. 1996) ..........cccccccccecccsecceceeecees 8

Black v. Commonwealth,

| ne passim

Boos v. Barry,

AEE oe ee em. 38

Broadrick v. Oklahoma,

EERIE ee AO 45, 46, 47

Brown v. Board of Education,

Rr 24

Burson v. Freeman,

SP i 30

Chaplinsky v. New Hampshire,

RE, 12, 14

Edwards v. Aguillard,

ea Te, 22

Ferber v. New York,

En ee, 44, 47, 48

Frisby v. Schultz,

TT ee ae ee 18, 19, 20

Grayned v. City of Rockford,

Ee eae 46

TABLE OF AUTHORITIES -— Continued

Page

Griffin v. County School Board,

fl Ud rrr 24

Harrison v. Day,

Pl fy, | 24

Hill v. Colorado, .

BBS UB. TED CBBGG) ..ccreccccccccccccccccccccsscccccscccscccscccces passim

In re: Welfare of R.A.V.,

464 N.W.2d 507 (Minn. 1991) .................ccceeeseceeeeseeeeeeeees 12

In re Steven S.,

31 Cal. Rptr. 2d 644 (Cal. App. 1994).......... 33, 34, 38, 48

Leary v. United States,

4 ee 42

Lemon v. Kurtzman,

A een 24, 25

Lynch v. Donnelly,

CO DE Ll 25

Madsen v. Women’s Health Center,

CO en 20, 30

Metromedia, Inc. v. San Diego,

[ LP ll 41

Mueller v. Allen,

ON Ee 27, 28

Nixon v. Condon,

| See 36

O’Mara v. Commonwealth,

fl 1, 5, 8, 26

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

BE TEE, BI CI cccccccccnsesccsnsscccenscsssssssssscssssssennes passim

Vii

TABLE OF AUTHORITIES — Continued

Page

Rafeedie v. INS,

880 F.2d 506 (D.C. Cir. 1989)....................cccccccssssscsscesees 14

Reno v. A.C.L.U., '

I 48

Renton v. Playtime Theatres, Inc.,

ES ee ane 24, 38, 39

Schenck v. United States,

ESET See RRC aN DRE nT TROT 35

Sons of Confederate Veterans, Inc. v. Comm’r,

EET 49

State v. Ramsey,

| 16

State v. Sheldon,

I 16

State v. Talley,

I 32, 38

State v. T-B.D..,

Fe Be I, i cececcccccccccccesscncecccsncescesees passim

State v. Vawter,

TT Pe TR ee: 17

Sutton v. Commonwealth,

TTT TIE ET a A TS 13

Texas v. Johnson,

EIST Cee a RED 18, 34

United States Dep't of Treasury v. Fabe,

STE 49

United States v. Eichman,

ne ee, 17, 18

Vili

TABLE OF AUTHORITIES -— Continued

Page

United States v. O’Brien,

BE TEE, SF Ce ceccccccscvcccncscsczsvssvnsscssccccevevessevenssesseses 21

Wallace v. Jaffree,

GED TEE, Bp Ce ccceceneccevecscncccensssscesescnsesenvenccscsesevesseses 22

Watts v. United States,

I 14, 26

Williamson v. Lee Optical Co.,

ee 39

Zelman v. Simmons-Harris,

Re 27, 28, 29

STATE STATUTES

Colo. Rev. Stat. § 18-9-122 (1) and (3) (1999) ............ceee 19

Be. Boat. SFG. 1B (IGGS)...nccocccerecccerevcccccevceccecvevcccvesesccesenenes 15

Dd. Code art. 37 § 10A. (1067) .......cccccorsressscscscessccccvscecceeees 16

Minn. Legis. Code § 292.02 (1990).............:cccceeeeeeeeeeeeeeenees 12

N.J. Stat. Ann. § 2C:33-10 (1995) ...........ccccccseecereeeeeeeeeeees 16

S.C. Code Amn. § 16-7-120 (1985) .........:ccccccceseeeseereeeeenneees 16

Vin. Aste, Ga. SEO (1GGB).....cccccecccccvererevsveecccveseccccccccesessesers0es 50

Wi, Ga BBG cececccensccccnressecsnssnssepseencnnssnccsessvesscsvessevesenes 49

Win, Gari 6 BG vecccccccccsccsssccesscsesevsencesevescccsccscosesennspesessees 23

Wea, Grin 6 BBD -GBIAD .cccccccosecscccsesccvesescccccccescccesesees 23, 34, 41

OO passim

a 23

Van. Cade § 10.2-BG4.........cccrrccccrccccrrrsevecccessvesercecnososscsseseeeees 5

TABLE OF AUTHORITIES - Continued

Page

ee Ue eiischiceiiibiniceenisieiiiiniaea secaeccae lee Saeed 23

Be I iciciintiatiinitaiiitia a aaa aaa 23

a NTE a iesioiinisenciaitiiiieniiiiintletiabiideti icin taal 23

ee NT RN ON ree 23

a canictenstonemntsnniaetitninaiaaniteetisReee aatae 23

TG CEE aT NEE 23

i eee hsscsnscicnascinciinpinnicaaviniinsicnslinaaiainamanimnatiemianes aD 23

NT TT I 23

I icceeeintcinietetineasiianniail id eine 23

TE ee RET 23

Washington Code § 9A.36.080(1) ..........cccccccccccccccececeeeeeeees 32

FEDERAL STATUTES

Se ny iy ter cnccesniietiniensnneseciicenaciiieinlncanieniieniiialalaah bailed 2

OTHER

Bill to Curb KKK Passed By the House, Action is

Taken Without Debate, Richmond Times Dis-

I CO lait acacia 22

Police Aid Requested By Teacher, Cross is Burned

on Negro’s Yard, Richmond News-Leader, Jan.

nce Lee a Le eae ea 22

BRIEF OF PETITIONER

The Commonwealth of Virginia respectfully petitions

this Court to reverse the judgment of the Supreme Court

of Virginia, which held that the First Amendment is

violated by the Virginia statute prohibiting cross burning

with “the intent of intimidating any person.”

OPINIONS BELOW

The Supreme Court of Virginia held that Virginia

Code § 18.2-423 - which bans cross burning with the

intent to intimidate — is unconstitutional and thus re-

versed the convictions of the three respondents. This

decision is published as Black v. Commonwealth, 553

S.E.2d 738 (Va. 2001), and is reprinted -n the Joint Ap-

pendix at J.A. 269. The opinion of the U. .. of Appeals of

Virginia, affirming the convictions of two respondents,

Jonathan O’Mara and Richard J. Elliott, is published as

O’Mara v. Commonwealth, 535 S.E.2d 175 (Va. App. 2000).

It is reprinted at J.A. 258. The unpublished per curiam

order of the Court of Appeals of Virginia, affirming the

conviction of the third respondent, Barry Elton Black, is

reprinted at J.A. 201. The letter opinion of the Circuit

Court of Carroll County, overruling Black’s motion to

dismiss the indictment is reprinted at J.A. 7. The ruling

whereby the Circuit Court of the City of Virginia Beach

overruled Elliott’s and O’Mara’s motions to dismiss their

indictments is reprinted at J.A. 222, 224.

JURISDICTION

The decision of the Virginia Supreme Court was

entered on November 2, 2001. This Court has jurisdiction

pursuant to 28 U.S.C. § 1257. A writ of certiorari was

granted on May 28, 2002.

CONSTITUTIONAL PROVISIONS

AND STATUTE INVOLVED

The First Amendment to the Constitution of the

United States provides that “Congress shall make no law

. abridging the freedom of speech.” The Fourteenth

Amendment provides that “nor shall any State deprive

any person of life, liberty, or property, without due process

of law.”

Virginia Code § 18.2-423 states:

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.

STATEMENT OF CASE

For a half-century, the Commonwealth of Virginia has

banned the fear-inspiring practice of cross burning.

Enacted in 1952, the statute at issue — Virginia Code

§ 18.2-423 - was a well-advised response to domestic

terrorism by the Ku Klux Klan.’ Yet, the statute is not

limited to that group, nor to those whose acts of intimida-

tion spring from similar racial or religious bigotry. Instead,

the statute bans cross burning by anyone whose intent is

to intimidate anyone for any reason.

The case at bar involves a consolidated appeal arising

out of three separate convictions for violations of the cross

burning statute. Two co-defendants were convicted for 4

1998 act of cross burning in Virginia Beach. The third

conviction followed a separate cross burning incident in

1998 in Carroll County, part of rural southwestern Vir-

ginia. The facts of each case are as follows:

Virginia Beach - May 2, 1998: There is no evidence

that these two respondents — Richard J. Elliott and Jona-

than O’Mara —- are members of the Klan or any similar

group. The record does not show that they hold any par-

ticular views on politics or race or any other subject. They

tried to burn a cross in the yard of Elliott’s next door

neighbor, James S. Jubilee, simply because they wanted to

“get back” at Jubilee by intimidating him and his family.

A native Virginian and African-American, Jubilee had

recently moved back to the Commonwealth from Califor-

nia, along with his wife and two sons. J.A. 226. The family

' The Virginia Supreme Court took notice of the public history of

the times in which the cross burning statute was originally enacted,

citing a series of nine newspaper articles appearing between 1949 and

1952. Black, 553 S.E.2d at 742 n.2, J.A. 274 n.2. Copies of these articles

are reproduced at J.A. 312-26.

had lived in their new neighborhood for about four months

when, on May 2, 1998, Jubilee asked Elliott's mother

about “some shooting” that was going on behind the Elliott

home. She explained that her son had a firing range where

he shot firearms as a hobby. Jd. at 228. The conversation

was cordial. Jd. at 228. Even so, Jubilee’s inquiry so

angered Elliott and O’Mara that — after drinking a lot of

beer — they hatched a plan to burn a cross that night in

Jubilee’s yard. They were joined in this endeavor by a

seventeen year-old friend, David Targee.

Late that night, the three of them rode onto Jubilee’s

land in a pick-up truck, planted their makeshift cross, set

it afire and fled. Jubilee awoke the next morning —- a

Sunday — to find the partially burned cross stuck in the

ground less than 20 feet from his house. Jd. at 229-30.

Initially furious, Jubilee soon became worried and very

nervous. He was concerned about what might come next,

and saw the burnt cross as “just the first round.” Jd. at

231. Jubilee called the police.

After an investigation, Elliott and O’Mara were

identified as perpetrators. They were both indicted for

attempting to burn a cross with intent to intimidate, in

violation of Va. Code § 18.2-423.’ Before trial, both defen-

dants moved to dismiss the indictments claiming that the

cross burning statute is unconstitutional. The trial court

denied both motions. J.A. 222, 224.

* The third perpetrator, David Targee, was also charged and

became the key witness for the prosecution. See J.A. 239-45. His case

was handled in juvenile and domestic relations district court and is not

addressed in the decision that is the subject of this writ of certiorari.

Tried by a jury on February 22-23, 1999, Elliott was

convicted of attempted cross burning. J.A. 252. The circuit

court sentenced Elliott to 90 days in jail and fined him

$2,500. J.A. 254. Elliott appealed.

Meanwhile, after losing his motion to dismiss, O’Mara

entered a conditional guilty plea under Va. Code § 19.2-

254, thereby preserving his constitutional objection. The

circuit court sentenced O’Mara to 90 days in jail and fined

him $2,500. Half of the jail time and $1,000 of the fine

were suspended. J.A. 257. O’Mara appealed.

With their cases consolidated on appeal, both O’Mara

and Elliott maintained that § 18.2-423 is “unconstitutional

as violative of the free speech and expression protections

guaranteed by both the United States and Virginia Consti-

tutions.” O’Mara, 535 S.E.2d at 177, J.A. 259 (internal

quotation marks omitted). The Virginia Court of Appeals

disagreed:

Code § 18.2-423 suffers from none of the several

unconstitutional infirmities advanced by defen-

dants. The statute targets only expressive con-

duct undertaken with the intent to intimidate

another, conduct clearly proscribable both as

fighting words and a threat of violence. The stat-

ute does not discriminate in its prohibition and is

neither overbroad nor underinclusive.

O’Mara, 535 S.E.2d at 181, J.A. 268 (emphasis added).

Thus, the Court of Appeals affirmed the convictions. Jd.

Elliott and O’Mara then appealed to the Virginia Supreme

Court, which consolidated their cases with the appeal of

the third cross burning defendant, whose case will now be

discussed.

Carroll County - August 22, 1998: Unlike the other

two respondents, Barry Elton Black is a Klansman. A

leader in the Klan, Black led a rally and cross burning in

Carroll County, Virginia, on the evening of August 22,

1998. J.A. 58-59. This incident took place on private

property with the permission of the owner — but in public

view, a fact the decision below does not note. While d part

of the property could not be seen from the roadside, this

was not the spot chosen for erecting the cross. Instead, it

was erected and burned where passers-by could clearly see

it. Standing 25 to 30 feet tall, the burning cross was visible

along a three-quarter mile stretch cf state roadway, where

cars passed at the rate of about 40 to 50 miles per hour. Jd.

at 112-13.’ The reaction of one black family driving along

the road was noted by a deputy sheriff. They “stopped and

looked across the field” toward the burning cross, then

“took off at a higher than normal rate of speed.” Jd. at 112.

The burning cross was also clearly visible from 8 to 10

nearby houses, including the home of Rebecca Sechrist. Id.

at 124. Her home was close enough that she could hear

Klan speakers “talk real bad about the blacks and the

Mexicans.” Jd. at 176. “One guy got up and said he would

love to take a .30/.30 and just random[ly] shoot the blacks

__. ” Id. at 130. So intimidating was the scene that Mrs.

Sechrist — who is neither black nor Hispanic — “sat there

° ‘The very public nature of the display is confirmed by a photo-

_ the ns showing the open field where the cross was —

and the long stretch of adjacent highway. J.A. 65-66, 192. Ano -

photograph shows a secluded area on the same property —-

Klan could have held its rally out of public view, without the intimi t-

ing effect on passers-by. J.A. 65-66, 193. See also J.A. 104-05 (describing

alternative location behind trees on same property).

and ... cried,” terrified that the Klan might burn her

home or harm her children. Jd. at 131.

Admitting his responsibility for the cross burning,

Black was arrested by the county sheriff and a deputy for

violating Va. Code § 18.2-423. En route to jail, Black

volunteered his complaint about “blacks and Mexicans .. .

walking up and down the sidewalk with white women

holding hands and taking all the jobs.” He also asked

“When is the white man going to stand up to the blacks

and Mexicans in this area?” Jd. at 155.

Black defended against the charge by challenging the

constitutionality of the statute, moving to dismiss his

indictment on the theory that the statute violates the First

Amendment of the United States Constitution and compa-

rable provisions of the Virginia Constitution. In a letter

opinion, the trial court rejected Black’s arguments, saying:

This Court accepts the Commonwealth’s position

that the Code Section 18.2-423 reaches only the

crime of intimidation when an accused actually

intended to intimidate others by his actions, such

limitation saves the statute from being a pro-

scription of speech in violation of the First

Amendment and... the Virginia Constitution.

J.A. 10.

Black was tried before a jury, who convicted him of the

offense charged. Fined $2,500, he appealed. J.A. 200. Like

the trial court, the Virginia Court of Appeals rejected

Black’s arguments. Having decided the Virginia Beach

case just a few weeks earlier, the Court of Appeals issued a

one sentence opinion, affirming the judgment of the trial

court “for the reasons stated in O’Mara v. Commonwealth.”

J.A. 201. Black again appealed.

The Virginia Supreme Court consolidated Black’s

appeal with the Elliott and O’Mara appeals. Taking up the

free speech issues raised by the three defendants, the

Court concluded that:

[Despite the laudable intentions of the General

Assembly to combat bigotry and racism, the se-

lectivity of its statutory proscription is facially

unconstitutional because it prohibits otherwise

permitted speech solely on the basis of its con-

tent, and the statute is overbroad.

Black, 553 S.E.2d at 740, J.A. 270 (emphasis added).

By a vote of 4 to 3, the Virginia Supreme Court struck

down the Commonwealth’s ban on cross burning, believing

it to be “analytically indistinguishable” from the St. Paul

ordinance declared unconstitutional in R.A.V. v. City of St.

Paul, 505 U.S. 377 (1992). Black, 553 S.E.2d at 742, J.A.

275.‘ The Virginia Supreme Court also found fault with

that part of the statute that makes the burning of a cross

prima facie evidence of an intent to intimidate, striking

down the inference under a flawed application of the

overbreadth doctrine. Black, 553 S.E.2d at 743-46, J.A.

276-285.

* Having resolved the case based on the federal constitutional

issues, the Court found it unnecessary to address the respondents’ state

constitutional claims. Black, 553 S.E.2d at 746 n.9, J.A. 285 n.9.

Moreover, as the Virginia Court of Appeals observed in rejecting their

state claim: “Our courts have consistently held that the protections

afforded under the Virginia Constitution are co-extensive with those in

the United States Constitution.” O’Mara, 535 S.E.2d at 178, J.A. 262

(quoting Bennefield v. Commonwealth, 467 S.E.2d 306, 311 (Va. App.

1996)).

SUMMARY OF ARGUMENT

“Few things can chill free expression and

association to the bone like night-riders out-

side the door and a fiery cross in the yard.”

State v. T-B.D., 656 So. 2d 479, 482 (Fla. 1995).

This case involves two important freedoms: freedom of

speech and freedom from fear. In an attempt to leave the

first freedom intact, while securing the second, the Vir-

ginia General Assembly long ago enacted a ban on cross

burning,. but only when accompanied by an intent to

intimidate someone. The Virginia law does not limit its

protection to those of a particular race, religion or back-

ground. It protects everyone. Even so, the Virginia Su-

preme Court read this Court’s decision in R.A.V. v. City of

St. Paul, 505 U.S. 377 (1992), to mean that such a law

constitutes unconstitutional content discrimination. This

was error for several reasons.

First, unlike the local ordinance at issue in R.A.V., the

Virginia statute is content-neutral. It is not limited to

disfavored svbjects or particular victims. Rather, it applies

to anyone who burns a cross with the intent to intimidate

anyone for any reason. In this sense, it is similar to the

cross burning statute upheld in Florida and fundamentally

different from the cross burning statutes struck down in

Maryland, New Jersey, and South Carolina.

Second, contrary to the reasoning of the lower court,

the legislature’s purpose in enacting the Virginia statute

does not alter its content-neutrality. Quite simply, the

motivations of the Virginia General Assembly in enacting

the statute are irrelevant. All that matters is the text and,

as the lower court conceded, the law is content-neutral.

Moreover, if the legislative purpose were relevant, the

Virginia legislature was motivated by the legitimate

purpose of promoting law and order. Furthermore, even if

there were mixed motives for the statute — some legitimate

and some illegitimate — the statute is still constitutional.

An illegitimate motive can doom a content-neutral statute,

if at all, only when there is clearly no evidence of any

legitimate motive whatsoever.

Third, a historical matter, the Virginia statute was

passed in response to cross burnings by the Ku Klux Klan

and similar groups bent upon intimidation of black Vir-

ginians. J.A. 281. Even today, many acts of intimidation by

cross burning may be intertwined with expressions of

racial or religious bigotry. And, as the decision below

points out, the statute does not ban the burning of other

geometric configurations, such as a circle or a square. Yet,

such matters are constitutionally irrelevant. The statute

only reaches speech that can be constitutionally proscribed

and does so with language that is content-neutral. Thus, it

is constitutional.

Fourth, even if this Court were to include that the

Virginia statute is not content-neutral, the statute is fully

consistent with R.A.V. Specifically, the Virginia statute fits

all three of the R.A.V. exceptions. Cross burning is an

especially virulent form of intimidation. Since it is consti-

tutionally permissible to ban all forms of intimidation, it is

constitutional to ban its most virulent forms. Moreover,

cross burning has an array of secondary effects that justify

its proscription. Furthermore, because the statute applies

to anyone who burns a cross with the intent to intimidate

anyone for any reason, and because of the other factors

surrounding this statute, there is no possibility of official

suppression of ideas.

Finally, the Virginia statute is not overbroad. The

decision below misapplied the overbreadth doctrine as

recognized b: this Court. The lower court did not find the

law to be vague, or to prohibit speech that is constitution-

ally protected. What troubled the court was the statutory

inference, which allows — but does not require - a jury to

infer an intent to intimidate from an act of cross burning

alone. The inference leaves the burden of proof squarely on

the prosecution, and it otherwise meets familiar constitu-

tional criteria for statutory inferences. Even so, the court

was concerned that somewhere, somehow an innocent

cross burner might be charged. Yet, as tixis Court’s deci-

sions, make clear, a statute is fatally overbroad only if

there is both “real” overbreadth, by prohibiting constitu-

tionally protected expression, and “substantial” over-

breadth, by prohibiting a significant amount of such

expression. Because the statute, by its terms, is limited to

acts of intimidation, it does not prohibit any protected

expression. Moreover, respondents have not and cannot

point to a single instance, much less numerous instances

of anyone being prosecuted under the statute for an

innocent cross burning. For these reasons, too, the decision

below is in error.

ARGUMENT

I. THE VIRGINIA STATUTE IS CONTENT:

NEUTRAL.

A. Unlike the Ordinance in R.A.V., the Virginia

Statute Is Not Limited to Disfavored Sub-

jects.

The Virginia Supreme Court struck down the Virginia

cross burning statute because it believed the law was

“analytically indistinguishable” from the ordinance de-

clared unconstitutional in R.A.V. v. City of St. Paul, 505

U.S. 377 (1992). Black, 553 S.E.2d at 742, j.A. 275. This

was error. The two laws are substantially different.

Confined to certain disfavored topics, the St. Paul

ordinance said:

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 dis-

orderly conduct and shall be guilty of a misde-

meanor.

R.A.V, 505 U.S. at 380 (quoting Bias-Motivated Crime

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

(emphasis added).

Before R.A.V. reached this Court, the ordinance had

been limited by the Minnesota Supreme Court to reach

only “fighting words,” a form of speech that can be consti-

tutionally proscribed. Jd. at 381 (citing In re Welfare of

R.A.V., 464 N.W.2d 507, 510 (Minn. 1991)).’ Even so, this

* The concept of “fighting words” - and their exclusion from the

right of free expression — was recognized in Chaplinsky v. New Hamp-

shire, 315 U.S. 568 (1942). “Fighting words” are words “which by their

very utterance inflict injury or tend to incite an immediate breach of

the peace.” Jd. at 572. The focus is not on any likely follow-up by the

speaker, but on the likely response by the person to whom the words

are said. See, e.g., id. at 573 (“[F lighting words” have the “characteristic

of plainly tending to excite the addressee to a breach of the peace.”)

(emphasis added).

Court found the ordinance to be facially unconstitutional

because, it applied only to those particular “fighting

words” that insult or provoke violence “on the basis of

race, color, creed, religion or gender.” R.A.V., 505 U.S. at

391. As the Court explained:

Displays containing abusive invective, no matter

how vicious or severe, are permissible unless

they are addressed to one of the specified disfa-

vored topics. Those who wish to use “fighting

words” in connection with other ideas — to ex-

press hostility, for example, on the basis of politi-

cal affiliation, union membership, or homo-

sexuality - are not covered. The First

Amendment does not permit St. Paul to impose

special prohibitions on those speakers who ex-

press views on disfavored subjects.

Id. In other words, the St. Paul ordinance was invalid not

because it banned fighting words, but because it banned

only those fighting words which were addressed to specific

disfavored subjects.

The Virginia statute is markedly different. First, the

focus of the Virginia statute is intimidation.’ Fighting

words and intimidation are alike in that they can both

be constitutionally proscribed. R.A.V., 505 U.S. at 388

* In Virginia criminal law, “intimidation” means acts that put the

victim “in fear of bodily harm.” Black, 553 S.E.2d at 751, J.A. 297-98

(Hassell, J., joined by Carrico, C.J., Koontz, J., dissenting) (quoting

Sutton v. Commonwealth, 324 S.E.2d 665, 669 (Va. 1989)). “Such fear

must arise from the willful conduct of the accused, rather than from

some mere temperamental timidity of the victim; however, the fear of

the victim need not be so great as to result in terror, panic or hysteria.”

Id.

(“(T]hreats of violence are outside the First Amend-

ment.”).’ But intimidation is a far more insidious evil.

Hurling an epithet may sometimes provoke a breach of the

peace in the heat of the moment, but the danger is likely

soon to pass. It is different with intimidation. A threat to

do bodily harm to an individual or his family is likely to

sink deep into the psyche of its victim, acquiring more

force over time. So it was, for example, with James Jubi-

lee, whose initial reaction of anger soon gave way to fear

about what might come next. J.A. 231. “The value of a

sword of Damocles is that it hangs — not that it drops.”

Rafeedie v. INS, 880 F.2d 506, 530 n.8 (D.C. Cir. 1989)

(Ginsburg, J., concurring).

Second, and more importantly, unlike the St. Paul

ordinance, the Virginia law is not limited to any set of

disfavored subjects. It applies whenever anyone burns a

cross to intimidate anyone for any reason. Political affilia-

tion, union membership ve! non, sexual orientation, age,

gender, personal grievance: it makes no difference what

may prompt the intimidation. So long as there is an intent

to intimidate, all acts of cross burning are banned. All are

” While there is some overlap between fighting words and intimi-

dation, the two concepts are different. In some circumstances, words

that are intended to intimidate another may trigger an instinct for self-

preservation and/or provoke such anger as to lead to an immediate

breach of the peace. See, eg., Chaplinsky, 315 U.S. at 573

(“(T}Jhreatening” words are “likely to cause a fight.”). In other circum-

stances, where the threat is conveyed anonymously, or where it is made

to the very weak or the very powerful, it is unlikely to provoke a violent

reaction. Even so, such threats may be constitutionally proscribed. See,

e.g., Watts v. United States, 394 U.S. 705, 707 (1969) (explaining that

statute criminalizing threats against the President is facially constitu-

tional).

subject to the same punishment. Thus, the statute is

content-neutral.

1. Similarly Worded Laws Have Been Deemed

Content-Neutral.

| This conclusion is supported by the post-R.A.V. deci-

sion of the Florida Supreme Court, which upheld that

State’s cross burning law* using the same rationale now

urged by the Commonwealth in defense of the Virginia

statute:

The present statute comports with R.A.V. be-

cause the Florida prohibition is “not limited to

{any] favored topics,” but rather cuts across the

board evenly. No mention is made of any special

topic such as race, color, creed, religion or gender.

* * *~

The statute is a legitimate legislative at-

tempt to protect Floridians of every stripe from a

particularly reprehensible form of tyranny. The

* Section 876.18, Fla. Stat. (1993) provides:

Placing burning or flaming cross on property of an-

other. — 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

= violates this section commits a misdemeanor of the first

egree....

The Florida Supreme Court found this statute to be content-neutral

within the meaning of R.A.V. even though it lacks the “intent to

intimidate” element so prominent in the Virginia law.

16.

statute plays no favorites — it protects equally

the Baptist, Catholic, Jew, Muslim; the Commu-

nist, Bircher, Democrat, Nazi, Republican,

Socialist; the African-American, Caucasian, Hai-

tian, Hispanic, native American, Vietnamese; the

heterosexual, the male homosexual, the lesbian;

the established politician, the neophyte, the ac-

tivist; the author, the editor, the publisher; the

artist, the curator; the teacher, the school admin-

istrator; the union organizer, the plant owner.

State v. TB.D., 656 So. 2d 479, 481-82 (Fla. 1995), cert.

denied, 516 U.S. 1145 (1996). Like the Florida law, the

Virginia statute “plays no favorites.” It, too, is content-

neutral — and constitutional.

2. Statutes Invalidated under the Reasoning of

R.A.V. Are Distinguishable Because They

-Lacked an Intimidation Element Or Con-

tained Content Distinctions.

These two features of the Virginia law — the intimida-

tion element and the absence of any content-based catego-

ries — distinguish this case from the three state supreme

court decisions striking down cross burning statutes in the

wake of R.A.V. The South Carolina statute invalidated in

State v. Ramsey, 430 S.E.2d 511 (S.C. 1993), contained no

intimidation element. See S.C. Code Ann. § 16-7-120

(1985). Neither did the Maryland law overturned in State

v. Sheldon, 629 A.2d 753 (Md. 1993). See Md. Code Ann.

art. 27, § 10A (1957). The New Jersey statute had an

intimidation element, but also contained problematic

content-based restriction, limiting its sweep to “the basis

of race, color, creed or religion.” N.J. Stat. Ann. § 2C:33-10

(1995). Thus, the law was declared unconstitutional. State

v. Vawter, 642 A.2d 349 (N.J. 1994). Given these important

distinctions, none of these three cases presents a persua-

sive basis for striking down the Virginia law.

II. THE LEGISLATURE’S PURPOSE DOES NOT

ALTER THE CONTENT-NEUTRALITY OF

THE VIRGINIA STATUTE.

Although the lower court conceded that the Virginia

statute contains no content-based categories, it was not

satisfied with this level of inquiry. Instead, it looked to

what it thought was the legislature’s “motivating purpose”

and found it problematic. Black, 553 S.E.2d at 744, J.A.

279. There are three errors in this assessment. First,

legislative motivation is irrelevant here. Second, even if

legislative purpose were relevant, there would be no basis

for concluding that the legislature had any purpose in

mind other than to prevent intimidation. Third, even if

legislative purposes were mixed — some legitimate and

some not — the statute still must be upheld based on the

legitimate purpose of preventing intimidation.

A. Legislative Purpose is Irrelevant.

The motivations of the Virginia legislature are irrele-

vant. The Virginia Supreme Court based its inquiry into

legislative purpose on a misreading of United States v.

Eichman, 496 U.S. 310 (1990), where this Court struck

down a federal law that prohibited burning or physically

desecrating the United States flag. Black, 553 S.E.2d at

743-44, J.A. 279-80. The cases are very different. This

Court has made it clear that the act of desecrating the flag

enjoys the full protection of the First Amendment. Texas v.

Johnson, 491 U.S. 397, 414 (1989); Eichman, 496 U.S. at

315. By contrast, the act of burning a cross is typically not

intended to heap calumny upon the Christian religion, but

to intimidate a victim. Intimidation can be constitutionally

proscribed. R.A.V., 505 U.S. at 388. Where there is no

intent to intimidate, the Virginia statute does not apply.

Moreover, the government interest asserted in

Eichman was preserving the flag as the “unique and

unalloyed symbol of the Nation.” Eichman, 496 U.S. at

315. Thus, while there was “no express content-based

limitation on the scope of the prohibited conduct, it [was]

nevertheless clear that the Government’s asserted interest

[was] related to the suppression of free expression.” Id. at

315 (emphasis added). Indeed, the content-based limita-

tion was implicit. While cast in positive language, the

asserted government interest was simply the “flip-side” of

an unconstitutional objective. Here, the interest asserted

by Virginia is preventing an egregious form of intimida-

tion. Such an interest is not related to the suppression of

free expression. Admittedly, intimidation by cross burning

is a tactic introduced into our society by a radical group

notorious for its bigoted views on race and religion, but

this is not the sort of “relationship” at issue in Eichman.

Instead, the relevant precedents are found in Frisby v.

Schultz, 487 U.S. 474, 482 (1988), and Hill v. Colorado,

530 U.S. 703, 724-25 (2000). In both cases, this Court

upheld laws as facially neutral even though the Court

acknowledged that they were enacted in response to

partisans on one side of an issue. In Frisby, the Court

upheld an ordinance that prohibited picketing in front of

an individual residence.’ The ordinance was adopted in

response to activities by one group — anti-abortion demon-

strators — who had been picketing in front of a doctor’s

home. Frisby, 487 U.S. at 476. Even so, this Court deter-

mined that the statute was content-neutral because it

prohibited all picketing in front of a residence, regardless

of the message being conveyed. Id. at 482.

Similarly, in Hill, this Court upheld an ordinance that

imposed significant restrictions on speech within 100 feet

of an entrance to any health care facility. Within this

restricted zone, the ordinance made it unlawful to know-

ingly approach within 8 feet of another person, without

that person’s consent, “for the purpose of passing a leaflet

or handbill to, displaying a sign to, or engaging in oral

protest, education, or counseling with [that] person.” Hill,

530 U.S. at 707 (quoting Colo. Rev. Stat. § 18-9-122(3)

(1999)). The motivation for the law was to restrict abortion

protestors in venues where abortions are performed, a

point confirmed by the statutory preamble.” Yet, despite

the causal connection and statement of purpose, this Court

found the statute to be content-neutral because its prohi-

bitions appeared even-handed:

* The ordinance read: “It is unlawful for any person to engage in

picketing before or about the residence or dwelling of any individual in

the Town of Brookfield.” Frisby, 487 U.S. at 477.

” The statute declared that “the exercise of a person’s right to

protest or counsel against certain medical procedures must be balanced

against another person’s right to obtain medical counseling and

treatment in an unobstructed manner.” Hill, 530 U.S. at 708 n.1

(quoting Colo. Rev. Stat. § 18-9-122(1) (1999)) (emphasis added). No one

on the Court doubted that this was a euphemistic reference to abortion.

The statute is not limited to those who oppose

abortion.... It applies to all “protest,” to all

“counseling,” and to all demonstrators whether

or not the demonstration concerns abortion, and

whether they oppose or support the woman who

has made an abortion decision. That is the level

of neutrality that the Constitution demands.

Id. at 725."

The activities restricted in Frisby and Hill were fully

protected by the First Amendment. Frisby, 487 U.S. at 479

(noting that “antipicketing ordinance operat(ed] at the

core of the First Amendment”); Hill, 530 U.S. at 714 (“The

First Amendment interests of petitioners are clear and

undisputed.”). By contrast, the acts of intimidation at

issue here can be constitutionally proscribed. R.A.V., 505

U.S. at 388. Surely, the requirement for content-neutrality

cannot be more stringent in the case at bar than it was in

Frisby or Hill. While the Virginia statute was enacted in

" In Madsen v. Women’s Health Center, 512 U.S. 753 (1994), this

Court upheld as content-neutral a state court injunction that limited

expressive activity by abortion protestors without imposing similar

restrictions on abortion proponents. In so ruling, the Court “look[ed) to

the government’s purpose as the threshold consideration. Id. at 763.

Such an inquiry into purpose was necessary there in order to determine

whether the injunction - which was content-based on its face — was

truly content-based for constitutional purposes. Explaining that

abortion opponents and abortion supporters had dissimilar records of

activity — and that abortion opponents had repeatedly violated the state

court’s original order — this Court concluded that the order was content-

neutral. Jd. at 762, 763. “[TJhe fact that the injunction covered people

with a particular viewpoint does not itself render the injunction

content- or viewpoint-based.” Jd. at 763. Because the Virginia statute is

neutral on its face, the Court need go no further.

response to intimidation by the Klan, it is not limited to

the Klan, nor to those who share the Klan’s racial and

religious bigotry. Rather, it applies to all acts of cross

burning with intent to intimidate, regardless of the views

of the perpetrator. Thus, it satisfies the level of neutrality

required by this Court’s precedents.”

B. If Legislative Purpose Is Relevant, the Stat-

ute Is Still Constitutional Because Virginia’s

Purposes Are Legitimate.

If this Court were now to decide that legislative

motivation is relevant, it should nevertheless defer to

Virginia's articulation of a legitimate purpose. “Inquiries

into congressional motives or purposes are a hazardous

matter ... and the stakes are sufficiently high for us to

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

383-84 (1968) (upholding statute banning burning of draft

* Dissenting in Hill, Justice Kennedy viewed the Colorado statute

as an impermissible, content-based restriction on speech, believing it

had the potential for treating speakers differently depending on their

viewpoint. Hill, 530 U.S. at 765 (Kennedy, J., dissenting). He noted, for

example, that a speaker in the protected zone would not be breaking

the law if she praised Supreme Court abortion decisions or congratu-

lated politicians who favored abortion rights. Jd. at 769. On the other

hand, if another speaker in the zone criticized those same decisions or

sought to shame that same politician, she would be engaged in a

“protest” in violation of the same statute. Jd. Justice Kennedy's concern

does not apply here because the Virginia statue lacks any potential for

such uneven application. It bans all cross burning with intent to

intimidate. For example, while it prohibits the bigot from using the

tactic, it likewise protects the bigot against others in the community

who might wish to give him a taste of his own medicine; and it applies

with equal force against anyone wishing to intimidate anyone for any

reason whatsoever.

22 :

cards). In another First Amendment context - the Estab-

lishment Clause — this Court typically defers to the State’s

proffered explanation, at least where it is “sincere and not

a sham.” Edwards v. Aguillard, 482 U.S. 578, 587 (1987).

Moreover, “a court has no license to psychoanalyze the

legislators.” Wallace v. Jaffree, 472 U.S. 38, 74 (1985)

(O’Connor, J., concurring). By analogy, any inquiry into

legislative purpose here must also be “deferential and

limited.” Id.

There is nothing here to show any purpose other than

a wholly legitimate one. Indeed, there is very little to show

legislative purpose at all. There is no legislative preamble,

no committee report and no official record of floor debates. .

Instead, there are several old newspaper articles, cited by

the Virginia Supreme Court, showing a rash of cross

burnings in the years leading up to passage of the original

statute in 1952. See Black, 553 S.E.2d at 742 n.2, J.A. 274

n.2. These incidents were, in the words of the time, “un-

American act{s], designed to intimidate Negroes from

seeking their rights as citizens.” Police Aid Requested By

Teacher, Cross is Burned on Negro’s Yard, Richmond News-

Leader, Jan. 21, 1949, at 19, J.A. 312. The articles also

report the stated purpose of the measure. The bill was

presented to the House of Delegates by a former FBI

agent, Delegate Mills E. Godwin, Jr., who later became

twice Governor of Virginia. According to the article:

“Godwin said law and order in the State were impossible if

organized groups could create fear by intimidation.” Bill to

Curb KKK Passed By the House, Action is Taken Without

Debate, Richmond Times Dispatch, Mar. 8, 1952, at 5, J.A.

325." This is the best available statement of the motivat-

ing purpose, and it is wholly legitimate.

The decision below seems to imply that the statute

may have been enacted as a gesture of modern day politi-

cal correctness. History belies the suggestion. In 1952,

when the statute was enacted, racial segregation was still

the prevailing practice — and often the law — in Virginia.“

Indeed, the General Assembly that originally banned cross

burning in 1952 was substantially the same legislature

as the one that soon initiated a campaign of “massive

S t In 1952, Virginia already had in place a statute banning

intimidation by written communications. Va. Code § 18-134 (1950)

(recodified in 1952 as § 18.1-257). The penalty for a violation included

up to five years in prison. The same maximum incarceration penalty

was adopted for violation of the cross burning ban. Va. Code § 18-349.4

(1952). The same statutory parallelism was in place in 1998, when

— +" acts of ay heny were committed. Both were class six

elonies. Compare Va. § 18.2-60(A) (1998) wi

rues ( ) with § 18.2-423 (1998).

* See, eg., Va. Code § 18-327 (1952) (repealed 1960

separation of “white” and “colored” at any ar Poni ye

other public assemblage; violation was misdemeanor); Va. Code § 20-54

(1950) (repealed 1968) (prohibited racial intermarriage); Va. Code § 22-

221 (1952) (repealed 1972) (“White and colored persons shal] not be

taught in the same school ... ”); Va. Code § 24-120 (1952) (repealed

1970) (required separate listings for “white and colored persons” who

failed to pay poll tax); Va. Code § 38-281 (1950) (repealed 1952)

(prohibited fraternal associations from having “both white and colored

members”); Va. Code § 53-42 (1950) (amended to remove “race” 1968)

(required racial separation in prison); Va. Code § 56-114 (1950) (re-

pealed 1975) (authorized State Corporation Commission to require

separate waiting rooms” for “white and colored races”); Va. Code § 56-

326 (1950) (repealed 1970) (required motor carries to “separate” their

“white and colored passengers,” violation was misdemeanor); Va. Code

: ope potoge ty —y 1970) (same for railroads); Va. Code

re 1970) (required

tax books for “whites” and scolored”).. a

resistance” in response to this Court’s decision in Brown v.

Board of Education, 347 U.S. 483 (1954). See generally,

Griffin v. County School Board, 377 U.S. 218, 221 (1964);

Harrison v. Day, 106 S.E.2d 636 (Va. 1959) (describing

“massive resistance” as legislatively mandated attempt to

close public schools rather than desegregate). Clearly, the

legislature’s purpose was not to usher in a new era of

racial equality, or to disfavor ideas of white supremacy.

The purpose was to prevent a particularly virulent form of

intimidation and thus to preserve law and order. It is a

purpose still legitimate today.

C. Even If There Was Also an Illegitimate Pur-

pose, the Legitimate Purposes Control.

Even if this Court were to decide that the legitimate

purpose of preventing intimidation was combined with

some illegitimate motive, the statute would still be consti-

tutional. This Court has rejected the idea that an illegiti-

mate motive will make a law invalid “no matter how small

a part [the] motivating factor may have played” in the

legislature’s decision. Renton v. Playtime Theatres, Inc.,

475 U.S. 41, 47 (1986) (citing O’Brien, 391 U.S. at 382-86).

Instead, where the “predominate intent” is unrelated to

the suppression of free expression, that legitimate motive

is “more than adequate” to uphold the statute. Renton, 475

U.S. at 48. Here the predominant intent — indeed, the

exclusive intent — was to prevent intimidation. Thus, the

statute is constitutional.

Given the obviously legitimate purpose, there is no

need to decide how large some hypothetical, illegitimate

motive must be before the resulting statute would be

invalid. Even so, it may be helpful to note again the

approach followed in Establishment Clause cases. Under

Lemon v. Kurtzman, 403 U.S. 602 (1971), this Court

requires statutes to have “a secular legislative pu ‘y

Id. at 612 (emphasis added). Statutes ne from mised

motives — some legitimate and some illegitimate — will not

be struck down based on a purpose test. “The Court has

invalidated legislation ... on the ground that a secular

purpose was lacking, but only when it has concluded there

was no question that the statute or activity was motivated

wholly by religious considerations.” Lynch v. Donnelly, 465

U.S. 668, 680 (1984) (emphasis added).” If this Court were

to consider legislative purpose, the same approach should

be followed here. An illegitimate purpose should not doom

an otherwise constitutional enactment unless there is no

evidence of a legitimate purpose. Because the statute is

facially neutral, and because it was motivated — in whole

or in part — by the legitimate purpose of preventing in-

timidation, it survives constitutional scrutiny.

Ill. CROSS BURNING CAN BE USED TO INTIMI-

DATE ANYONE; ANY NUMERICAL CORRELA-

TION BETWEEN CROSS BURNING AND

BIGOTRY DOES NOT UNDERMINE CONTENT-

NEUTRALITY.

. The court below did not find that cross burning is

limited to the Klan, or that the tactic can only be used by

* Justice O’Connor’s concurring opinion in Lynch takes a

what different tack, warning against reliance on aie nose” so

are de minimus. Lynch, 465 U.S. at 690-91 (O’Connor, J., concurring)

(expressing view that first prong is not satisfied by “mere existence of

some secular purpose, however dominated by religious purposes”). Yet

this cautionary note would not help respondents here, where the

legitimate purposes are obviously substantial.

persons espousing ideas of racial or religious bigotry. Nor

have respondents made such a suggestion. See generally,

Br. in Opp. to Cert. Indeed, this case would refute any

such claim. Two respondents — Elliott and O’Mara -

burned a cross to frighten a neighbor in Virginia Beach.

Yet, they are not Klansmen, nor do they have any dis-

cernible ideas on race, religion or any other topic. They

burned a cross on the neighbor’s lawn because he asked

questions about gunfire in Elliott's backyard. Elliott and

O’Mara did not have a political agenda, they had a per-

sonal grievance. People of any race can be frightened by

cross burnings. So intimidating was the incident in Carroll

County that one witness — who is Caucasian - was

brought to tears, fearing for the safety of her children and

home. J.A. 111.

A burning cross — standing alone and without expla-

nation — is understood in our society as a message of

intimidation. “(T]he pernicious message of such conduct

[is] a clear and direct expression of an intention to do one

harm, [and] constitutes a true threat envisioned by Watts

[v. United States] irrespective of racial, religious, ethnic or

like characteristics peculiar to the victim.” O’Mara, 535

S.E.2d at 179, J.A. 264. A white, conservative, middle-class

Protestant, waking up at night to find a burning cross

outside his home, will reasonably understand that some-

one is threatening him. His reaction is likely to be very

different than if he were to find, say, a burning circle or

square. In the latter case, he may call the fire department.

In the former, he will probably call the police.

Undoubtedly, many acts of intimidation by cross

burning are intertwined with expressions of racial or

religious bigotry. Yet, arguments based upon such numeri-

cal correlation cannot prevail. To begin, the record is

devoid of any quantitative evidence that might provide a

basis for statistical analysis. Moreover, even if the correla-

tion were assumed to be high, this Court has rejected a

statistical approach to constitutional questions arising

under the First Amendment. Decided last term, Zelman v.

Simmons-Harris, 122 S. Ct. 2460 (2002), was an Estab-

lishment Clause challenge to a school voucher plan en-

acted by the Ohio legislature. Although the challenged

statute was facially neutral, a higher percentage of par-

ticipating students were enrolled in religiously affiliated

schools. In one city, the number was ninety-six percent. Id.

at 2464. Opponents of the statute argued that this high

correlation undermined the religious neutrality appearing

on the statute’s face. The Court disagreed, saying that

“such an approach would scarcely provide the certainty

that this field stands in need of, nor can we perceive

principled standards by which such statistical evidence

might be evaluated.” Jd. at 2470 (quoting Mueller v. Allen,

463 U.S. 388, 401 (1983)). The Court also noted that a

statistical approach would lead to inconsistent results,

striking down statutes where the correlation seems too

high but leaving the same or similar statutes in place

where the correlation is deemed low enough to be accept-

able. Id. at 2470-71.

The same principle is at work here. The Virginia

statute is facially neutral. It bans cross burning by anycne

whose intent is to intimidate anyone for any reason. This

facial neutrality is not undermined by the supposedly high

correlation between such acts of intimidation and inter-

twined expressions of racial or religious bigotry. A numeri-

cal approach is precluded by the lack of principled

standards for evaluating what statistical evidence might

show. There is no way to draw a line based on statistics

other than to do so arbitrarily. A numerical approach is

also precluded by the need to avoid inconsistent results. It

would be a perverse outcome, indeed, if cross burning bans

were invalid in States where the tactic is aimed primarily

against minorities, but valid where the tactic is more

racially neutral in its application.

Zelman and Mueller are not the only cases where

members of this Court have rejected numerical correlation

as a tool for examining facially neutral statutes challenged

under the First Amendment. In Hill, there was a high

correlation between the prohibited activity — protests

outside health facilities — and opposition to abortions. Yet,

the statute was upheld as facially neutral. In their concur-

ring opinion, four Justices said:

It is important to recognize that the validity of

punishing some expressive conduct ... does not

depend on showing that the particular behavior

or mode of delivery has no association with a

particular subject or opinion.

* * *

There is always a correlation with subject and

viewpoint when the law regulates conduct that

has become the signature of one side of a contro-

versy. But that does not mean that every regula-

tion of such distinctive behavior is content-based

as First Amendment doctrine employs that term.

The correct rule, rather, is captured in the formu-

lation that a restriction is content-based only if it

is imposed because of the content of the speech.

Hill, 530 U.S. at 737 (Souter, J., joined by O’Connor,

Ginsberg and Breyer, JJ., concurring) (emphasis added).

Whether drawn from the Zelman majority or the Hill

concurrence, the same principles should apply here. Any

numerical correlation between intimidation by cross

burning and the expression of racial or religious bigotry is

irrelevant. Unlike the ordinance struck down ir R.A.V.,

the Virginia statute is neutral on its face. Thus, it is

constitutional.

The Virginia Supreme Court also suggested that the

Virginia statute is impermissibly content-based because,

while it bans the burning of crosses with intent to intimi-

date, it does not ban the burning of “other geometric

shapes,” such as “circles and squares.” Black, 553 S.E.2d

at 745, J.A. 281. Yet there is a good reason for focusing on

crosses. There is a history and practice of intimidation by

cross burning that has no counterpart with other geomet-

ric shapes. The record contains no evidence of anyone ever

burning a circle or square for any expressive purpose,

much less a purpose of intimidation. Indeed, the Com-

monwealth is unaware of a single reported American case

concerning a burning circle or a burning square used to

intimidate. In our society, a burning cross means intimida-

tion. By contrast, burning a circle or a square expresses

nothing.” As the Virginia Supreme Court recognized, “no

animating message is contained in such an act.” Black,

553 S.E.2d. at 745, J.A. 281. Given this concession, it is

difficult to understand why the Virginia Supreme Court

thought content discrimination was afoot. Indeed, it is not.

While there may be occasions in our society when other religious

symbols are burned, such acts of destruction — like the burning of the

United States flag - are typically underst. . «s dissent from the ideas

and institutions such symbols represent, not as attempts to intimidate.

Perhaps someday, somewhere, somebody in Virginia

may intimidate someone — and simultaneously express an

idea — by burning some geometric shape other than a

cross. But such speculation does not make the current law

invalid. “States adopt laws to address the problems that

confront them. The First Amendment does not require

states to regulate for problems that do not exist.” Burson

v. Freeman, 504 U.S. 191, 207 (1992)." The Virginia

statute seeks to deal with a tactic of intimidation that has

been a source of trouble in the past, without speculating

about future developments, and without trivializing cross

burning by equating it, say, with a burning Jack

O’Lantern impishly left on a neighbor’s porch at Hallow-

een.

Finally, the principle of content-neutrality is designed

to avoid the evil of a statute “lend[ing] itself” to “invidious

thought-control purposes.” Madsen, 512 U.S. at 794

(Scalia, J., joined by Kennedy and Thomas, JJ., concurring

in part and dissenting in part). However, “a statute that

restricts certain categories of speech only lends itself to

invidious use if there is a significant number of communi-

cations, raising the same problem that the statute was

enacted to solve, that fall outside the statute’s scope, while

others fall inside.” Hill, 530 U.S. at 723 (emphasis added).

” In RAV, the majority expressed concern about this passage

from Burson being converted into “the revolutionary proposition that

the suppression of particular ideas can be justified when only those

ideas have been a source of trouble in the past.” 505 U.S. at 396 n8

(emphasis added) (citing 505 U.S. at 405 (White, J., concurring in

judgment) and 505 U.S. at 434 (Stevens, J., concurring in judgment)).

Here it is not the suppression of ideas that is afoot, but the prevention

of intimidation.

There are no communications raising the same problem

that the cross burning ban was enacted to solve — and

certainly not a “significant number” of them. Nor did the

court below purport to identify any. The statute does not

lend itself to invidious use. It is content-neutral — and

constitutional.

IV. ALTERNATIVELY, IF THE VIRGINIA STAT-

UTE IS DEEMED CONTENT-BASED, IT IS

JUSTIFIED BY THE THREE EXCEPTIONS IN

R.A.V.

It is a familiar principle of First Amendment law that

content discrimination is generally prohibited. The Vir-

ginia statute complies with this principle. Even so, the

principle is “not absolute.” R.A.V., 505 U.S. at 387. More-

over, the principle “applies differently in the context of

proscribable speech than in the area of fully protected

speech.” Jd. (emphasis added). This is so because the

reason for the general prohibition has only limited rele-

vance in dealing with speech that can be constitutionally

proscribed:

The rationale of the general prohibition, after all,

is that content discrimination raises the specter

that the Government may effectively drive cer-

tain ideas or viewpoints from the marketplace.

But content discrimination among various in-

stances of a class of proscribable speech often

does not pose this threat.

Id. at 387-88 (internal quotation marks and citations

omitted). The Court then recognized three broad excep-

tions to the general rule against content-based distinc-

tions. Assuming arguendo that the Virginia cross burning

statute constitutes “content discrimination,” it neverthe-

less qualifies as constitutional under all three exceptions.

A. Cross Burning Is an Especially Virulent

Form of Intimidation.

In laying out its first exception, R.A.V. said that a

subclass of proscribable speech may be singled out when it

manifests, in some extreme form, the concerns that allow

the whole class to be proscribed:

When the basis for the content discrimination

consists entirely of the very reason the entire

class of speech at issue is proscribable, no signifi-

cant danger of idea or viewpoint discrimination

exists. Such a reason, having been adjudged neu-

tral enough to support exclusion of the entire

class of speech from First Amendment protection,

is also neutral enough to form the basis of dis-

tinction within the class.

R.A.V., 515 U.S. at 388 (emphasis in original). The Court

then explained its rationale with an example:

* In State v. Talley, 858 P.2d 217 (Wash. 1993), the Washington

Supreme Court rejected a R.A.V.-based challenge to a statute that

prohibited various acts, including cross burning with intent to

intimidate another person.” Unlike the Virginia statute, the Washing-

ton law added certain content-based qualifications. The intent to

intimate had to be related to “that person’s race, color, religion,

ancestry, national origin, or mental, physical, or sensory handicap.

Washington Code § 9A.36.080(1). While the Washington statute was

obviously not content-neutral, the Court nevertheless found the law to

be justified by each of the three R.A.V. exceptions. If these exceptions

save the Washington statute, a fortiori they should also save the

Virginia law.

A State might choose to prohibit only that ob-

scenity which is the most patently offensive in its

prurience — i.e., that which involves the most las-

civious displays of sexual activity. But it may not

prohibit, for example, only that obscenity which

includes offensive political messages.

Id. (emphasis in original). Just as a State may choose to

prohibit only that obscenity which is most lascivious, it

may also choose to enact a statute focusing on acts of

intimidation that are most virulent — that is to say, acts

that demonstrate with “special force” the reasons why

“threats of violence are outside the First Amendment.” Id.

The Court has given three such reasons: “protecting

individuals [1] from the fear of violence, [2] from the

disruption that fear engenders, and [3] from the possibility

that the threatened violence will occur.” Jd. Cross burning

operates with “special force” with respect to all three. See

In re Steven S., 31 Cal. Rptr. 2d 644, 650 (Cal. App. 1994)

(“(U]nauthorized cross burning on another person’s private

property .. . invokes all three of the exceptions set forth in

R.A.V.”).”

Although cross burning is sometimes called “hate

speech,” that label is not quite right. It is something far

worse. “Hate speech” need only make a statement about

* While the California statute applies only when the cross burning

occurs without permission on the property of another, it is difficult to

see any practical distinction between burning a cross in someone's front

lawn and burning the same cross in the public right-of-way just outside

the victim’s property. Moreover, while cross burning at a secluded Klan

rally may intimidate no one, there is intimidation when the cross is

burned — as it was in Carroll County - in a place visible to neighbors

and passers-by.

the attitudes of the speaker. Cross burning is a form of

intimidation — a threat of harm. It makes a statement

about harm one or more listeners may expect to suffer. It

is a tactic for putting someone in fear for his life or safety,

and it is an especially virulent method for doing so. See Jn

re Steven S., 31 Cal. Rptr. 2d at 649, (“[MJalicious cross

burning is directed at individuals ... and it goes far

beyond hurt feelings, offense, or resentment. It causes

terror in specific victims.”)

It is no accident that the Ku Klux Klan - grand

masters of intimidation — chose a burning cross to do their

work. Such a structure instills fear in a way that mere

words can rarely equal.” As this Court has recognized, use

of a symbol bypasses the need for the victim to read and

decipher the message, so as to make the effect penetrating

and immediate. It is a “short cut from mind to mind.”

Johnson, 491 U.S. at 417. The symbol of a burning cross is

especially powerful. It takes fire - an archetype of destruc-

tion — and marries it with a deeply evocative icon of

Christianity, transmogrifying a sign of heavenly assurance

into a hellish threat. The impact is underscored when the

cross is burned at night — as is usually the case — when the

cover of darkness hides the identity of the perpetrators

and taps into the basic human fear of the unknown.

Moreover, the business of constructing, transporting,

erecting and igniting a cross suggests more than the effort

of a single individual. It suggests the presence of a group,

whose size and membership are unknown, but whose

* Even so, written threats to kill or do bodily harm are also

prohibited by Virginia law. Va. Code § 18.2-60(A).

malevolence — and whose resolve to act on that malevo-

lence — is plain enough. The flames are not only a meta-

phor for destruction, they demonstrate a means of

destruction. By burning a cross in public view, the perpe-

trators step beyond words, even beyond conventional

symbolism, and provide a physical example of what may

come. By an act of destruction, they assert their ability —

and their will — to engage in further acts of destruction.

This is especially so when the victim’s own property has

been invaded.

The message of a cross burning is this:

We may kill you, or hurt you badly. Believe

it. We have already come to your home, and

we have done this hateful and dangerous

thing in front of you. So, we don't just talk.

We act. Next time we may torch your home.

Or bomb your car. Or shoot into your win-

dows. No one stopped us when we burned the

cross. No one will stop us next time either.

Fear us.

These considerations make cross burning an especially

fearsome weapon, thus implicating with “special force” the

first reason why threats are constitutionally proscribable —

i.e. “fear of violence.” R.A.V., 505 U.S. at 388.

Another reason why threats are proscribable is to

guard against the “disruption that fear engenders.” Jd.

This is why it is constitutional to prohibit people from

yelling “Fire!” in a crowded theater, Schenck v. United

States, 249 U.S. 47, 52 (1919) (Holmes, J.), or to prohibit

threatening the life of the President, R.A.V., 505 U.S. at

388. If this Court were to decide that the historical usage

of cross burning somehow imparted content not found in

the neutrally worded text, an examination of the same

historical usage would reveal the special sort of disruption

that this intimidating tactic engenders. As one legislature

expressly found, “cross burnings historically and tradi-

tionally have been used to threaten, terrorize, intimidate,

and harass African Americans and their families.”” Wash-

ington Code § 94.36.078. In other words, it has been a

tactic to keep African-Americans in the status of second

class citizens, thereby disrupting the basic principles

espoused by the Declaration of Independence (“all men are

created equal”) and sought to be accomplished by the

Thirteenth and Fourteenth Amendments. Although cast in

universal terms, these amendments were prompted by the

harshness to which persons of African descent were

historically subjected. See Nixon v. Condon, 286 U.S. 73,

89 (1932). Surely to disrupt the operation of such fande-

mental principles is an example of the “special force

contemplated by R.A.V. as a justification for content-based

distinctions.

Yet another reason why threats are proscribable is to

avoid “the possibility that the threatened violence will

occur.” R.A.V., 505 U.S. at 388. The reason likewise applies

with “special force” to cross burnings. As the Florida

Supreme Court observed:

been inex-

[Ujnauthorized cross-burning . . has

tricably linked in this state’s history to sudden

= is no different when the cross is burned, not at a

as. 3, +. at a Klan rally visible to all passers-by. In such a

case the incident is understood to be a threat against those minors

whom the Klan has historically sought to cower. This is illustra -

the talk about “random[ly) shoot[ing) the blacks” that accompanied

cross burning in Carroll County. J.A. 109.

and precipitous violence — lynchings, shootings,

whippings, mutilations, and home-burnings. The

connection between a flaming cross in the yard

and forthcoming violence is clear and direct. A

more terrifying symbolic threat for many Floridi-

ans would be difficult to imagine.

T.B.D., 656 So. 2d at 481 (emphasis added). If Virginia’s

own history has been less sanguinary than some States,

its General Assembly is no less aware of the “clear and

direct” connection between cross burning and forthcoming

violence.

In sum, cross burning presents a special case of

intimidation. It is especially terrifying, especially disrup-

tive, and a special harbinger of violence. There is simply

no counterpart in our society. This was the judgment of the

Virginia General Assembly when, a half century ago, it

passed the cross burning statute, even though the Com-

monwealth’s public policy was then one of segregation.

There is no reason to overturn its judgment now. This

Court should find that the statute qualifies for the first

R.A.V. exception and uphold the law as constitutional.

B. As a Subclass of Intimidation, Cross Burning

Has an Array of Secondary Effects.

For the second R.A.V. exception, this Court turned to

the “secondary effects” doctrine. It said:

Another valid basis for according differential

treatment to even a content-defined subclass of

proscribable speech is that the subclass happens

to be associated with particular “secondary ef-

fects” of the speech, so that the regulation is “jus-

tified without reference to the content of the ...

speech.”

Id. at 389 (quoting Renton v. Playtime Theatres, Inc., 475

U.S. 41, 48 (1986)). St. Paul sought to invoke this doctrine,

arguing that the impact of fighting words on historically

disfavored minorities was a “secondary effect” that the

ordinance was justified in trying to prevent. The Court

disagreed, noting that “[lJistener’s reactions” do not

qualify as “secondary effects.” Id. at 394 (quoting Boos v.

Barry, 485 U.S. 312 (1988)). “The emotive impact of speech

on its audience is not a ‘secondary effect.’” Jd.

By contrast, the Virginia statute - which deals not

with mere fighting words, but with virulent intimidation —

presents genuine examples of secondary effects akin to

those identified by the Court in Renton. In Renton, the

Court approved the challenged ordinance because it was —

designed to “prevent crime, protect the city’s retail trade,

maintain property values, and generally (protect) and

[preserve] the quality of [the city’s) neighborhoods, com-

mercial districts, and the quality of urban life.’” Jd. at 48.

Similarly, the Virginia cross burning statute is intended

not just to prevent intimidation of the victim (which,

under Boos, may or may not be a secondary effect”), but to

preserve law and order in the surrounding community.

J.A. 326. Cross burnings are historically associated not

with threatened fisticuffs or other minor assault, but with

® While emotive reaction is not a secondary effect, one court has

held that “the fear and intimidation of a victim of a malicious cross

burning crosses the line between emotive reaction and tangible injury.”

In re Steven S., 31 Cal. Rptr. 2d at 651. See also Talley, 858 P.2d at 226.

threats to burn, lynch, behead or otherwise murder inno-

cent victims. It is not hard to imagine how unchecked

spates of intimidation by cross burning could spark re-

taliation, retard commerce, depress property values and

generally transform our society into one reminiscent of

Northern Ireland or the Balkans. It was to preserve law

and order — and thereby “insure domestic tranquility” -

that the General Assembly saw fit to ban cross burning

fifty years ago. U.S. Const., Preamble. There is no reason

to question its judgment now.

The applicability of the secondary effects doctrine is

underscored by the similarity between this case and other

aspects of Renton. There the adult theater argued that the

town’s ordinance was constitutionally defective because it

“failled] to regulate other kinds of adult businesses that

are likely to produce secondary effects similar to those

produced by adult theaters.” 475 U.S. at 52. Such other

businesses presumably included other forms of expressive

activity, such as adult bookstores and adult video stores.

Yet, the Court rejected the argument, explaining its

position with a logic that applies equally to the case at bar:

There is no evidence that, at the time the Renton

ordinance was enacted, any other adult business

was located in, or was contemplating moving

into, Renton ... . We simply have no basis on

this record for assuming that Renton will not, in

the future, amend its ordinance to include other

kinds of adult businesses that have been shown

to produce the same kinds of secondary effects as

adult theaters.

Id. at 52-53 (quoting Williamson v. Lee Optical Co., 348

U.S. 483, 488-89 (1955)). Similarly, there is no evidence

that, at the time the Virginia statute was enacted, any

other practice of intimidation was abroad in the land with

the same capacity to undermine law and order. Nor is

there evidence of any such practice today, nor is there any

reason to believe that, if some new and comparably in-

timidating practice were to raise its head in the future,

that the General Assembly would not amend Virginia law

accordingly.

C. No Official Suppression of Ideas Is Afoot.

For its third exception, R.A.V. describes a broad

“catch-all” category of content-based distinctions, saying

“it may not even be necessary to identify any particular

‘neutral’ basis, so long as the nature of the content dis-

crimination is such that there is no realistic possibility

that official suppression of ideas is afoot.” 505 U.S. at 390.

Here, no such possibility exists.

Assuming arguendo that the Virginia statute contains

some form of content-based distinction, it nevertheless

qualifies for this third exception as shown by an array of

pertinent facts. First, the statute contains no content-

based categories. It bans all cross burning with intent to

intimidate not just cross burning that conveys racial and

religious bigotry. See T.B.D., 456 So. 2d at 481. Second, the

law was originally enacted by a legislature that embraced

a policy of racial inequality. Suppressing such ideas could

not have been its purpose. Third, while the Common-

wealth no longer adheres to a policy of segregation, Vir-

ginia law still leaves ample opportunity for such ideas to

be expressed — as the First Amendment requires ~ 80 long

as they are not intertwined with intimidation. Simply

causing “resentment” or “ill-feeling” is not enough to run

afoul the Virginia statute. Fourth, the plausibility of

the asserted purpose — to preserve law and order — is

confirmed by the spate of cross burnings that preceded the

law. Fifth, no comparable form of intimidation was being

practiced — not in 1952, and not now. Sixth, other provi-

sions of Virginia law ban intimidation using the written

word. Va. Code § 18.2-60(A). To treat cross burning as

intimidation is simply to recognize the “shorthand” al-

ready in use and already understood by perpetrator and

victim alike. Seventh, while the statute does not ban the

burning of other geometric shapes, “no animating message

is contained in such acts.” Black, 553 S.E.2d at 745, J.A.

281. In sum, there is no “realistic possibility” that official

suppression of ideas is afoot. Cross burning with the

intent to intimidate “[a]t its core, is an act of terrorism

that inflicts pain on its victim, not the expression of an

idea.” In re Steven S., 34 Cal. Rptr. 2d at 651. Indeed, this

combination oi: ‘acts “refute[s] the proposition that the

selectivity of the restriction is ‘even arguably conditioned

upon the sovereign’s disagreement with what a speaker

may intend to say.’” Id. at 390 (quoting Metromedia, Inc. v.

San Diego, 453 U.S. 490 (1981) (Stevens, J., dissenting in

part) (internal marks and citation omitted). For this

reason, too, the Virginia statute is constitutional.

V. THE VIRGINIA STATUTE IS NOT OVER-

BROAD.

A. The Lower Court Misunderstood This

Court’s Overbreadth Jurisprudence.

The Virginia Supreme Court also ruled that the cross

burning statute is void under the overbreadth doctrine. In

so ruling, it relied — mistakenly — on Justice White's

concurrence in R.A.V. Black, 553 S.E.2d at 745-46,

J.A. 283-84. Despite the narrowing construction by the

Minnesota Supreme Court, Justice White said the law still

“criminalize[d] a substantial amount of expression that —

however repugnant — is shielded by the First Amend-

ment.” R.A.V., 505 U.S. at 413 (White, J., joined by Black-

mun, Stevens, and O’Connor, JJ., concurring). The court

below misread Justice White and misunderstood this

Court’s overbreadth jurisprudence. Indeed, what the court

below called “overbreadth” bears little resemblance to the

overbreadth doctrine explained by this Court.

Unlike the concurrence in R.A.V.,, the Virginia Su-

preme Court did not focus on the statute’s prohibitory

terms. Instead, it looked at the statutory inference, which

allows — but does not require — a jury to infer an intent to

intimidate based on the act of cross burning alone.” The

court did not doubt that the prosecutor still must prove

every element of the offense — including intent — beyond a

reasonable doubt. Nor did the court otherwise suggest that

the statute fails to meet the constitutional requirements

that ordinarily govern statutory presumptions. See Barnes

v. United States, 412 U.S. 837, 842 (1973).” Instead, the

court focused on the mere possibility of arrest and prosecu-

tion. Where a cross is burned in a place described by the

statute, the court said,

* Added in 1968, the last paragraph of the statute provides: “Any

such burning of a cross shall be prima facie evidence of an intent to

intimidate a person or group of persons.” Va. Code § 18.2-423. See also

1968 Va. Acts ch. 350.

* A statutory inference is constitutional if (i) the state retains the

burden of proof on the fact to be presumed, and (ii) “it can at least be

said with substantial assurance that the presumed fact is more likely

than not to flow from the proved fact on which it is made to depend.”

Barnes, 412 U.S. at 842-43 (quoting Leary v. United States, 395 U.S. 6,

36 (1969)) (internal quotation marks omitted). The inference in the

Virginia statute clearly meets this test.

the act of burning a cross alone, with no evidence

of intent to intimidate, will nonetheless suffive

for arrest and prosecution and will insulate the

Commonwealth from a motion to strike the evi-

dence at the end of its case-in-chief. That the

trier of fact ultimately finds the actor not guilty

of the offense is little consolation after arrest and

prosecution for speech or expressive conduct that

is otherwise protected. Arrest for, and prosecu-

tion of, otherwise protected speech, with no evi-

dence of a critical element of the offense other

than a statutorily supplied inference, chills free

expression. (The Virginia statute] sweeps within

its ambit for arrest and prosecution, both pro-

tected and unprotected speech. As such it is

overbroad.

553 S.E.2d at 746, J.A. 284-85 (citations and footnotes

omitted). In other words, what concerned the court was

the possibility that an innocent cross-burner — 1.e., one who

burns a cross without an intent to intimidate — might still

be arrested and prosecuted. The conduct of such a person

is not barred by the statute; yet, the court thought the

prospect of a trial might chill innocent expression, and

that the mere possibility of such an occurrence was suffi-

cient to make the Virginia statute overbroad. This is error.

The court erred in its understanding of both the

statutory presumption and the overbreadth doctrine.

Contrary to what the court tacitly assumed, the presump-

tion does not purport to direct police officers when to make

arrests, nor does it purport to bind prosecutions in the

exercise of their discretion. Instead, it comes into play only

at trial, where it may form the basis of one jury instruction

among many.

Moreover, the mere possibility that someone might be

mistakenly charged does not render a statute overbroad.

Indeed, if the lower court were correct in its app» ach, it

would be difficult for any regulation of expressive cunduct

to withstand scrutiny. There will always be cases where

conduct that is lawful initially appears culpable and

results in charges that are ultimately dismissed. For

example, this Court has held that government may consti-

tutionally prohibit possession of child pornography, even

where the same images would not be proscribable as ~

obscene if their subjects were adults. Ferber v. New York,

458 U.S. 747, 764 (1982). Yet, when confronted with the

printed image of a youthful individual engaged in sex, law

enforcement officers necessarily must evaluate whether

the individual appears to be a minor before deciding

whether to make an arrest. Sometimes the evaluation may

be difficult. Sometimes the evaluation may be mistaken.

Yet, the possibility that law enforcement might err does

not make these important statutes “overbroad.” Pornogra-

phers who prefer “barely legal” models — those who re-

cently turned 18 and who look even younger — may be

deterred in some instances, or they may find it advisable

to surround their work with assurances of their subjects’

adult status. Yet, so long as the statute’s prohibitory terms

do not reach too far, these collateral effects are not the sort

of “chill” the overbreadth doctrine is designed to prevent.

* Such an instruction was given in the Black case, J A. at 146, but

not in Elliott’s trial. O’Mara, of course, was not tried by a jury.

B. Under This Court’s Overbreadth Jurispru-

dence, the Virginia Statute Is Not Over-

broad.

This Court’s overbreadth doctrine contains two com-

; onents. The first component addresses standing, while

the second provides substantive rules for evaluating the

constitutionality of a statute. Under the traditional rule of

standing, “constitutional rights are personal and may not

be asserted vicariously.” Broadrick v. Oklahoma, 413 U.S.

601, 610 (1973). Thus, if a person’s conduct may be consti-

tutionally prohibited by statute, he is unable to challenge

the statute on the grounds that the same statute might be

applied unconstitutionally to someone else. Jd. The over-

breadth doctrine alters this traditional rule in certain

limited circumstances. In the area of the First Amend-

ment, “[ljitigants ... are permitted to challenge a statute

not because their own rights of free expression are vio-

lated, but because ... the statute’s very existence may

cause others not before the court to refrain from constitu-

tionally protected speech or expression.” Jd. at 612. In

other words, where the statute in question might chill

speech protected by the First Amendment, those who are

before the court have standing to challenge the statute on

its face, even if their own conduct is not so protected.

While the court below found respondents to have such

standing, this is not where its error occurred.

Rather, the lower court erred on the second component

- the substantive rules of overbreadth. The overbreadth

doctrine is designed to invalidate statutes which, by their

very terms, prohibit constitutionally protected expression

and which do so routinely. Thus, in order for a statute to

be so invalidated under this doctrine, “the overbreadth .. .

must not only be real, but substantial as well, judged in

relation to the statute’s plainly legitimate sweep.” Id. at

615 (emphasis added). This rule applies with particular

force where, as here, “conduct and not merely speech is

involved.” Id. On both of these issues — whether over-

breadth is real and whether it is substantial — the Virginia

Supreme Court erred.

1. There Is No Real Overbreadth.

In order for overbreadth to be real, the statute's

prohibitory terms must be so broad — or so vague — as to

forbid expression that is constitutionally protected. See,

e.g., Grayned v. City of Rockford, 408 U.S. 104, 114 (1972)

(holding that statute is overbroad “if in its reach it prohib-

its constitutionally protected conduct”); Ferber, 458 U.S. at

771 (“On most occasions involving facial invalidation, the

Court has stressed the embracing sweep of the statute

over protected expression.”) By its terms, the Virginia

statute would not apply if someone burned a cross for

some wholly innocent purpose. It applies only when the

cross is burned with the intent to intimidate someone.

There are no circumstances where such intimidation is

constitutionally protected. See R.A.V., 505 U.S. at 388

(“[T]hreats of violence are outside the First Amendment.”).

Thus, the Virginia statute does not reach any protected

expression. There is no real overbreadth.

2. There Is No Substantial Overbreadth.

Not every case of overbreadth is fatal. As the Broad-

rick Court explained, overbreadth analysis is “strong

medicine” and should be applied “sparingly and only as

last resort.” 413 U.S. at 615. Indeed, before a statute will

be invalidated under the overbreadth doctrine, the

overbreadth must be substantial. Id. at 613.” As this

Court, speaking through Justice White, observed:

The premise that a law should not be invalidated

for overbreadth unless it reaches a substantial

number of impermissible applications is hardly

novel. On most occasions involving facial invali-

dation, the Court has stressed the embracing

sweep of the statute over protected expression.

* * *

The requirement of substantial overbreadth is

directly derived from the purpose and nature of

the doctrine. While a sweeping statute, or one in-

capable of limitation, has the potential to repeat-

edly chill the exercise of expressive activity by

many individuals, the extent of deterrence of pro-

tected speech can be expected to decrease with

the declining reach of the regulation.

Ferber, 458 U.S. at 771-72 (emphasis added). See id. at 772

n.27.

Here the Virginia Supreme Court gave no analysis for

why it thought any perceived overbreadth was substantial.

Indeed, there is no basis for any such conclusion. Even if

the possibility of erroneous prosecutions played a role in

overbreadth analysis, there is nothing to show that the

* In Broadrick, Justice Brennan sought to wield the overbreadth

doctrine more aggressively than the majority, dissenting there because

he thought the Court should strike down the statute that the Broadrick

majority decided to uphold. Yet, as Justice Brennan observed, the Court

has “never held that a statute should be held invalid on its face merely

because it is possible to conceive of a single impermissible application,

and in that sense a requirement of substantial overbreadth is already

implicit in the doctrine.” 413 U.S. at 630 (Brennan, J., dissenting).

48 49

number of such errors would be substantial under the C. If the Presumption abo

° t Inte -

Virginia statute. As the Florida Supreme Court held in date Renders ee Statute eed ——

rejecting an overbreadth challenge to that State’s cross This Court Should Sever the Presumption

burning law: “Although one might be able to imagine a from the Remainder of the Statute.

hypothetical situation wherein the statute could be

impermissibly applied, the threat of overbreadth is specu-

lative at best and is insufficiently substantial to invalidate

the statute on its face.” T.B.D., 656 So. 2d at 482.” Here,

If the Court agrees that the statute’s prohibitory

terms are constitutional — but concludes that the statutory

presumption is not — the statute should not be stricken on

its face. Instead, the presumption should be severed and

too, the possibility that someone might burn a cross for the rest of the statute allowed to stand.” Severability is a

reasons other than intimidation - and also be charged question of state law. See United States Dep't of Treasury v.

under the Virginia statute - is speculative at best. In Fabe, 508 U.S. 491, 509-10 (1993). The Virginia law in this

challenging this statute under the overbreadth doctrine, area was recently explained by the Fourth Circuit:

respondents “bear the heavy burden of demonstrating that

the [statute] forbids a substantial amount of valuable or

harmless speech.” Ashcroft v. Free Speech Coalition, 122

S.Ct. 1389, 1410 (2002) (O'Connor, J., joined by

Virginia’s General Assembly has enacted a statu-

tory provision dealing with severability of sec-

tions of the Virginia Code. Section 1-17.1 of the

Rehnquist, C.J., and Scalia, J., concurring in part and a ph tere = eg ¥ it ees aes om

dissenting in part) (emphasis added); Reno v. A.C.L.U., or more statutes or provisions must operate in

512 U.S. 844, 896 (1997) (O'Connor, J., joined by accord with one another.” In other words, the

Rehnquist, C.J., concurring in part and dissenting in part). Virginia legislature has stated clearly that courts

Assuming arguendo that such possibilities might arise, it are now to apply a presumption of severability

cannot be seriously suggested that “these arguably im- unless two provisions of a statutory section must

permissible applications of the statute amount to more operate together.

than a tiny fraction of the materials within the statute's Sons of Confederate Veterans, Inc. v. Comm’r, 288 F.3d 610,

reach.” Ferber, 458 U.S. at 773. Thus, to say that the 627 (4th Cir. 2002) (emphasis in original). Thus, this Court

Virginia statute is substantially overbroad is wholly

without merit.

* In terms of relief for these respondents, this would mean, at

most, that Black, who pled “not guilty,” would be retried without the

Commonwealth’s having the benefit of the jury instruction regarding an

inference of intent. J.A. 146. The conviction of O’Mara, who pled

“guilty,” would stand. So would the conviction of Elliott, who pled “not

guilty” but whose jury did not receive an instruction based on the

statutory presumption.

” See also In re Steven S., 31 Cal. Rptr. 2d at 651, where the

California Court of Appeals reached a similar result.

must apply a presumption of severability to the cross-

burning statute’s presumption of intent. There is no

reason why such presumption of intent must operate in

accord with the remaining prohibitory terms, especially

since the presumption of intent was not added until

sixteen years after the original enactment. 1968 Va. Acts

ch. 350. Thus, if this Court finds the statutory presump-

tion to be invalid under the overbreadth doctrine, it can be

~ and must be — severed from the rest of the statute. More

importantly, however, there is no overbreadth. The statute

is constitutional as written.

CONCLUSION

For the foregoing reasons, the judgment of the Vir-

ginia Supreme Court should be reversed.

Respectfully submitted,

JERRY W. KILGORE

Attorney General of Virginia

WILLIAM H. HURD

State Solicitor

Counsel of Record

MAUREEN RILEY MATSEN

WILLIAM E. THRO

Deputy State Solicitors

ALISON P. LANDRY

CurRistTy A. MCCORMICK

Assistant Attorneys General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436 (voice)

(804) 371-0200 (facsimile)

August 9, 2002

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.