Amicus Curiae Brief — Virginia v. Black

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No. 01-1107

In the Supreme Court of the United States

COMMONWEALTH OF VIRGINIA, PETITIONER

BARRY ELTON BLACK, RICHARD J. ELLIOTT

AND JONATHAN O’MARA

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

THEODORE B. OLSON

Solicitor General

Counsel of Record

RALPH F. BoD, JR.

Assistant Attorney Generai

MICHAEL R. DREEBEN

Deputy Solicitor General

BARBARA MCDOWELL

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

LINDA F. THOME

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a state statute that prohibits the burning of a

cross with the intent to intimidate violates the First Amend-

ment.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument

I. The United States permissibly regulates cross

burning, when intended to threaten or intimidate,

under statutes that are directed at conduct with-

out regard to its expressive content

II. A State may permissibly regulate cross burning,

when intended to threaten or intimidate, under a

statute that applies exclusively to that conduct .........

A. The Virginia statute is a regulation of conduct—

the intentional use of cross burning as a tool of

intimidation—not a regulation of expression

B. The Virginia statute poses no danger of idea

or viewpoint discrimination because the same

reasons that justify a ban of all intimidating

expression justify a ban of intimidation by

cross burning

Conclusion

Appendix

TABLE OF AUTHORITIES

Cases:

Anderson v. Boston Sch. Comm., 105 F.3d 762 (Ist

Cir. 1997)

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986)

Boos v. Barry, 485 U.S. 312 (1988)

Bose Corp. v. Consumers Union of United States, Inc.,

466 U.S. 485 (1984)

Brown v. Board of Educ., 347 U.S. 483 (1954)

Capitol Square Review & Advisory Bd. v. Pinette,

515 U.S. 753 (1995)

(III)

F S&

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)

Clark v. Community for Creative Non-Violence, 468

U.S. 288 (1984)

Cox v. State, 585 So. 2d 182 (Ala. Crim. App. 1991),

cert. denied, 503 U.S. 987 (1992) 4

Frieéme i v. Rogers, 440 U.S. 1 (1979) 24

Frisby v. Schultz, 487 U.S. 474 (1988) 29

Hernandez v. Commonwealth, 406 S.E.2d 398 (Va.

Ct. App. 1991), habeas corpus denied sub nom.

Hernandez v. Superintendent, 800 F. Supp. 1344

(E. D. Va. 1992), appeal dismissed, 8 F.3d 818 (4th

Cases—Continued: Page

Cir. 1993), cert. denied, 510 U.S. 1119 (199 23

Loving v. Virginia, 388 U.S. 1 (1967) 29

Ohralik v. Ohio State Bar Ass'n, 436 US. 447 (1978) ..... 15

People v. Carr, 97 Cal. Rptr. 2d 143 (Ct. App. 2000) 13

People v. Steven S., 31 Cal. Rptr. 2d 644 (Ct. App.

1994) 14, 24, 28

R. A V. v. City of St. Paul, 505 U.S. 377 (1992) ............ passim

State v. Miller, 629 P.2d 748 (Kan. Ct. App. 1981) .......... 14

State v. Ramsey, 430 S.E.2d 512 (S.C. 1993) 21

State v. Sheldon, 629 A.2d 753 (Md. 1993) 21

Sutton v. Commonwealth, 324 S.E.2d 665 (Va.

1985) 11,21

Texas v. Johnson, 491 U.S. 397 (1989) 15, 25

United States v. Eichman, 496 U.S. 310 (1990) 26

United States v. Gilbert, 813 F.3d 1523 (9th Cir.),

cert. denied, 484 U.S. 860 (1987) 12

United States v. Guest, 383 U.S. 745 (1965) 4

United States v. Hanna, 293 F.3d 1080 (9th Cir.

2002) 12

United States v. Hayward, 6 F.3d 1241 (7th Cir.

1993), cert. denied, 511 U.S. 1004 (1994) 1, 17, 26

United States v. J.H.H., 22 F.3d 821 (8th Cir.

1994) 11,17

Cases—Continued: Page

United States v. Johns, 615 F 2d 562 (5th Cir.),

cert. denied, 449 U.S. 829 (1980) 17

United States v. Magleby, 241 F.3d 1306 (10th Cir.

2001) 1

United States v. McDermott, 29 F.3d 404 (8th Cir.

1994) 4,11,14

United States v. O’Brien, 391 U.S. 367 (1968) ............ 9, 23, 25

United States v. Pospisil, 186 F 3d 1023 (8th Cir.

1999), cert. denied, 529 U.S. 1089 (2000) 4

United States v. Stewart, 65 F.3d 918 (11th Cir.

1995), cert. denied, 516 U.S. 1134 (1996) 1,17

United States v. Wood, 780 F.2d 955 (11th Cir.),

cert. denied, 476 U.S. 1184 (1986) 17

United S ates v. Woodrup, 86 F.3d 359 (4th Cir.),

cert. denied, 519 U.S. 944 (1996) 11

Watts v. United States, 394 U.S. 705 (1969) 19, 26

Williams v. Commonwealth, 72 S. W. 2d 31 (Ky. 1934) ... 14

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483

(1955) 24

Wisconsin v. Mitchell, 508 U.S. 476 (19983) . 8, 10, 16, 17,

18, 19, 20, 24, 29

U.S. Const. Amend. I passim

Fair Housing Act of 1968, 42 U.S.C. 3601 et seq. 14

42 U.S.C. 3631 passim

42US.C. 3631(a) 8-9, 17, 19

Flag Protection Act of 1989, Pub. L. No. 101-131,

103 Stat. 777 26

18 U.S.C. 112(b) 18

18 U.S.C. 112(b\(1) 18

18 U.S.C. 112(b)(2) 18

18 U.S.C. 241 2, 8, 11, 13, 14, 17, 18, 19, 1a

18 U.S.C. 242 8, 16, 18, la

Statutes, regulation and rule—Continued: Page Miscellaneous—Continued: Page

18 U.S.C. 245(b) 14, 2a Wyn C. Wade, The Fiery Cross: The Ku Klux

18 U.S.C. 245(b\(2\(B) 14 Klan in America (1987) 3, 4. 14

18 U.S.C. 831(a)(4) 12 Juan Williams, Eyes on the Prize: America’s Civil

18 U.S.C. 1503 12

18 U.S.C. 1512(b) 12

18 U.S.C. 1860 12

18 U.S.C. 2113(a) 12

18 U.S.C. 2231(a) 12

42 U.S.C. 1981 16

42 U.S.C. 1982 14, 16, 17, 6a

42 US.C. 2000e-2 16

1952 Va. Acts. ch. 483 5

Va. Code Ann. § 18.2-423 (Michie 1996) 2, 5, 20, 8a

29 C.F.R. 1604.11 (1991) 16

11th Cir. Pattern Jury Instruction—Criminal Cases

(1997) 11

Miscellaneous:

Black s Law Dictionary (7th ed. 1999) 1¹

Robert A. Caro, The Years of Lyndon Johnson:

Master of the Senate (2002) 4

Richard Kluger, Simple Justice (1975)

Frederick M. Lawrence, Punishing Hate: Bias

—

Crimes Under American Law (1999) 23

Nancy MacLean, Behind the Mask of Chivalry: The

Making of the Second Ku Klux Klan (1994) 3

Michael Newton & Judy Newton, The Ku Klux

Klan: An Encyclopedia (1991) 3,4

Leonard S. Rubinowitz & Imani Perry, Crimes Without

Punishment: White Neighbors’ Resistance to Black

Entry, 92 J. Crim. L. & Criminology 335 (Fall 2001-

Winter 2002) 3,5

S. Rep. No. 721, 90th Cong., Ist Sess. (1967) 28

Symposium: Civil Rights Law in Transition,

27 Fordham Urb. LJ. 1109 (Apr. 2000) 28

In the Supreme Court of the Anited States

No. 01-1107

COMMONWEALTH OF VIRGINIA, PETITIONER

Vv.

BARRY ELTON BLACK, RICHARD J. ELLIOTT

AND JONATHAN O’MARA

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

The United States, like the Commonwealth of Virginia,

prosecutes persons who burn crosses, or conspire to do so, in

order to intimidate others. See, eg., United States v.

Magleby, 241 F.3d 1306 (10th Cir. 2001); United States v.

Stewart, 65 F.3d 918 (11th Cir. 1995), cert. denied, 516 U.S.

1134 (1996); United States v. Hayward, 6 F.3d 1241 (7th Cir.

1993), cert. denied, 511 U.S. 1004 (1994). The United States

does so under statutes that, in contrast to the Virginia

statute here, do not focus exclusively on intimidation by

cross burning, but instead generally prohibit the use of force

or threats of force to intimidate a person because of his race

(or other protected status) and his exercise of federal hous-

ing rights, see 42 U.S.C. 3631, or generally prohibit con-

spiracy to intimidate a person in the exercise of federal

(1)

rights, see 18 U.S.C. 241. The federal statutes and the

Virginia statute share the common purpose of preventing

conduct that instills fear in its victims, disrupts the life of the

community, and increases the potential for violence. Such

statutes are constitutional under the First Amendment even

though, in some instances, they reach conduct that may be

intended not only to intimidate, but also to express an idea

or viewpoint.

The United States has a significant interest not only in

prosecuting acts of cross burning that come within the scope

of its own statutes, but also in assuring that the States retain

wide discretion to address the continuing national problem of

cross burning as an instrument of intimidation. Some States,

following the United States’ approach, may choose to adopt

statutes that encompass a wide array of coercive conduct in-

tended to prevent or deter their citizens from engaging in

protected activities. Other States, following Virginia’s ap-

proach, may choose to adopt statutes focused on the parti-

cular conduct that has been employed to intimidate their

citizens. Both approaches should be permissible under the

First Amendment so long as the gravamen of the offense is

intimidation, not expression.’

STATEMENT

For much of the past century, a burning cross has served

as both “a symbol of white supremacy and a tool for the inti-

midation and harassment of racial minorities, Catholics,

Jews, Communists, and * * * other groups.” Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 770

(1995) (Thomas, J., concurring). This case concerns whether

1 The federal statutes that have been applied to prosecute cross burn-

ing do not contain any provisions comparable to Virginia’s provision that

the burning of a cross is “prima facie evidence of an intent to intimidate,”

Va. Code Ann. § 18.2-423 (Michie 1996), and the United States expresses

no view on the constitutionality of that provision. See p. 24 note 10, infra.

a State is constrained, because of the symbolic component of

cross burning, from specifically regulating the intimidation

component.

1. Cross burning, which originated in the Scottish High-

lands as a means of signaling from one clan to another, was

unknown in the United States until the early 20th Century.

The first reported cross burning in this country occurred in

October 1915 at Stone Mountain, Georgia, when a group

calling itself the Knights of Mary Phagan burned a giant

cross that could be seen miles away in Atlanta. The Stone

Mountain cross burning has been attributed to the same

vigilantes who two months earlier abducted Leo Frank, a

Jewish merchant whose sentence for Phagan’s murder had

been commuted, from a Georgia prison farm and hanged him.

See Wyn C. Wade, The Fiery Cross: The Ku Klux Klan in

America 144, 146 (1987); Michael Newton & Judy Newton,

The Ku Klux Klan: An Encyclopedia 145-145, 325-326

(1991).

Cross burning soon became a part of the prescribed ritual

at Ku Klux Klan gatherings. But cross burning also came to

have a more sinister use as one of the means, along with

arson, assault, bombing, and even murder, used by the Klan

and others to “terrify people out of engaging in particular

kinds of behavior.” Nancy MacLean, Behind the Mask of

Chivalry: The Making of the Second Ku Klux Klan 150

(1994). Indeed, on occasions when cross burning alone

“failed to intimidate,” Klan members “resorted to beatings

and murder,” among other tactics. Juan Williams, Eyes on

the Prize: America’s Civil Rights Years 1954-1965, at 39

(1987); see Leonard S. Rubinowitz & Imani Perry, Crimes

Without Punishment: White Neighbors’ Resistance to Black

Entry, 92 J. Crim. L. & Criminology 335, 342 (Fall 2001-

Winter 2002) (noting that an “escalating campaign to eject a

[minority] family” from a white neighborhood could begin

with “cross burnings, window breaking, or threatening

telephone calls,” and culminate with bombings). The

association between acts of intimidating cross burning and

acts of violence is well documented in recent American

history.”

2 See, eg., United States v. Guest, 383 U.S. 745, 747-748 n.1 (1966)

(quoting indictment charging conspiracy under 18 U.S.C. 241 to interfere

with federally secured rights by, inter alia, “burning crosses at night in

public view,” “shooting Negroes,” “beating Negroes,” “killing Negroes,”

“damaging and destroying property of Negroes,” and “pursuing Negroes

in automobiles and threatening them with guns”); United States v.

Pospisil, 186 F.3d 1023, 1027 (8th Cir. 1999) (defendants burned a cross in

victims’ yard, slashed their tires, and fired guns), cert. denied, 529 U.S.

1089 (2000); United States v. Stewart, 65 F.3d 918, 922 (11th Cir. 1995)

(cross burning precipitated an exchange of gunfire between victim and

perpetrators), cert. denied, 516 U.S. 1134 (1996); United States v. Mc-

Dermott, 29 F.3d 404, 405 (8th Cir. 1994) (defendants sought to discourage

African-Americans from using public park by burning a cross in the park,

as well as by “waving baseball bats, axe handles, and knives; throwing

rocks and bottles; veering cars towards black persons; and physically

chasing black persons out of the park”); Cox v. State, 585 So. 2d 182, 202

(Ala. Crim. App. 1991) (defendant participated in evening of cross burning

and murder), cert. denied, 503 U.S. 987 (1992); Robert A. Caro, The Years

of Lyndon Johnson: Master of the Senate 847 (2002) (referring to a wave

of “southern bombings, beatings, sniper fire, and cross-burnings” in late

1956 in response to efforts to desegregate schools, buses, and parks);

Michael Newton & Judy Newton, supra, at 21 (observing that “Jewish

merchants were subjected to boycotts, threats, cross burnings, and some-

times acts of violence” by the Klan and its sympathizers); id. at 361-362

(describing cross burning and beatings directed at an African-American

family that refused demands to sell its home); id. at 382 (describing

incident of cross burning and brick throwing at home of Jewish office-

holder); id. at 583 (describing campaign of cross burning and property

damage directed at Vietnamese immigrant fishermen); Wyn C. Wade,

supra, at 262-263 (describing incidents of cross burning, beatings, kid-

napping, and other “terrorism” directed against union organizers in the

South); id. at 376 (cross burnings associated with shooting into cars); id. at

377 (cross burnings associated with assaults on African-Americans); 1

Richard Kluger, Simple Justice 378 (1975) (describing cross burning at,

and subsequent shooting into, home of federal judge who issued

2. In 1952, the Virginia General Assembly adopted the

predecessor to the statute at issue here, “in direct response

to Ku Klux Klan activities in Virginia, including incidents of

cross burning.” Pet. App. 6 (footnote omitted); see id. at 86-

95 (newspaper articles describing such incidents). The

statute, in its original form, made it unlawful “to place or

cause to be placed on the property of another * * * a

burning or a flaming cross * * * without first obtaining

written permission of the owner or occupier of the pre-

mises.” Id. at 6 n.3 (quoting 1952 Va. Acts ch. 483 § 2, at

477). In subsequent years, the General Assembly made the

statute broader in some respects (e.g., to include cross burn-

ing on “a highway or other public place”), and narrower in

other respects (e.g., to apply only to cross burning “with the

intent of intimidating any person or group of persons”). In

its present form, the statute provides:

It shall be unlawful for any person or persons, with

the intent of intimidating any person or group of per-

sons, to burn, or cause to be burned, a cross on the pro-

perty 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 evi-

dence of an intent to intimidate a person or group of

persons. |

Va. Code Ann. § 18.2-423 (Michie 1996).

3. This case arises out of the prosecutions of three

individuals, respondents here, for violations of the Virginia

statute. Two of those individuals, Richard Elliott and

desegregation decisions); Leonard S. Rubinowitz & Imani Perry, supra, 92

J. Crim. L. & Criminology at 354-355, 388, 408-410, 419, 420, 421, 423

(describing incidents of cross burning accompanied by violence); Pet. App.

92-93 (describing 1951 Virginia cross burning accompanied by gunfire).

Jonathan O’Mara, were prosecuted for an attempted cross

burning in Virginia Beach, Virginia, in May 1998. The third

individual, Barry Elton Black, was prosecuted for a cross

burning in Carroll County, Virginia, in August 1998.

a. Respondents Elliott and O’Mara, together with a third

individual, attempted to burn a cross on the property of

James Jubilee, an African-American who lived next door to

Elliott and who had recently complained about the shooting

of firearms in Elliott’s backyard. Elliott and O’Mara were

charged with attempted cross burning and conspiracy to

commit cross burning. O’Mara pleaded guilty to both counts,

reserving the right to challenge the constitutionality of the

cross-burning statute. Pet. App. 2-3, 48-49.

At Elliott’s trial, the court instructed the jury on the ele-

ments of attempted cross burning: “[t]hat the defendant

intended to commit cross burning”; “(t]hat the defendant did

a direct act toward the commission of the cross burning”; and

“(t]hat the defendant had the intent of intimidating any

person or group of persons.” Pet. App. 75. The jury found

Elliott guilty of attempted cross burning, but not of con-

spiracy. Id. at 3.

The court of appeals sustained the cross-burning statute

against respondents’ First Amendment challenge. The court

concluded that the statute “targets only expressive conduct

undertaken with the intent to intimidate another, conduct

clearly proscribable both as fighting words and as a threat of

violence.” Pet. App. 57; see id. at 3.

b. Respondent Black was charged with cross burning at a

Ku Klux Klan rally. Pet. App. 4. At his trial, the court

instructed the jury that the Commonwealth was required to

prove beyond a reasonable doubt that Black “burned or

caused to be burned a cross in a public place” and “did so

with the intent to intimidate any person or group of per-

sons.” Id. at 66. The court further instructed the jury that

an “intent to intimidate” means “a motivation to intention-

ally put a person or group of persons in fear of bodily harm.”

Id. at 66-67. The court added that “(t]he burning of a cross,

by itself, is sufficient evidence from which you may infer the

required intent.” Id. at 67. The jury found Black guilty. Id.

at 4.

The court of appeals affirmed Black’s conviction, rejecting

his constitutional challenge to the statute “[flor the reasons

stated in O’Mara.” Pet. App. 46; see id. at 4.

4. The Virginia Supreme Court, after consolidating re-

spondents’ appeals, reversed their convictions. The court

held that the cross-burning statute, on its face, violates the

First Amendment for two reasons.

First, the court held that the cross-burning statute “pro-

hibits otherwise permitted speech solely on the basis of its

content.” Pet. App. 2. The court did not dispute that the

Commonwealth could proscribe all “expressive conduct that

is intimidating in nature.“ Id. at 11. The court reasoned,

however, that the Commonwealth could not single out some

such conduct “based upon hostility—or favoritism—towards

the underlying message expressed.” Ibid. (quoting R. A. V. v.

City of St. Paul, 505 U.S. 377, 386 (1992)). The court con-

cluded that the Commonwealth violated that principle by

“selectively choos[{ing] only cross burning because of its

distinctive message.” Ibid.

Second, the court held that the cross-burning statute is

“overbroad,” because of its provision that “[aJny such burn-

ing of a cross shall be prima facie evidence of an intent to

intimidate.” Pet. App. 16-17. The court concluded that the

provision could chill free expression, because “the act of

burning a cross alone, with no evidence of intent to inti-

midate, will nonetheless suffice for arrest and prosecution,”

even if “the trier of fact ultimately finds the actor not guilty

of the offense.” Jd. at 17.

SUMMARY OF ARGUMENT

The United States and the Commonwealth of Virginia

have taken divergent approaches in their regulation of cross

burning intended to threaten or intimidate. The United

States prosecutes certain acts of cross burning under federal

civil-rights statutes that generally proscribe the use of force

or the threat of force to intimidate an individual because of,

inter alia, his race and his exercise of federal housing rights,

see 42 U.S.C. 3631, or that generally proscribe conspiracy to

interfere with the exercise of federally protected rights, see

18 U.S.C. 241. Virginia, in contrast, prosecutes similar acts

under a statute that specifically proscribes cross burning

“with the intent of intimidating any person or group of per-

sons.” The federal statutes are constitutional under the

First Amendment for reasons articulated in R.A.V. v. City of

St. Paul, 505 U.S. 377 (1992), and Wisconsin v. Mitchell, 508

U.S. 476 (1993). The Virginia statute’s exclusive focus on

cross burning with the intent to intimidate is constitutional

as well.

The statutes under which the United States prosecutes

cross burning—principally, 42 U.S.C. 3631 and 18 U.S.C. 241

—are directed at conduct, without regard to its expressive

content, if any. Those statutes are analytically indistinguish-

able from 18 U.S.C. 242, which prohibits “willfully subjecting

any person * * * to the deprivation of any [federal] rights,”

and which R.A.V. and Mitchell identify as “a permissible

content-neutral regulation of conduct.” Mitchell, 508 U.S. at

487. As R. A. V. explains, “(wJhere the government does not

target conduct on the basis of its expressive content, acts are

not shielded from regulation merely because they express a

[particular] idea or philosophy.” 505 U.S. at 390. Thus, the

United States may prosecute a cross burning intended to

intimidate an individual because of his race and his exercise

of his federal right to “occupy[] * * * any dwelling,” 42

U.S.C. 3631(a), even if the cross burning is also intended to

express an idea or philosophy.

The Virginia statute’s focus on cross burning is consti-

tutional for the same reason. The statute applies to only

those cross burnings intended to intimidate, and to all such

cross burnings regardless of any idea or viewpoint that they

may be intended to express. As such, the statute is properly

viewed as a regulation directed at conduct—the intentional

use of a burning cross as a tool of intimidation—and not as a

regulation directed at speech. To the extent that the First

Amendment may require additional scrutiny because the

statute focuses on an activity that may often be intended not

only to intimidate but also to express an idea or viewpoint,

the statute satisfies the applicable standard, which is that

set forth in United States v. O’Brien, 391 U.S. 367, 376-377

(1968). The statute serves the Commonwealth’s important

interest in protecting its citizens from coercive activity

intended to put them in fear of harm. That interest is un-

related to the suppression of free expression. The statute is

narrowly tailored to reach only cross burning intended to

intimidate, leaving ample opportunity for the expression of

any view, including by burning a cross on one’s own property

or otherwise in circumstances not intended to intimidate. A

regulation of conduct, or a “nonspeech” element of expres-

sive conduct, is not subject to the content-neutrality prin-

ciple of R.A.V.; thus, a State is not required by the First

Amendment to regulate all such conduct in the same manner

or to the same extent, but instead may, for example, regulate

intimidation by burning a cross without similarly regulating

other modes of intimidation.

Alternatively, even if the Virginia statute is viewed (as

the Virginia Supreme Court viewed it) as a selective regu-

lation of intimidating expression, the statute does not violate

the First Amendment. As the Court explained in R. A. V.,

when the basis for the content discrimination consists

entirely of the very reason the entire class of speech at issue

is proscribable, no significant danger of idea or viewpoint

discrimination exists,” because Isluch a reason, having been

adjudged neutral enough to support exclusion of the entire

class of speech from First Amendment protection, is also

neutral enough to form the basis of distinction within the

class.” 505 U.S. at 388. The government could constitution-

ally proscribe all sufficiently threatening or intimidating ex-

pression in order to proteetſ] individuals from the fear of

violence, from the disruption that fear engenders, and from

the possibility that the threatened violence will occur.” Ibid.

Those reasons apply with “special force,” ibid., to intimi-

dating cross burning. Cross burning, because of its historical

association with vigilantism and violence, has a unique po-

tential for instilling fear in its victims, disrupting the life of

the community, and precipitating other unlawful conduct. A

regulation that focuses exclusively on intimidation by cross

burning is justified for those content-neutral reasons.

ARGUMENT

A person has no First Amendment right to burn a cross in

order to intimidate others, whether or not he also intends to

express an idea or philosophy. Such conduct producels]

special harms distinct from [its] communicative impact,” and

thus is “entitled to no constitutional protection.” Mitchell,

508 U.S. at 484. In R. A. V., which arose out of the burning of

a cross in the yard of an African-American family, the Court

acknowledged that the government “has sufficient means at

its disposal to prevent such behavior,” 505 U.S. at 396, apart

from an ordinance that prohibits “fighting words that

contain * * * messages of ‘bias-motivated’ hatred,” id. at

392. See id. at 380 n.1 (suggesting that such conduct may be

prosecuted under, inter alia, a statute prohibiting threats).

Indeed, the United States subsequently prosecuted the same

cross burning at issue in R.A.V. under its statutes pro-

hibiting, inter alia, the use of threats of force to intimidate a

person because of his race and his exercise of federal housing

rights, 42 U.S.C. 3631, and conspiracy to intimidate a person

in the exercise of federal rights, 18 U.S.C. 241. See United

States v. J.H.H., 22 F.3d 821 (8th Cir. 1994) (rejecting First

Amendment challenge to that prosecution).

Intimidation is not protected speech. It is conduct, physi-

cal or verbal, intended to coerce its victims by putting them

in fear, typically of bodily harm. See, eg., Black’s Law

Dictionary 827 (7th ed. 1999) (defining “intimidation” as

“Culnlawful coercion, extortion”); Anderson v. Boston Sch.

Comm., 105 F.3d 762, 766 (1st Cir. 1997) (defining “intimi-

dation” under Massachusetts Civil Rights Act as “putting in

fear for the purpose of compelling or deterring conduct”);

United States v. Woodrup, 86 F.3d 359, 363-364 (4th Cir.)

(defining “intimidation” under federal bank robbery statute

as conduct from which “an ordinary person * * * rea-

sonably could infer a threat of bodily harm”), cert. denied,

519 U.S. 944 (1996); United States v. McDermott, 29 F.3d

404, 408 (8th Cir. 1994) (approving instruction defining

“threaten” and “intimidate” under 18 U.S.C. 241 as “cover-

[ing] a variety of conduct. intended to harm, frighten, punish

or prevent the free action of other persons”); Sutton v.

Commonwealth, 324 S.E.2d 665, 670 (Va. 1985) (Hilnti-

midation * * * means putting a victim in fear of bodily

harm”); llth Cir. Pattern Jury Instructions—Criminal

Cases, Instr. No. 87 (1997) (defining use of “threat of force”

to “intimidate” under 42 U.S.C. 3631 as “to say or do some-

thing which, under the same circumstances, would cause

another person of ordinary sensibilities to be fearful of bodily

harm if he or she did not comply”) (available on Westlaw).

Intimidation is not necessarily, or even usually, associated

with the expression of ideas or viewpoints.* Thus, when a

statute proscribes certain conduct (whether or not

expressive) only when undertaken with the intent to intimi-

date, the statute is “insulate[d] * from unconstitutional

application to protected speech.” United States v. Gilbert,

813 F.2d 1523, 1529 (9th Cir.) (addressing intent to intimi-

date element of 42 U.S.C. 3631), cert. denied, 484 U.S. 860

(1987).*

Such a statute, if confined to a single type of conduct that

often is intended not only to intimidate but also to express

an idea or viewpoint, may nonetheless implicate the First

Amendment by virtue of its impact on proscribable speech.

The Virginia statute, unlike the federal statutes, may come

within that category because of its focus on intimidation by

cross burning. Such a statute still may satisfy the First

3 Intimidation is an element of many federal offenses—ranging from

bank robbery to witness tampering to obtaining nuclear material—that

ordinarily are not associated with the expression of ideas or viewpoints.

See, e.g., 18 U.S.C. 831(a)(4) (obtaining nuclear material by intimidation);

18 U.S.C. 844(d) (transportation of explosives to be used to intimidate); 18

U.S.C. 1503 (intimidation of juror or judicial officer); 18 U.S.C. 1512(b)

(intimidation with intent to influence official proceedings); 18 U.S.C. 1860

(intimidation in purchase or sale of public lands); 18 U.S.C. 2113(a)

(intimidation to obtain money or property from financial institution); 18

U.S.C. 2231(a) (intimidation of person serving or executing search war-

rant).

* When the defendant’s intent to intimidate is an element of a criminal

offense, as it is under the federal and Virginia statutes used to prosecute

intimidating cross burning, the evidence, taken as a whole, must be suffi-

cient to establish that element beyond a reasonable doubt. The First

Amendment provides additional protection by requiring “an independent

examination of the whole record to ensure that the judgment does not

constitute a forbidden intrusion on the field of free expression.” Bose

Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984)

(internal quotation marks omitted); cf. United States v. Hanna, 293 F.3d

1080, 1087-1088 (9th Cir. 2002) (conducting independent review to deter-

mine whether record established a “true threat”).

Amendment, either under the O’Brien framework for a

regulation of expressive conduct or under one of R.A.V.’s

exceptions for a selective regulation of proscribable expres-

sion that poses no threat of suppressing ideas or viewpoints.

I. THE UNITED STATES PERMISSIBLY REGU-

LATES CROSS BURNING, WHEN INTENDED TO

THREATEN OR INTIMIDATE, UNDER STATUTES

THAT ARE DIRECTED AT CONDUCT WITHOUT

REGARD TO ITS EXPRESSIVE CONTENT

The United States prosecutes cross burning under Acts of

Congress that prohibit the use of force or threats of force to

intimidate an individual because of his race (or other status)

and his exercise of federal housing rights, see 42 U.S.C. 3631,

and conspiracy to interfere with the exercise of federal

rights, see 18 U.S.C. 241. See Appendix, infra, la, 6a-7a.

Those statutes, on their face and as applied to cross burning,

are constitutional under the First Amendment, because they

are directed at conduct, without regard to its expressive

content, if any.

5 An act of cross burning is not necessarily designed both to express a

message, such as racial animus, and to intimidate. Some cross burnings,

such as those that occur at a Ku Klux Klan rally from which the public is

excluded, may be intended only to express a common ideology and to

foster group solidarity. Other cross burnings, perhaps including the cross

burning involving respondents Elliott and O’Mara, may be intended to

intimidate for a purely personal reason, and not to express any idea or

viewpoint. See Pet. 3 (noting the absence of any record evidence that

respondents Elliott and O’Mara “are members of the Klan” or “hold any

particular views on politics or race or any other subject”); Pet. App. 36

(Hassell, J., dissenting) (noting that Elliott and O’Mara “burned a cross

because they were angry that their neighbor had complained about the

presence of a firearm shooting range in the Elliotts’ yard, not because of

any racial animus”); see also, e. g., People v. Carr, 97 Cal. Rptr. 2d 143, 146

(Ct. App. 2000) Jewish teenager asked his friends to burn a cross in his

family’s yard because “he was mad at his parents; he didn’t like his curfew

1. Most often, the United States prosecutes cross burn-

ing under 42 U.S.C. 3631, a provision of the Fair Housing

Act of 1968, 42 U.S.C. 3601 et seg. Section 3631 prohibits,

among other things, using “force or threat of force” to

“willfully injurell, intimidatel] or interfere{] with“ any

person because of his “race” and his “occupying * any

dwelling.” 42 U.S.C. 3631(a).

If more than one person is involved in planning or carry-

ing out a cross burning, the United States may also charge

those persons under 18 U.S.C. 241, which prohibits con-

spiracy to “injure, oppress, threaten, or intimidate any per-

son” in the exercise of a federally secured right. Typically, in

such a conspiracy prosecution, the underlying right is the

right under 42 U.S.C. 1982 to purchase, lease, or hold real

property free from racial discrimination.°

Those statutes may, consistent with the First Amend-

ment, be applied to prosecute acts of cross burning intended

to intimidate a victim, notwithstanding that those acts may

and other rules”); State v. Miller, 629 P.2d 748 (Kan. Ct. App. 1981)

(defendant burned a cross in the yard of a lawyer who had previously

represented him and who was prosecuting him on traffic charges);

Williams v. Commonwealth, 72 S.W.2d 31 (Ky. 1934) (defendant mur-

dered his brother-in-law, while preparing to burn a cross on his property,

apparently in response to an earlier disagreement). Some cross burnings

may be intended for other purposes. See, e. g., People v. Steven S., 31 Cal.

Rptr. 2d 644, 646 653 (Ct. App. 1994) (cross burning was purportedly “a

practical joke”); Wyn C. Wade, supra, at 227 (describing an instance in

which young Roman Catholics, whose religion was opposed by the local

Klan, “lit crosses all over town and let the Klan take the blame”).

6 Defendants in a cross-burning case may also be prosecuted under 18

U.S.C. 245(b), which criminalizes interference “by force or threat of force”

with other federally guaranteed rights, including voting, employment, and

use of public facilities and public accommodations. See United States v.

McDermott, 29 F.3d at 405 (prosecution under 18 U.S.C. 241 and

245 b) 2)(B) for conduct, including cross burning, intended to interfere

with African-Americans’ use of public park).

also be intended to express an idea or viewpoint. That is

because the statutes are directed at conduct, not speech, al-

though they may sometimes, be violated by acts that have an

expressive component.

2. In R.A.V., the Court distinguished laws directed at

speech, such as the ordinance in that case, from laws

directed at conduct, distinct from its expressive content. 505

U.S. at 389. The Court explained that, “[wJhere the

government does not target conduct om the basis of its

expressive content, acts are not shielded from regulation

merely because they express a [particular] idea or philo-

sophy.” Id. at 390. Thus, “nonverbal expressive activity can

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

the ideas it expresses.” Id. at 385; cf. Texas v. Johnson, 491

U.S. 397, 406 (1989) (“The government generally has a freer

hand in restricting expressive conduct than it has in re-

stricting the written or spoken word. It may not, however,

proscribe particular conduct because it has expressive ele-

ments.”) (citations omitted). A statute directed at conduct

may even be violated by words alone without raising First

Amendment concerns. See Ohralik v. Ohio State Bar Ass’n,

436 U.S. 447, 456 (1978) (IIlt has never been deemed an

abridgement of freedom of speech or press to make a course

of conduct illegal merely because the conduct was in part

initiated, evidenced, or carried out by means of language,

either spoken, written, or printed.”).

The Court noted that a law directed at conduct, without

regard to its expressive content, may “incidentally” encom-

pass “a particular content-based subcategory of a pro-

scribable class of speech.” R.A.V., 505 U.S. at 389. The

Court made clear that such laws, in contrast to the one in

R.A.V., do not involve unconstitutional content discrimi-

nation. The Court identified several federal civil-rights laws

as examples of such permissible regulations. Thus, “Title

VII’s general prohibition against sexual discrimination in

employment practices“ -a regulation of conduct—may be

violated by, among other things, sexually derogatory fight-

ing words.“ Id. at 389-390 (citing 42 U.S.C. 2000e-2; 29

C. F. R. 1604.11 (1991). The Court also cited 18 U.S.C. 242,

42 U.S.C. 1981, and 42 U.S.C. 1982 as examples of consti-

tutionally permissible regulations. 505 U.S. at 389-390.

In Mitchell, the Court upheld a statute that provided an

enhanced criminal penalty if the defendant targeted his

victim on the basis of race. In rejecting a First Amendment

challenge to the statute, the Court reiterated the distinction

between laws directed at speech and laws directed at con-

duct, explaining that “whereas the ordinance struck down in

R.A.V. was explicitly directed at expression * * *, the

statute in this case is aimed at conduct unprotected by the

First Amendment.” 508 U.S. at 487. It was of no consti-

tutional significance that the statute reached conduct, such

as the assault in that case, that could be viewed as an

expression of the perpetrator’s views toward a particular

race, because “violence or other types of potentially expres-

sive activities that produce special harms distinct from their

communicative impact * * * are entitled to no constiutional

protection.” Jd. at 484. The Court also noted that R.A.V.

had “cited Title VII (as well as 18 U.S.C. § 242 and 42 U.S.C.

§§ 1981 and 1982) as an example of a permissible content-

neutral regulation of conduct.” Id. at 487.

3. The civil-rights statutes under which the United

States prosecutes cross burning, like the federal civil-rights

statutes that the Court identified in R.A.V. and Mitchell, are

directed at conduct, distinct from any idea or viewpoint that

it might express. 508 U.S. at 487. As the Court recognized

in those cases, such statutes may reach words or expressive

acts without violating the First Amendment. See R. A. V.,

505 U.S. at 389-390.

As noted, 42 U.S.C. 3631, the principal statute used by the

United States to prosecute cross burning, prohibits any use

of “force or threat of force” to “willfully injure[], intimidate[]

or interfereſ] with” a person because of, inter alia, his race“

and his “occupying * * * any dwelling.” 42 U.S.C. 3631(a).

It makes no difference whether such conduct is intended to

express an idea or viewpoint as well as to “injure[], intimi-

date[] or interfere[] with” a victim. Section 3631 applies

equally to an assault committed in secrecy, see, e.g., United

States v. Wood, 780 F.2d 955 (11th Cir.) (forcible entry into

home, beatings, death threats), cert. denied, 476 U.S. 1184

(1986); United States v. Johns, 615 F.2d 672 (5th Cir.) (firing

guns into home), cert. denied, 449 U.S. 829 (1980), and to a

cross burning committed in public view, provided that the

defendant acted with the requisite intent. Thus, Section

3631 “is aimed at curtailing wrongful conduct in the form of

threats or intimidation, and not toward curtailing any parti-

cular form of speech.” United States v. Hayward, 6 F.3d

1241, 1250 (7th Cir. 1993), cert. denied, 511 U.S. 1004 (1994);

accord United States v. Stewart, 65 F.3d 918, 928-929 (11th

Cir. 1995) (describing Section 3631 as “target[ing] unpro-

tected conduct—willful interference with housing rights”

—that “the government may regula ‘thout violating the

First Amendment”), cert. denied, 516 U.S. 1134 (1996).

Similarly, 18 U.S.C. 241 and 42 U.S.C. 1982, which are

used together to prosecute cross-burning conspiracies, are

regulations directed at conduct. Section 241 punishles] any

* * * conspiracy to threaten or to intimidate, violating the

statutel] regardless of the viewpoint guiding the action.”

J.H.H., 22 F.5d at 825. Section 1982, which secures certain

rights with respect to real and personal property against dis-

crimination based on race, is specifically mentioned in

Mitchell, 508 U.S. at 487, and R.A.V., 505 U.S. at 389-390, as

a constitutional regulation of conduct, without regard to its

expressive content.

Both 42 U.S.C. 3631 and 18 U.S.C. 241 are analytically

indistinguishable from statutes that this Court has described

as regulations directed at co.uduct. One statute so described

by the Court is 18 U.S.C. 242, which was an example given in

R.A.V., 505 U.S. at 389-390, and Mitchell, 508 U.S. at 487.

Section 242, which applies to those acting under color of law,

prohibits “willfully subject{ing] any person * * * to the

deprivation of any [federal] rights, privileges or immunities.”

Similarly, Section 3631 and Section 241 are directed at

conduct intended to interfere with the exercise of federal

rights, not at the message that the conduct may be intended

to convey.

Section 3631 and Section 241 also resemble 18 U.S.C.

112(b), a statute that the Court viewed as constitutional in

Boos v. Barry, 485 U.S. 312, 326 (1988). Section 112(b) pro-

hibits “willfully * * * intimidat[ing], coerc{ing], threaten-

ling], or harass[ing] a foreign official or an official guest or

obstruetling] a foreign official in the performance of his

duties,” or attempting to do so. 18 U.S.C. 112(b)(1) and (2).

In Boos, the Court noted the “constitutionally significant”

differences between 18 U.S.C. 112(b) and the statute at issue

in that case, which prohibited displays designed, inter alia,

to bring a foreign government, its officials, its policies, or its

views into “public odium” or “public disrepute.” 485 U.S. at

316, 326. The Court explained that Section 112(b), in

contrast to the statute at issue, “is not narrowly directed at

the content of speech but at any activity, including speech,

that has the prohibited effects” of “intimidat{ing], coerc[ing],

threatenlingl, or harass[ing]” a foreign official or guest. Id.

at 326. Boos thus reinforces the conclusion that a statute

that prohibits acts of intimidation, threats, harassment, and

other such interference, without regard to their expressive

content, is a constitutionally permissible regulation of con-

duct, “including speech.” Ibid.

4. It is thus clear that the federal statutes that have

been used to prosecute cross burning are aimed at conduct,

not expressive content. The scope of conduct prohibited by

Section 3631, for example, includes both “force” and

“threats,” and “threats of violence are outside the First

Amendment,” R.A.V., 505 U.S. at 388, insofar as they are

“true threats.” See Watts v. United States, 394 U.S. 705

(1969) (per curiam). R.A.V. indicated that, even though

threats are unprotected, a statute that singled out certain

threats based on the ideas or viewpoints that they sought to

express would raise a distinct First Amendment issue. See

505 U.S. at 388 (“the Federal Government may not criminal-

ize only those threats against the President that mention his

policy on aid to inner cities”). But the federal statutes that

have been used to prosecute cross burning do not make such

content distinctions. Section 3631 punishes all “threats of

force” that are used to injure, intimidate, or interfere with a

person “because of” his race, color, religion, etc., and “be

cause of” his exercise of federal housing rights. 42 U.S.C.

3631(a). The statute therefore singles out threats made be-

cause of the defendant’s motives or reasons for acting, not

because of the content of the threat. A threat using any

language or any means of expression is covered, if made for

the prohibited reasons. That approach raises no First

Amendment issue. See Mitchell, 508 U.S. at 487 (upholding

enhanced penalty for bias-motivated crime because “motive

plays the same role under the Wisconsin statute as it does

under federal and state antidiscrimination laws, which we

have previously upheld against constitutional challenge“).

The Virginia Supreme Court stated that “a statute punishing intimi-

dation or threats based only upon racial, religious, or some other selective

content-focused category of otherwise protected speech violates the First

Amendment.” Pet. App. 9. That statement has no application to the

federal statutes under which cross burning has been prosecuted (which do

not focus on the content of speech), and it is overbroad even if intended

simply as a description of R.A.V., which did not pronounce an absolute

rule forbidding content discrimination. But to the extent that the state-

ment suggests that a statute cannot prescribe intimidation or threats

In sum, 42 U.S.C. 3631 and 18 U.S.C. 241 are properly

understood as regulations directed at conduct, which may

constitutionally encompass acts, such as cross burning, that

may also express an idea or viewpoint. Accordingly,

whether or not a State may prosecute intimidation by cross

burning under a statute that exclusively applies to that

activity, a State may do so under a statute of more general

application that is modeled on the federal statutes discussed

above.

II. A STATE MAY PERMISSIBLY REGULATE CROSS

BURNING, WHEN INTENDED TO THREATEN OR

INTIMIDATE, UNDER A STATUTE THAT

APPLIES EXCLUSIVELY TO THAT CONDUCT

The Virginia statute does not prohibit all cross burning,

or a content-based subcategory of cross burning. Rather,

the statute prohibits cross burning “with the intent of

intimidating any person or group of persons,” when con-

ducted “on the property of another, a highway or other

public place.” Va. Code Ann. § 18.2-423 (Michie 1996). The

statute reaches all such incidents of cross burning regardless

of the ideas, if any, that they may be intended to communi-

cate. Those features of the statute are constitutionally

significant for two reasons. First, the statute may be

viewed as a regulation directed at conduct—intimidation—as

distinguished from a regulation directed at expression.

directed at a person because of his race, religion, or another such char-

acteristic or because of the defendant’s reasons for acting, the statement is

inconsistent with this Court’s understanding that “a prohibition of fighting

words that are directed at certain persons or groups * * * would be

facially valid if it met the requirements of the Equal Protection Clause.”

R.A.V., 505 U.S. at 392, and with this Court’s conclusion in Mitchell, 508

U.S. at 486-487, that imposition of an enhanced penalty when the de-

fendant selects his victim based on race or another protected char-

acteristic does not violate the First Amendment.

Alternatively, even if the statute is viewed as a selective

regulation of proscribable expression, the statute does not

violate the First Amendment, because it presents no danger

of impermissible content or viewpoint discrimination. The

same content-neutral reasons that would justify a pro-

hibition of all intimidating expression also justify a selective

prohibition of intimidation by cross burning.

A. The Virginia Statute Is A Regulation Of Conduct—

The Intentional Use Of Cross Burning As A Tool Of

Intimidation—Not A Regulation Of Expression

1. The Virginia statute, like the federal statutes dis-

cussed above, is appropriately viewed as a regulation of

conduct—specifically, the intentional use of a burning cross

as an instrument of intimidation.” Capitol Square, 515 U.S.

at 770-771 (Thomas, J. concurring). It applies only to cross

burning that is undertaken “with the intent of intimidating

any person or group of persons,” and to all such cross burn-

ing whether or not it is also intended to express an idea or

philosophy. Such a statute cannot reasonably be viewed as

being directed at the suppression of free expression.

As explained above (at 11-12), intimidation is not pro-

tected speech. It is conduct intended to “put a person or

group of persons in fear of bodily harm.” Pet. App. 66-67

(jury instruction in respondent Black’s case); see Sutton v.

Commonwealth, 324 S.E.2d at 670 (“{iJntimidation * * *

means putting a victim in fear of bodily harm”). A law

against intimidation is thus similar to a law against treason,

or fraud, or blackmail—a law that may be violated by words,

but that is “directed not against speech but against conduct.”

R. A. V., 505 U.S. at 389 (discussing law against treason).

8 The state cross-burning statutes invalidated in two cases cited by

the Virginia Supreme Court (Pet. App. 13-14)—State v. Ramsey, 430

S.E.2d 511 (S.C. 1998), and State v. Sheldon, 629 A.2d 753 (Md. 1993)—did

The Virginia statute thus differs in critical respects from

the ordinance in R.A.V. The Commonwealth has not sought

to regulate speech that arouses “anger, alarm, or resentment

in others on the basis of race, color, creed, religion, or

gender,” as did the provision at issue in R.A.V. 505 U.S. at

393. The distinctive harms in that case, the Court concluded,

were the product of the expression of “a distinctive idea,

conveyed by a distinctive message.” Ibid. Here, Virginia

has selected for prohibition, not a “distinctive idea” or “a

distinctive message,” but a distinctive form of conduct

—intentional intimidation through cross burning— that has

historically served as a precursor to violent action. See pp.

2-5 & note 2, supra. It does not matter whether the

defendant selected that mode of intimidation to express

racial hatred or simply to take advantage of the intense fear

that it induces. In either case, cross burning has a unique

potential to cause fear, disruption, and the potential for

violence, and it is for that reason that Virginia has singled

out cross burning with the intent to intimidate for special

proscription. In regulating that specific act, Virginia pro-

tects against a form of conduct that has a particularized

capacity to instill in its victims a well-grounded fear that

physical violence will follow.

2. The Virginia statute, in contrast to the federal

statutes discussed above, applies to a single mode of intimi-

dating conduct, intimidation by cross burning. Cross burning

is not in all instances an expressive activity. See pp. 13-14

note 5, supra. But by focusing on a particular type of

activity that often is expressive of an idea or viewpoint, the

Virginia statute, although directed at conduct, may require

scrutiny under the First Amendment in a way that the

federal statutes do not.

not contain an “intent to intimidate” element, and for that reason are

unlike the statute at issue here.

To that extent, the Virginia statute is appropriately ana-

lyzed under the intermediate scrutiny standard of United

States v. O’Brien, 391 U.S. 367, 376-377 (1968), as a regula-

tion of a “nonspeech” element (i.e., intentional intimidation)

of conduct that may contain both “speech” and “nonspeech”

elements. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 703

(1986) (noting that the Court has applied the O’Brien

analysis to “cases involving government regulation of con-

duct that has an expressive element”); see also, e. g., City of

Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality

opinion) (applying O’Brien standard to regulation of public

nudity); accord id. at 310 (Souter, J., concurring in part and

dissenting in part); Clark v. Community for Creative Non-

Violence, 468 U.S. 288, 298-299 (1984) (applying O’Brien

standard to regulation prohibiting sleeping in public parks).

The Virginia statute withstands First Amendment scru-

tiny under the O’Brien standard. See O’Brien, 391 U.S. at

377 (statute must promote an “important or substantial

government interest,” which is “unrelated to the suppression

of free expression,” and restrict such expression only to the

extent “essential to the furtherance of that interest”). The

statute serves the government’s important, indeed compell-

ing, interest in preventing activity that creates fear, dis-

ruption, and the potential for violence. See pp. 28-29, infra.

Such an interest is unrelated to the suppression of any idea

See also Hernandez v. Commonwealth, 406 S.E.2d 398, 400-401 (Va.

Ct. App. 1991) (sustaining under O’Brien standard Virginia statute pro-

hibiting wearing of masks to conceal identity as applied to Ku Klux Klan

member), habeas corpus denied sub nom. Hernandez v. Superintendent,

800 F. Supp. 1344 (E.D. Va. 1992), appeal dismissed, 8 F.3d 818 (4th Cir.

1993) (Table), cert. denied, 510 U.S. 1119 (1994); Frederick M. Lawrence,

Punishing Hate: Bias Crimes Under American Law 80-109 (1999) (sug-

gesting mode of analysis similar to O’Brien’s for distinguishing “prose-

eutable bias crimes,” including cross burning intended to threaten or

intimidate, from “protected racist speech”).

or viewpoint that a particular act of cross burning may be

intended to express. Cf. People v. Steven S., 31 Cal. Rptr. 2d

644, 651 (Ct. App. 1994) (“the expressive element of an un-

authorized cross burning on another person’s property is

incidental at best”). The statute does not suppress any more

expression than is necessary to prevent intimidation, as

reflected in its application only to cross burning for the

purpose of intimidation, and not to cross burning for other

purposes or cross burning for any purpose on one’s own

property.“

3. The First Amendment requires content neutrality

only when the government regulates expression, as such, or

when the government regulates expressive conduct because

of its expressive element. Otherwise, a statute may focus,

subject only to equal protection constraints, on “the phase of

the problem which seems most acute to the legislative

mind,” Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483,

489 (1955), rather than on all phases of the problem at the

same time and to the same extent. Cf. Friedman v. Rogers,

440 U.S. 1, 15 n.14 (1979) (observing that, in regulating

commercial speech to prevent misleading or deceptive

practices, “[t]here is no requirement that the State legislate

10 The final sentence of the statute—which provides that “{a]ny such

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

person or group of persons”—raises distinct issues concerning whether

the statute is sufficiently narrowly tailored. There is no constitutional

vice in permitting a jury to infer an intent to intimidate from speech or

expressive conduct considered in light of all the circumstances of the case.

See Mitchell, 508 U.S. at 489 (“The First Amendment does not

prohibit the evidentiary use of speech to establish the elements of a crime

or to prove motive or intent.”). If, however, the provision allows a jury to

find, merely from the fact that the defendant burned a cross, that he acted

with the intent to intimidate, the statute could reach cross burning that

was intended only to express an idea or viewpoint. No analogous pro-

vision appears in any federal statute that is used to prosecute cross

burning. See p. 2 note 1, supra.

more broadly than required by the problem it seeks to

remedy”) (citing Williamson); O’Brien, 392 U.S. at 375 (sus-

taining statute that prohibited the destruction of draft cards

but not other government-issued documents, the destruction

of which could produce comparable harms).

Thus, when regulating the conduct of intentional intimi-

dation, in furtherance of an interest unrelated to the sup-

pression of expression, a State may focus on intimidation in

one context. Virginia may, for example, prohibit intimi-

dation by burning a cross without, as the Virginia Supreme

Court suggested (Pet. App. 14), also prohibiting intimidation

by burning a circle or a square. That is because Virginia’s

valid concerns with the unique evils of intimidating cross

burning respond to a genuine threat to social order, a threat

not found in other contexts. The Commonwealth’s focus on

the actual problem that it has encountered raises no concern

that it is actually seeking to suppress disfavored ideas or

views.

4. The Virginia statute is unlike the Texas flag-burning

statute that was invalidated in Texas v. Johnson. There, the

Court held that the O’Brien standard was inapplicable be-

cause the State offered no valid interest unrelated to the

suppression of free expression to justify the statute. 491

U.S. at 407. The Court concluded that Texas’s asserted

interest in preventing breaches of the peace was unsup-

ported by any evidence that flag burning would provoke a

violent response. Id. at 407-410. And the Court concluded

that Texas’s interest in preserving the symbolic value of the

flag was related to the suppression of free expression. /d. at

410. Here, in contrast, the Commonwealth’s interest in pre-

venting coercive conduct that instills fear in its citizens is

inherent in the statute’s limitation to cross burning with the

intent to intimidate. The historical accuracy of Virginia’s

premise that such cross burning warrants proscription is

beyond question. See pp. 2-5 & note 2, supra.

The Virginia statute is also unlike the federal Flag Pro-

tection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777, which

the Court declined to review under the O’Brien standard in

United States v. Eichman, 496 U.S. 310, 315 (1990). In that

case, the Court held that the government’s asserted interest,

to protect the physical integrity of the American flag, was

“related to the suppression of free expression,” because it

“rests upon a perceived need to preserve the flag’s status as

a symbol of our Nation and certain national ideals.” Id. at

315-316. Again, the Virginia statute is justified by the Com-

monwealth’s interest in protecting its citizens from intimi-

dation, which is distinct from any interest in preventing the

use of cross burning as a symbol of an idea or philosophy."

B. The Virginia Statute Poses No Danger Of Idea Or

Viewpoint Discrimination Because The Same Reasons

That Justify A Ban Of All Intimidating Expression

Justify A Ban Of Intimidation By Cross Burning

The Virginia statute, even if viewed as a selective regu-

lation of proscribable expression, does not violate the First

Amendment under R.A.V. The government may constitu-

tionally proscribe all threatening and intimidating expres-

sion. See Watts v. United States, 394 U.S. at 707. It also

may distinguish within that category, provided that it does

so for a reason that is sufficiently content-neutral. See

11 The federal civil-rights statutes discussed above, if viewed as regu-

lations of a “nonspeech” element of expressive conduct in their application

to cross burning, would also satisfy the O’Brien standard. Those statutes

serve the government’s important interest in protecting citizens against

interference in the exercise of federal rights. That interest is unrelated to

the suppression of free expression. The statutes are narrowly tailored to

reach only those cross burnings that are intended to intimidate, leaving

ample alternative means for the expression of views antagonistic to the

persons and rights that the statutes protect. See Hayward, 6 F.3d at

1250-1251 (holding that Section 3631 satisfies the O’Brien test in pro-

secution involving cross burning).

R.A.V., 505 U.S. at 388. A prohibition of intimidation by

cross burning is justified for the same content-neutral rea-

sons that would justify a prohibition of all threatening or

intimidating expression.

In R.A.V., the Court explained that the First Amend-

ment’s prohivition against content discrimination in the

regulation of “fighting words” and other categories of pro-

scribable speech is “not absolute.” 505 U.S. at 387. The

Court identified various instances in which such discrimi-

nation is permissible because it poses no threat of driving

certain ideas or viewpoints from the marketplace. One such

instance is “[w]Jhen the basis for the content discrimination

consists entirely of the very reason the entire class of speech

of speech at issue is proscribable.” Id. at 388. That is be-

cause Is luch a reason, having been adjudged neutral enough

to support exclusion of the entire class of speech from First

Amendment protection, is also neutral enough to form the

basis of distinction within the class.” Ibid. Thus, Congress

could prohibit only threats of violence mi de against the

President, “since the reasons why threats of violence are

outside the First Amendment (protecting individuals from

the fear of violence, from the disruption that fear engenders,

and from the possibility that the threatened violence will

occur) have special force when applied to the person of the

President.” Ibid.

The same analysis applies to a statute that prohibits only

intentional intimidation by cross burning. A statute that

prohibited all intimidating speech (i.e., speech intended to

coerce its victims by putting them in fear of bodily harm)

would be permissible under the First Amendment. Intimi-

dating speech, like the threatening speech discussed in

R. A. V., is “outside the First Amendment,” and may be pro-

hibited for the same content-neutral reasons: to “protect[]

individuals from the fear of violence, from the disruption

that fear engenders, and from the possibility that the

threatened violence will occur.” R. A. V., 505 USS. at 388.

Those reasons have “special force,” 505 U.S. at 388, when

applied to intentional intimidation by cross burning. A State

could properly conclude that cross burning, when engaged in

to intimidate, has a unique potential for instilling fear in its

victims, disrupting the life of the community, and precipitat-

ing violent or other unlawful conduct. As history demon-

strates, cross burning, as contrasted with other intimidating

expression, has a particularly strong association with acts of

vigilantism and violence. See pp. 2-5 & note 2, supra; see

also, e. g., Steven S., 31 Cal. Rptr. 2d at 653 (“Given the role of

the Ku Klux Klan in our nation’s history, * * * a malicious

cross burning * * * can be uniquely threatening, fearsome,

and provocative.”). Because cross burning typically targets

its victims based on their race (or ethnicity or religion), its

intimidating impact is particularly likely to be felt not only

by its immediate victims, but also by others in the com-

munity who are of the same race (or ethnicity or religion).

See Symposium: Civil Rights Law in Transition, 27 Ford-

ham Urb. LJ. 1109, 1173 (Apr. 2000) (Professor Frederick

M. Lawrence) (“{S]tudies have shown that in the aftermath

of cross burnings on the lawn of a black family, other black

families in the area * * * respond as if they themselves

were attacked, of actual personal victimization. This is

evident with other ethnic and other groups as well. Conse-

quently, bias crimes affect the target community in such a

way that there is no equivalent with parallel crimes.”); 5.

Rep. No. 721, 90th Cong., Ist Sess. 4 (1967) (observing that

violence or the threat of violence “has been used against

[some] Negroes * * * in order generally to intimidate and

deter all Negroes in the exercise of their rights”). The

impact of intimidating cross burning on racial or other

groups within the community heightens the injury that such

conduct causes and justifies its special prohibition. Cf.

Mitchell, 508 U.S. at 488 (special harms of bias-motivated

crimes “provide[{] an adequate explanation for [a State's]

penalty-enhancement provision over and above mere dis-

agreement with the offender’s beliefs or biases ).

Intimidation by cross burning, in light of its history, is

therefore singularly proscribable for the same reasons that

intimidating expression is generally proscribable. A statute

such as Virginia’s presents “no significant danger of idea or

viewpoint discrimination.” R.A.V., 505 U.S. at 388.

12 It would be especially inappropriate to presume, in light of the

historical context, that Virginia enacted the statute for the impermissible

purpose of suppressing expression, rather than for the permissible pur-

pose of protecting its citizens from a particularly virulent form of intimi-

dation. As noted, the statute was originally adopted in 1952, at a time

when many of the views that a person may seek to advocate by burning a

cross, such as white supremacy and racial separation, were reflected in

state law. See, ¢.g., Brown v. Board of Educ., 347 U.S. 483 (1954); Loving

v. Virginia, 388 U.S. 1, 7 (1967) (characterizing as “obviously an

endorsement of the doctrine of White Supremacy” the justifications

offered by Virginia Supreme Court in 1955 to uphold the state anti-

miscegenation statute).

13 The federal civil-rights statutes discussed above are not selective

regulations of proscribable expression. Even if they were so viewed,

however, they would be permissible for reasons similar to those discussed

in the text. Cross burning or other expressive activity intended to

intimidate a person for exercising his federal right to occupy a dwelling

may cause particularly intense fear and disruption. Cf. Frisby v. Schultz,

487 U.S. 474, 486-487 (1988) (noting the uniquely disturbing impact of

picketing in the residential context). And, because the activity is directed

at a victim because of his race (or ethnicity, religion, etc.), it is likely to

instill fear not only in that victim, but also in others of the same group.

CONCLUSION

The judgment of the Virginia Supreme Court should be

reversed to the extent that it holds that a State cannot

exclusively proscribe cross burning with the intent to

intimidate.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

RALPH F. BOYD, JR.

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

BARBARA MCDOWELL

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

LINDA F. THOME

Attorneys

AucGustT 2002

APPENDIX

1. Section 241 of Title 18, U.S.C., provides, in pertinent

part:

If two or more persons conspire to injure, oppress,

threaten, or intimidate any person in any State, Territory,

Commonwealth, Possession, or District in the free exercise

or enjoyment of any right or privilege secured to him by the

Constitution or laws of the United States, or because of his

having so exercised the same;

R X * *& *

They shall be fined under this title or imprisoned not more

than ten years, or both; and if death results from the acts

committed in violation of this section or if such acts include

kidnapping or an attempt to kidnap, aggravated sexual

abuse or an attempt to commit aggravated sexual abuse, or

an attempt to kill, they shall be fined under this title or

imprisoned for any term of years or for life, or both, or may

be sentenced to death.

2. Section 242 of Title 18, U.S.C., provides:

Whoever, under color of any law, statute, ordinance,

regulation, or custom, willfully subjects any person in any

State, Territory, Commonwealth, Possession, or District to

the deprivation of any rights, privileges, or immunities

secured or protected by the Constitution or laws of the

United States, or to different punishments, pains, or penal-

ties, on account of such person being an alien, or by reason of

his color, or race, than are prescribed for the punishment of

citizens, shall be fined under this title or imprisoned not

more than one years, or both; and if bodily injury results

from the acts committed in violation of this section or if such

acts include the use, attempted use, or threatened use of a

(la)

dangerous weapon, explosives, or fire, shall be fined under

this title or imprisoned not more than ten years, or both; and

if death results from the acts committed in violation of this

section or if such acts include kidnapping or an attempt to

kidnap, aggravated sexual abuse, or an attempt to commit

aggravated sexual abuse, or an attempt to kill, shall be fined

under this title, or imprisoned for any term of years or for

life, or both, or may be sentenced to death.

3. Section 245(b) of Title 18, U.S.C., provides, in

pertinent part:

Whoever, whether or not acting under color of law, by

force or threat of force willfully injures, intimidates or

interferes with, or attempts to injure, intimidate or interfere

with—

(1) any person because he is or has been, or in order

to intimidate such person or any other person or any class

of persons from—

(A) voting or qualifying to vote, qualifying or

campaigning as a candidate for elective office, or

qualifying or acting as a poll watcher, or any legally

authorized election official, in any primary, special,

or general election;

(B) participating in or enjoying any benefit,

service, privilege, program, facility, or activity

provided or administered by the United States;

any perquisite thereof, by any agency of the United

States;

(D) serving, or attending upon any court in

connection with possible service, as a grand or petit

juror in any court of the United States;

(E) participating in or enjoying the benefits of

any program or activity receiving Federal financial

assistance; or

(2) any person because of his race, color, religion or

national origin and because he is or has been—

(A) enrolling in or attending any public school

or public college;

(B) participating in or enjoying any benefit

service, privilege, program, facility or activity pro-

vided or administered by any State or subdivision

thereof;

any perquisite thereof, by any private employer or

any agency of any State or subdivision thereof, or

joining or using the services or advantages of any

labor organization, hiring hall, or employment

agency;

(D) serving, or attending upon any court of any

State in connection with possible service, as a grand

or petit juror;

(E) traveling in or using any facility of inter-

state commerce, or using any vehicle, terminal, or

facility of any common carrier by motor, rail, water,

or air;

(F) enjoying the goods, services, facilities,

privileges, advantages, or accommodations of any

inn, hotel, motel, or other establishment which

provides lodging to transient guests, or of any

restaurant, cafeteria, lunchroom, lunch counter, soda

fountain, or other facility which serves the public

and which is principally engaged in selling food or

beverages for consumption on the premises, or of

any gasoline station, or of any motion picture house,

theater, concert hall, sports arena, stadium, or any

other place of exhibition or entertainment which

serves the public, or of any other establishment

which serves the public and (i) which is located

within the premises of any of the aforesaid establish-

ments or within the premises of which is physically

located any of the aforesaid establishments, and (ii)

which holds itself out as serving patrons of such

establishments; or

(3) during or incident to a riot or civil disorder,

any person engaged in a business in commerce or

affecting commerce, including, but not limited to,

any person engaged in a business which sells or

offers for sale to interstate travelers a substantial

portion of the articles, commodities, or services

which it sells or where a substantial portion of the

articles or commodities which it sells or offers for

sale have moved in commerce; or

(4) any person because he is or has been, or in

order to intimidate such person or any other person

or any class of persons from

(A) participating, without discrimination on

account of race, color, religion or national origin,

in any of the benefits or activities described in

subparagraphs (1)(A) through (1)(E) or

subparagraphs (2)(A) through (2)(F); or

(B) affording another person or class of

persons opportunity or protection to so parti-

cipate; or

(5) any citizen because he is or has been, or in

order to intimidate such citizen or any other citizen

from lawfully aiding or encouraging other persons to

participate, without discrimination on account of

race, color, religion or national origin, in any of the

benefits or activities described in subparagraphs

(1)(A) through (1)(E) or subparagraphs (2)(A)

through (2)(F), or participating lawfully in speech or

peaceful assembly opposing any denial of the

opportunity to so participate—

shall be fined under this title, or imprisoned not more than

one year, or both; and if bodily injury results from the acts

committed in violation of this section or if such acts include

the use, attempted use, or threatened use of a dangerous

weapon, explosives, or fire shall be fined under this title, or

imprisoned not more than ten years, or both; and if death

results from the acts committed in violation of this section or

if such acts include kidnapping or an attempt to kidnap,

aggravated sexual abuse or an attempt to commit

aggravated sexual abuse, or an attempt to kill, shall be fined

under this title or imprisoned for any term of years or for

life, or both, or may be sentenced to death. As used in this

section, the term “participating lawfully in speech or

peaceful assembly” shall not mean the aiding, abetting, or

inciting of other persons to riot or to commit any act of

physical violence upon any individual or against any real or

personal property in furtherance of a riot. Nothing in sub-

paragraph (2)(F) or (4)(A) of this subsection shall apply to

the proprietor of any establishment which provides lodging

to transient guests, or to any employee acting on behalf of

such proprietor, with respect to the enjoyment of the goods,

services, facilities, privileges, advantages, or accommoda-

tions of such establishment if such establishment is located

within a building which contains not more than five rooms

for rent or hire and which is actually occupied by the pro-

prietor as his residence.

R * * „ *

4. Section 1982 of Title 42, U.S. C., provides:

All eitizens of the United States shall have the same right,

in every State and Territory, as is enjoyed by white citizens

thereof to inherit, purchase, lease, sell, hold, and convey real

and personal property.

5. Section 3631 of Title 42, U.S.C., provides:

Whoever, whether or not acting under color of law, by

force or threat of force willfully injures, intimidates or

interferes with, or attempts to injure, intimidate or interfere

with—

(a) any person because of his race, color, religion, sex,

handicap (as such term is defined in section 3602 of this

title), familia] status (as such term is defined in section

3602 of this title), or national origin and because he is or

has been selling, purchasing, renting, financing, occupy-

ing, or contracting or negotiating for the sale, purchase,

rental, financing or occupation of any dwelling, or ap-

plying for or participating in any service, organization, or

facility relating to the business of selling or renting

dwellings; or

(b) any person because he is or has been, or in order

to intimidate such person or any other person or any

class of persons from—

(1) participating, without discrimination on

account of race, color, religion, sex, handicap (as

such term is defined in section 3602 of this title),

familial status (as such term is defined in section

3602 of this title), or national origin, in any of the

activities, services, organizations or facilities

described in subsection (a) of this section; or

(2) affording another person or class of persons

opportunity or protection so to participate; or

order to discourage such citizen or any other citizen

from lawfully aiding or encouraging other persons to

participate, without discrimination on account of

race, color, religion, sex, handicap (as such term is

defined in section 3602 of this title), familial status

(as such term is defined in section 3602 of this title),

or national origin, in any of the activities, services,

organizations or facilities described in subsection

(a) of this section, or participating lawfully in speech

or peaceful assembly opposing any denial of the

opportunity to so participate—

shall be fined under title 18 or imprisoned not more than one

year, or both; and if bodily injury results from the acts

committed in violation of this section or if such acts include

the use, attempted use, or threatened use of a dangerous

weapon, explosives, or fire shall be fined under title 18 or

imprisoned not more than ten years, or both; and if death

results from the acts committed in violation of this section or

if such acts include kidnapping or an attempt to kidnap,

aggravated sexual abuse, or an attempt to commit aggra-

vated sexual abuse; or an attempt to kill, shall be fined under

title 18 or imprisoned for any term of years or for life, or

both.

6. The Virginia cross-burning statute, Va. Code Ann.

§ 18.2-423 (Michie 1996), provides:

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.

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.