Amicus Curiae Brief — Virginia v. Black

No. 01-1107 meq

IN THE

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner.

vs

BARRY ELTON BLACK, RICHARD J. ELLIOTT.

and JONATHAN O'MARA,

Respondents.

On Writ of Certiorari

to the Supreme Court of Virginia

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

Counsel of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cylf@cjlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

1) Does Virginia's statute prohibiting burning a cross with

intent to intimidate violate the rule of R.A.V. v. St Paul, by

discriminating between types of threats on the basis of content

unrelated to the state’s legitimate interest in protecting people

from threats?

2) Does the statute prohibit speech other than constitution-

ally proscribable threats? If so, are those applications sever-

able?

3) After severing any severable, invalid applications, is the

Statute substantially overbroad?

(i)

TABLE OF CONTENTS

Questions presented ................. sebesseseeger

Table of authorities 2.2... een \

Interest of amicus curiae ©... 6.6.6.6 6 6 0 oo ee |

Summary of facts and case... . 2... eee 2

Summary of argument ... ee 3

SEE oy orecececcevcnesiesscocseuasicscescess 3

I

rhe overbreadth doctrine should be used sparingly,

and only as a last resort ©... 2... eee 3

A. The overbroad overbreadth doctrine ........... 3

B. The legitimate scope of judicial review ......... 5

C. Collateral damage ...........06. 66 6c eee, 8

il

The statute validly prohibits unprotected threats ......... 9

A. Proscribable threats .... 2... 6... eee )

B. Content discrimination ...... 2... 6.6.6 ee eee 13

ill

Narrowing construction and severability must be

considered before determining if any overbreadth

ES 9c conc cectesccnceussnucevennassant 17

A. Narrowing construction ..............600065 18

(iit)

B. Severability

Conclusion

19

TABLE OF AUTHORITIES

Cases

Bayard v. Singleton, 1 N. C. 15 (1787) .

Black v. Commonwealth, 262 Va. 764.

553 S. E. 2d 738 (2001) ..

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

466 U.S. 485, 80 L. Ed. 2d 502.

SOS DB. CR. TSOP CISD 2c ccc ccc ccccce:

Brandenburg v. Ohio, 395 U. S. 444, 23 L. Ed. 2d 430,

89S. Ct. 1827 (1969) for .. 10,

Broadrick v. Oklahoma, 413 U. S. 601. 37 L. Ed. 2d 830.

93 S. Ct. 2908 (1973) .... ep 5. 6. 7.

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

86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985) ...... 7,19,

Brown v. Board of Education, 347 U. S. 483.

98 L. Ed. 873. 74S. Ct. 686 (1954)

Clark v. Community for Creative Non-Violence, 468 U. S.

288, 82 L. Ed. 2d 221, 104S. Ct. 3065 (1984)

Dennis v. United States, 341 U. S. 494, 95 L. Ed. 1137,

71S. Ct. 857 (1951) ...

Erie v. Pap’s A.M., 529 U.S. 277, 146 L. Ed. 2d 265,

120 S. Ct. 1382 (2000) ..... ‘euahuuswauwes 14, 15,

Gitlow v. New York, 268 U.S. 652, 69 L. Ed. 1138.

Nee ee ee dew

Houston v. Hill, 482 U.S. 451, 96 L. Ed. 2d 398,

Se Gh Ge AOE oc cccccceseesucecacesceess

In re Steven S., 25 Cal. App. 4th 598,

31 Cal. Rptr. 2d 644 (1994) ................ 12, 15,

2, 13, 15, 16, 17, 18,

20

. 18

1]

10

16

1]

Lewis v. New Orleans, 415 U.S. 130, 39 L. Ed. 2d 214,

A BO en 4,5,7

Liverpool, New York & Philadelphia S. S. Co. v.

Commissioners of Emigration, 113 U. S. 33,

28 L. Ed. 899, 5 S. Ct. 352 (1885) ................ 4,5

Los Angeles v. Alameda Books, Inc.,535 U.S. _,

152 L. Ed. 2d 670, 122 S. Ct. 1728 (2002) .......... 10

Madsen v. Women’s Health Center, Inc., 512 U. S. 753,

129 L. Ed. 2d 593. 114S. Ct. 2516(1994) ..... sey

Marbury v. Madison, | Cranch (5 U.S.) 137,

er ee eee 6

Marks v. United States, 430 U.S. 188, 51 L. Ed. 2d 260,

Pe Gb Ga SHEED oe bcd uenecsivetenecéessseces 14

McCalden v. California Library Ass'n,

SD Oe ee SPREE COUED cb badeccderebectscsere 12

Minnesota v. Mille Lacs Band of Chippewa Indians, 526

U.S. 172, 143 L. Ed. 2d 270, 119 S. Ct. 1187 (1999) .. 20

NAACP v. Button, 371 U. S. 415, 9 L. Ed. 2d 405,

Sey a Ges SUED oped dicbccssvecceseeses vos ore

New York v. Ferber, 458 U. S. 747, 73 L. Ed. 2d 1113,

102 S. Ct. 3348 (1982) .............. 5,7, 8, 17, 20, 21

Newdow v. U. S. Congress, 292 F. 3d 597 (CA9 2002) ... 8

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

Sl i i ae OU ED nb oc ddaceuanesseeseoenees 2

Parker v. Levy, 417 U. S. 733, 41 L. Ed. 2d 439,

FO ay GR. BOG CHOSE oc ccccccccccesenccssccccesess 8

R. A. V. v. St. Paul, 505 U. S. 377, 120 L. Ed. 2d 305,

See Os Gb SPEED nececcucccecss 9, 11, 13, 15, 16

Rankin v. McPherson, 483 U. S. 378, 97 L. Ed. 2d 315,

ee ee 1]

Schaumburg v. Citizens for a Better Environment,

444 U.S. 620, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980) .. 4

Schenck v. United States, 249 U. S. 47, 63 L. Ed. 470,

ER ee eee ue een 1]

Secretary of State of Maryland v. Joseph H. Munson Co.,

467 U.S. 947, 81 L. Ed. 2d 786,

Pt PE sctcecenaseuuesehaateenes 5,7

Shelton v. Tucker, 364 U. S. 479, 5 L. Ed. 2d 231,

ee ee Dn... oc ecauuseeecseseeeeees 8

Simon & Schuster, Inc. v. Members of N. Y. State Crime

Victims Bd., 502 U. S. 105, 116 L. Ed. 2d 476,

Se a EE odd dscdnndcsennueenéwesenes 10

State v. T.B.D., 656 So. 2d 479 (Fla. 1995)............ 12

United States v. Eichman, 496 U. S. 310,

110 L. Ed. 2d 287, 110 S. Ct. 2404(1990) ........ 5, 10

United States v. Fulmer, 108 F. 3d 1486 (CAI 1997) .... 11

United States v. Gilbert, 884 F. 2d 454 (CA9 1989) ..... 1]

United States v. Grace, 461 U. S. 171, 75 L. Ed. 2d 736,

ha: SD ccnchdeceesceddinbeanonees 19

United States v. Hanna, 293 F. 3d 1080 (CA9 2002) .... 18

United States w. J. H. H., 22 F. 3d 821 (CA8 1994) ..... 12

United States v. Khorrami, 895 F. 2d 1186 (CA7 1990) .. 12

United States v. Mitchell, 812 F. 2d 1250 (CA9 1987)... 12

United States v. Orozco-Santillan, 903 F. 2d 1262

Di. . .col cee ase seene han beneeenee dane 11

United States v. O’Brien, 391 U. S. 367, 20 L. Ed. 2d 672,

OSB. Ch. ISFICIGGED occ ccccvcccccvcccscecscce 14, 16

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

105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989) .......... 16

Watts v. United States, 394 U.S. 705, 22 L. Ed. 2d 664,

Sr Ot REED cc peiceccedbescoueeseucsaes 11

Wisconsin v. Mitchell, 568 U. S. 476, 124 L. Ed. 2d 436,

i Ce, Sn. vcseavesckesedecenesds 16, 17

Young v. New York City Transit Auth., 903 F. 2d 146

SS CUE c obec vccccenedeneseosccusesesnnseuees 7

United States Constitution

Th, Oe GR. BE EOE cc ccdsccssecsuccedsenevisees 8

PPP rr rere rer TT TTT TT )

re. we. ce eeebebenshecedvneseeteennns 5

State Statute

We, Cate BIDDER cc cccccccccccecccsccscsvccvess 2

Miscellaneous

The Declaration of Independwnce (1776)...........-.... 9

Reed, The State Is Strong But | am Weak: Why the

“Imminent Lawless Action” Standard Should Not Apply to

Targeted Speech that Threatens Individuals with Violence,

36 Aan. Bus. 1. 5. 77 GAGGED oc ccc cccscccccsess 10, 11

IN THE

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner,

VS.

BARRY ELTON BLACK, RICHARD J. ELLIOTT,

and JONATHAN O’ MARA,

Respondents.

OOOO oooeeeaa=Qna

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

——

INTEREST OF AMICUS CURIAE

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

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the due process protection

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

society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

The present case involves a statute enacted to protect the

people from terrorist threats. The Supreme Court of Virginia

held that the First Amendment precludes enforcement of this

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

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

made to the preparation or submission of this brief.

All parties have given written consent to the filing oi this brief.

statute in the present case even though the defendants’ act is not

protected expression. This result is contrary to the interests

CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On May 2, 1998, defendants Richard Elliott and Jonathan

O’Mara, along with David Targee, attempted to burn a cross in

the back yard of James S. Jubilee. Mr. Jubilee is a neighbor of

Elliott’s, and there had been a dispute between them arising

from Clliott firing guns in his back yard. Black v. Common-

wealth, 262 Va. 764, 768, 553 S. E. 2d 738, 740 (2001).

O’Mara pleaded guilty to attempted cross burning and

conspiracy to commit cross burning, Va. Code § 18.2-423, but

reserved the right to appeal on the issue of the constitutionality

of that statute. Elliott went to trial on the same charges and was

convicted by a jury of attempt but acquitted of conspiracy. 262

Va., at 769, 553 S. E. 2d, at 740-741. The Court of Appeals

affirmed. O'Mara v. Commonwealth, 33 Va. App. 525, 535

S. E. 2d 175 (2000).

Defendant Barry Black burned a cross at a Ku Klux Klan

rally, which was held on private property with permission of the

owner. Black, 262 Va., at 782, 553 S. E. 2d, at 748 (Hassell, J.,

dissenting). A neighbor testified that she feared arson of her

home and harm to her children. /d., at 782, 553 S. E. 2d, at

749. The Court of Appeals affirmed in an unpublished opinion,

relying on its O'Mara opinion. See id., at 769, 553 S. E. 2d, at

741 (majority); App. to Pet. for Cert. 46.

The Virginia Supreme Court consolidated the cases and

reversed in a 4-3 decision. “We conclude that . . . the selectiv-

ity of its statutory proscription is facially unconstitutional

because it prohibits otherwise permitted speech solely on the

basis of its content, and the statute is overbroad.” 262 Va., at

768, 553 S. E. 2d, at 740.

SUMMARY OF ARGUMENT

When a court invokes the First Amendment “overbreadth”

doctrine, it refuses to enforce a statute in the case before it, even

though the statute does not conflict with the Constitution as

applied to that case. This result is contrary to the basis for

judicial review, contrary to the people’s right of self-govern-

ment, and of doubtful legitimacy. If “overbreadth” is not to be

abandoned altogether, it should be applied sparingly and as a

last resort.

The statute at issue in this case prohibits threats, which are

not protected speech. It does distinguish some threats from

others on the basis of content, but it does so on a permissible

basis. Cross burning is a particularly threatening type of threat.

The fact that an otherwise valid statute has a greater impact on

one group of speakers than another does not render it invalid.

The Virginia Supreme Court conducted its overbreadth

analysis without considering severability. This is an error of

federal law under Brockett v. Spokane Arcades. The determi-—

nation of whether a statute actually is severable is a question of

state law, not reviewable by this Court, but no such determina-

tion was made here. /f this statute has any invalid applications

potentially rendering it overbroad, severability must be consid-

ered before deciding whether any unseverable, invalid applica-

tions are substantial in comparison to the valid applications.

ARGUMENT

I. The overbreadth doctrine should be used sparingly,

and only as a last resort.

A. The Overbroad Overbreadth Doctrine.

Defendants Elliott and O’ Mara committed the act of which

they were convicted. The state may constitutionally punish this

act. The state has passed a statute clearly prohibiting and

punishing this act. Yet the Supreme Court of Virginia nonethe-

less held that the Constitution of the United States prohibits the

enforcement of that statute in this case. Such a result would

surely strike Jane and John Q. Public as odd. The logic of the

overbreadth doctrine often leads to extremes. See Lewis v. New

Orleans, 415 U. S. 130, 136-137 (1974) (Blackmun, J.,

dissenting). When that happens, it is time to reexamine the

premises.

The essence of an overbreadth challenge is that . .en though

the party before the court has committed an act which the

legislature can and has prohibited, he should nonetheless escape

punishment because the same statute may, in other contexts,

chill the exercise of First Amendment rights. See Schaumburg

v. Citizens for a Better Environment, 444 U. S. 620, 634

(1980). Generally, such an argument requires the court to deal

with hypothetical situations “and pass upon. . . constitutionality

... as an abstract question.” Liverpool, New York & Philadel-

phia S. S. Ce. v. Commissioners of Emigration, 113 VU. S. 33,

39 (1885). Such a course is unwise and possibly illegitimate.

In the present case, there is a third defendant whose case is

joined for the purpose of appeal who has at least a plausible

argument that the statute cannot be constitutionally applied to

his conduct. While that fortuity mitigates the abstraction

problem, it still leaves the problem of formulating a constitu-

tional rule broader than needed to cover the case before the

court.

“That is not the mode in which this court is accustomed or

willing to consider such questions. It has no jurisdiction to

pronounce any statute, either of a State or of the United

States, void, because irreconcilable with the Constitution,

except as it is called upon to adjudge the legal rights of

litigants in actual controversies. In the exercise of that

jurisdiction, it is bound by two rules, to which it has rigidly

adhered, one, never to anticipate a question of constitu-

tional law in advance of the necessity of deciding it; the

other, never to formulate a rule of constitutional law

broader than is required by the precise facts to which it is to

be applied. These rules are safe guides to sound judgment.

It is the dictate of wisdom to follow them closely and

carefully.” Jbid.

Liverpool’s statement that the Court has “rigidly adhered”

to these rules is no longer true. The overbreadth doctrine

routinely involves both advance rulings on constitutionality and

the formulation of rules broader than necessary for decision.

These deviations have not gone unnoticed by the Members of

the Court. Individual opinions have questioned both the

legitimacy and the wisdom of the overbreadth doctrine. See

Lewis, 415 U. S., at 136-142 (Blackmun, J., dissenting); New

York v. Ferber, 458 U. S. 747, 780-781 (1982) (Stevens, J.,

concurring in the judgment); Secretary of State of Md. v.

Joseph H. Munson Co., 467 U. S. 947, 976-978 (1984) (Rehn-

quist, J., dissenting). Majority opinions have also expressed

reservations. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601,

610-611 (1973).

These reservations are well-founded. If the overbreadth

doctrine is not to be abandoned altogether, it should at the very

least be kept on a tight leash.

B. The Legitimate Scope of Judicial Review.

Although people speak freely of courts “striking down”

statutes, nowhere in the Constitution is such a function assigned

to the judicial branch. Instead, the Constitution establishes a

hierarchy of laws, and the judiciary must necessarily apply the

higher law in preference to the lower one when the laws

conflict. That preference is explicit in the case of state statutes,

U.S. Const., Art. VI, cl. 2, and implicit in the case of federal

statutes.

The legitimacy of judicial review is well established in

cases where the Constitution and the statute actually command

different results in the case before the court. See, e.g., Bayard

v. Singleton, 1 N. C. 15, 18 (1787) (jury trial); United States v.

Eichman, 496 U. S. 310, 319 (1990) (flag burning). In these

situations, the court must decide whether the statute conflicts

with the Constitution because and only because there is no other

way to decide the case.

“It is emphatically the province and duty of the judicial

department to say what the law is. Those who apply the

rule to particular cases, must of necessity expound and

interpret that rule. If two laws conflict with each other, the

courts must decide on the operation of each.

“So if a law be in opposition to the constitution; if both

the law and the constitution apply to a particular case, so

that the court must either decide that case conformably to

the law, disregarding the constitution; or conformably to the

constitution, disregarding the law; the court must determine

which of these conflicting rules governs the case. This is of

the very essence of judicial duty.

“If, then, the courts are to regard the constitution; and

the constitution is superior to any ordinary act of the

legislature; the constitution, and not such ordinary act, must

govern the case to which they both apply.” Marbury v.

Madison, | Cranch(5 U.S.) 137, 177-178 (1803) (emphasis

added).

Legitimate judicial review is limited to the necessity of

deciding cases, as outlined in Marbury. Broadrick, 413 U.S..,

at 611. That necessity is limited to cases to which “both the

law and the constitutica apply.” If the Constitution does not

apply to a case, then the ‘ase is governed solely by the statute,

and there is no constitutional issue to decide.

“Embedded in the traditional rules governing constitu-

tional adjudication is the principle that a person to whom a

statute may constitutionally be applied will not be heard to

challenge that statute on the ground that it may conceivably

be applied unconstitutionally to others, in other situations

not before the Court. [Citations.] A closely related princi-

ple is that constitutional rights are personal and may not be

asserted vicariously. [Citation.] These principles rest on

more than the fussiness of judges. They reflect the convic-

tion that under our constitutional system courts are not

roving commissions assigned to pass judgment on the

validity of the Nation's laws.” Id., at 610-611 (emphasis

added).

This is not a matter of policy; this is a matter of the boundaries

of the judicial function. It is a matter of usurpation of “the

prerogative of democratic government.” Lewis, 415 U. S., at

140 (Blackmun, J., dissenting); see also Ferbe , 458 U. S.., at

767-768, n. 20 (Article III implications of the Liverpool

principle).

The overbreadth doctrine is sometimes justified by “the

danger of tolerating, in the area of First Amendment freedoms,

the existence of a penal statute susceptible of sweeping and

improper application.” NAACP v. Button, 371 U.S. 415, 433

(1963). But does the end justify the means?

Surely no one would contend that a court could reach out

and “strike down” a statute on its own initiative, with no case

before it at all. The patent illegitimacy of such a decree

requires that the statute be tolerated until someone brings a

challenge. Why can it not be further tolerated until a challenge

is brought in a case where the constitutional right in question is

genuinely at issue? Further, once such a challenge is brought,

why is it necessary to declare the statute invalid any further

than is necessary to avoid conflict with the Constitution in

actual application?

With modern procedures, there is no need to await a

criminal prosecution. See Munson, 467 U. S., at 977-978

(Rehnquist, J., dissenting). While the cost of declaratory and

injunctive relief is a concern, there appears to be a more than

adequate supply of litigation. The panhandlers of New York’s

subway obtained representation. See Young v. New York City

Transit Auth., 903 F. 2d 146, 147 (CA2 1990). When the State

of Washington passed a “moral nuisance” statute, a complaint

was on file within days. Brockett v. Spokane Arcades, Inc.,472

U. S. 491, 507 (1985) (O’Connor, J., concurring). Even the

Pledge of Allegiance has attracted a willing and able opponent

in litigation. See Newdow v. U. S. Congress, 292 F. 3d 597

(CA9 2002) (stay granted June 27, 2002).

The notion that the First Amendment is suffering from a

dearth of litigants seems out of touch with reality. Even if

necessity could ever justify an otherwise improper constitu-

tional edict, which is doubtful, a stronger showing of necessity

should be required.

C. Collateral Damage.

The invalidation of an entire statute legalizes conduct that

the people, through the democratic process, have deemed it

necessary to prohibit. Even if the legislature enacts a new

statute, it cannot do so retroactively. See U.S. Const., Art. I,

§ 10. Given that the legislative process is constructed to make

blocking legislation easier than enacting legislation, it is not

always possible to enact a new statute even if favored by a

majority. It may be true that “if some constitutionally unpro-

tected speech [or conduct] must go unpunished, that is a price

worth paying to preserve the vitality of the First Amendment.”

Houston v. Hill, 482 U.S. 451, 462, n. 11 (1987). Whether the

price is worth paying, however, begs the question of whether

the price needs to be paid.

This Court has been reluctant to apply the overbreadth

doctrine where the statute has a substantial number of valid

applications. Parker v. Levy, 417 U. S. 733, 760 (1974).

Furthermore, the overbreadth doctrine must be carefully tied to

the circumstances warranting its exception to the usual rules of

constitutional adjudication. New York v. Ferber, 458 U. S.., at

769. Overbreadth is a “last resort.” /bid. (quoting Broadrick,

413 U.S., at 613).

When the legislative branch regulates in the area of funda-

mental rights, the judiciary admonishes that the least drastic

means must be employed. See, e.g., Shelton v. Tucker, 364

U. S. 479, 488 (1960). The judiciary should heed the same

advice. The right of self-government is a fundamental right.

See U. S. Const., Art. IV, § 4; The Declaration of Independ-

ence, para. 2 (1776). The overbreadth doctrine should be

invoked, if at all, only when no less drastic interference with

democratic government is available.

This is not such a case. The principal scope of the statute

is the prohibition of threats, which lie outside the protection of

the First Amendment. If the statute does prohibit any protected

expression, a court must ask if those applications are severable

before applying the overbreadth doctrine. If there is any

remaining overbreadth at that point, it is not substantial.

II. The statute validly prohibits unprotected threats.

A. Proscribable Threats.

A statute which prohibits a threat is prohibiting speech or

expressive conduct on the basis of its content. This Court's

previous cross-burning case, RX. A. V. v. St. Paul, 505 U.S. 377

(1992), discussed the constitutional limits of such a prohibition.

“Content-based regulations are presumptively invalid.

[Citations.| From 1791 to the present, however, our

society, like other free but civilized societies, has permitted

restrictions upon the content of speech in a few limited

areas, which are ‘of such slight social value as a step to

truth that any benefit that may be derived from them is

clearly outweighed by the social interest in order and

morality.” ” /d., at 382-383 (quoting Chaplinsky v. New

Hampshire, 315 U. 8. 568, 572 (1942)).

Threats are one such limited area. See id, at 388. Threats

as such contribute little or nothing to the marketplace of ideas.

It is difficult to imagine any idea expressed by a threat, other

than the intent to commit a crime, that could not be expressed

without a threat. A government which actually wanted to

“drive certain ideas or viewpoints from the marketplace,”

10

Simon & Schuster, Inc. v. Members of N. Y. State Crime

Victims Bd., 502 U. S. 105, 116 (1991), would find such a

prohibition a particularly ineffective means toward that end.

On the other side, “the social interest in order” weighs

particularly heavy in the case of threats. In most free speech

cases, the harm caused by the speech is a diffuse one, affecting

society in general but not causing specific harm to a particular

individual or a small group of people, such as a family. See,

e.g., United States v. Eichman, 496 U.S. 310, 312 (1990) (flag

burning); Los Angeles v. Alameda Books, Inc., 535 U.S. _,

152 L. Ed. 2d 670, 681, 122 S. Ct. 1728, 1734 (2002) (plurality

opinion) (secondary effects of “adult” businesses); Branden-

burg v. Ohio, 395 U.S. 444, 446 (1969) (per curiam) (vague

reference to possibility of “some revengance”). A threat

directed to a specific person is quite different. See Reed, The

State Is Strong But I am Weak: Why the “Imminent Lawless

Action” Standard Should Not Apply to Targeted Speech that

Threatens Individuals with Violence, 38 Am. Bus. L. J. 177,

197-198 (2000). It causes that person to live in fear. It may

cause the person to forego the exercise of his right to vote or to

live in the neighborhood of his choice. Few, if any, kinds of

speech cause more acute harm merely by their utterance than do

threats.

The reduced danger of idea suppression and the direct harm

that they cause make threats a distinct analytical category,

different from both the abstract advocacy of violent action and

“fighting words.” Statutes directed at advocacy, such as those

at issue in Brandenburg and Dennis v. United States, 341 U.S.

494, 496 (1951), present a far greater danger to the expressions

of ideas. Revolutionary ideology cannot be expressed without

at least bordering on the violation of such statutes. A prohibi-

tion on threatening people, in contrast, is easily avoided by

anyone interested only in expressing ideas.

An equally important distinction is that neither advocacy

nor fighting words directly cause any serious harm, while

threats do. Advocacy of violence and fighting words cause

1]

harm only indirectly, by inciting another person to violence.

The “substantive evil[],” see Schenck v. United States, 249

U. S. 47, 52 (1919), which justifies the prohibition is only the

act, not the advocacy of it. A time interval between advocacy

and act attenuates the connection and weakens the state’s

interest in prohibiting the advocacy. See Gitlow v. New York,

268 U. S. 652, 673 (1925) (Holmes, J., dissenting). Thus, only

incitement to imminent violence may be prohibited. See

Brandenburg, 395 U. S., at 447. A threat causes harm to its

target by itself, immediately upon receipt, regardless of whether

it is ever carried out and regardless of whether it is conditional.

See United States v. Gilbert, 884 F. 2d 454, 458 (CA9 1989);

Reed, 38 Am. Bus. L. J., at 197-198. The harm threatened need

not be immediate or unconditional before the state may prohibit

the threat, because the threat itself causes substantial harm

immediately and unconditionally.

This Court has repeatedly recognized that “threats of

violence are outside the First Amendment... .” R. A. V., 505

U. S., at 388; Madsen v. Women's Health Center, Inc., 512

U.S. 753, 773 (1994). However, this Court has not yet defined

what is a proscribable threat. We know from Watts v. United

States, 394 U.S. 705, 708 (1969) (per curiam), that a statement

which, in its context, was only “political hyperbole” is not a

“true ‘threat,’ ” but that case provides very little guidance

beyond its specific facts. Rankin v. McPherson, 483 U.S. 378,

386-387 (1978) similarly acknowledges that threats may be

proscribed, holds that the statement in question was not a threat,

citing Watts, and sheds little additional light.

United States v. Orozco-Santillan, 903 F. 2d 1262, 1265

(CA9 1990) stated a test for a “true threat.” “Whether a

particular statement may properly be considered to be a threat

is governed by an objective standard—whether a reasonable

person would foresee that the statement would be interpreted by

those to whom the maker communicates the statement as a

serious expression of intent to harm or assault.” Other circuits

and state courts have adopted similar tests. See, e.g., United

12

States v. Fulmer, 108 F. 3d 1486, 1491 (CA1 1997); United

States v. Khorrami, 895 F. 2d 1186, 1192 (CA7 1990); United

States v. J. H. H., 22 F. 3d 821, 827-828 (CA8 1994); In re

Steven S., 25 Cal. App. 4th 598, 608, 31 Cal. Rptr. 2d 644, 648

(1994).

The only requirement is that a reasonable person in the

position of the target would take the threat as a serious one.

There is no requirement that the threat be immediate or uncon-

ditional, that the maker subjectively intend to carry it out, or

even that he have the ability to do so. See United States v.

Mitchell, 812 F. 2d 1250, 1256 (CA9 1987). Proscribable

threats are not limited to bodily injury, notwithstanding some

loose language in some cases. Serious threats to property may

also be prohibited. See McCalden v. California Library Ass'n,

955 F. 2d 1214, 1217, 1222 (CA9 1992) (threat to property,

First Amendment defense rejected). A threat to burn down a

person’s house if he does not move out of the neighborhood is

surely within the power of the state to prohibit.

There can be no doubt that a reasonable person in Mr.

Jubilee’s position would take a burning cross on his property as

an expression of a serious intent to do harm. Russell Jones, the

target of the cross-burning in R. A. V. and J. H. H.* testified, “a

cross burning represents ‘a threat of death’ to an African-

American, a ‘warning that you have to get out of this neighbor-

hood . . . [or] you will be sorry.” ” J. H. H., 22 F. 3d, at 827.

The Supreme Court of Florida noted that cross-burning “is one

of the most virulent forms of ‘threats of violence’ .. . .” State

v. T. B. D., 656 So. 2d 479, 481 (1995). A cross burning

directed at a specific target is an unprotected threat, well within

the power of the state to prohibit.

2. After this Court’s decision in R. A.

charged R. A. V. and his cohorts J. H.

civil rights laws. See J. H. H., 22 F.

V., the United States Attorney

H. and L. M. J. under the federal

3d, at 824.

13

B. Content Discrimination.

The Virginia Supreme Court held that Virginia’s cross-

burning statute ran afoul of the rule of R. A. V. because it is

“selective regulation of speech based upon content.” Black v.

Commonwealth, 262 Va. 764, 771, 553 S. E. 2d 738, 742

(2001) (capitalization omitted). This is an overly broad

interpretation of R. A. V.

R. A. V. held that areas of speech that can be “regulated

because of their constitutionally proscribable content” may not

“be made the vehicle for content discrimination unrelated to

their distinctively proscribable content.” 505 U. S., at 383-384

(emphasis omitted). On the other hand, “content discrimina-

tion” is permitted “[w]Jhen the basis for [it] consists entirely of

-the very reason the entire class of speech at issue is proscribabie

.... Id., at 388. For example, the state may discriminate

among obscene materials by the degree of obscenity. /bid. Of

particular relevance to this case, R. A. V. noted that “a State

may choose to regulate price advertising in one industry but not

in others, because the risk of fraud . . . is in its view greater

there.” /d., at 388-389. Analogously, a state may prohibit cross

burning selectively if the degree of terror caused by this

particular form of threat “is in its view greater there.”

The distinction between valid content discrimination along

the same dimension that makes the category proscribable in the

first place and invalid discrimination based on some other

aspect of the content is similar to the so-called “content-

neutral” requirement for “time, place, or manner” restrictions.

Id., at 386.

“And just as the power to proscribe particular speech on the

basis of a noncontent element (e.g., noise) does not entail

the power to proscribe the same speech on the basis of a

content element; so also, the power to proscribe it on the

basis of one content element (e.g., obscenity) does not

entail the power to proscribe it on the basis of other content

elements.” /bid. (emphasis in original).

14

The test for “time, place, or manner restrictions” is, in turn,

substantially equivalent to the test for “expressive conduct”

regulation. See Clark v. Community for Creative Non-Vio-

lence, 468 U. S. 288, 293 (1984). The corresponding prong of

that test is that “the governmental interest is unrelated to the

suppression of free expression.” United States v. O'Brien, 391

U. S. 367, 377 (1968). Adapted to the present case, the test is

whether the governmental interest in prohibiting cross-burning

threats is related to the reason that threats in general are not

protected speech.

Assessment of governmental interests and the purposes of

legislation is a “hazardous matter.” /d., at 383. Laws have

multiple effects. If one effect of a law is permissible and

another is not, application of the test requires a court to identify

which is the “purpose.” This issue was confronted by the

plurality in Erie v. Pap’s A.M., 529 U. S. 277, 289-292 (2000),

a nude dancing case.’

In Erie, the state court had found two purposes—the

legitimate purpose “to combat the negative secondary effects”

of nude dancing and the illegitimate purpose of “suppressing

the erotic message of the dance.” /d., at 291-292. That second

purpose, the state court held, invalidated the statute. /d., at 292.

“A majority of the Court rejected that view in Barnes, and [the

plurality did] so again” in Erie. Jbid. “[T]}his Court will not

strike down an otherwise constitutional statute on the basis of

an alleged illicit motive.” /bid.; O'Brien, 391 U. S., at 383.

Given the burning cross’s history as the symbol of the Ku

Klux Klan, there are two obvious reasons for distinguishing a

cross burning from other forms of threats—the greater terror it

3. Justices Scalia and Thomas concurred in the result on the broader

grounds that regulation of nude dancing “ ‘is not subject to First

Amendment scrutiny at all.’ ” /d., at 307-308 (quoting Barnes v. Glen

Theatre, Inc., 501 U. S. 560, 572 (1991) (Scalia, J., concurring in the

judgment)). Hence, the plurality opinion is the holding of the court

under the rule of Marks v. United States, 430 U. S. 188, 193 (1977).

15

strikes into the hearts of its targets and its association with

racist ideology. See /n re Steven S., 25 Cal. App. 4th 598, 606-

607, 31 Cal. Rptr. 2d 644, 647 (1994). The first reason is

plainly legitimate. Congress can legitimately distinguish

threats to the President from other threats “since the reasons

why threats of violence are outside the First Amendment . . .

have special force when applied to the person of the President.”

R. A. V., 505 U. S., at 388 (citing Watts, 394 U. S., at 707).

Beyond aispute, “protecting individuals from the fear of

violence,” ibid., has “special force” when applied to a form of

threat used by a large, notorious terrorist organization.

The “alleged illicit motive” in this case, cf. Erie, 529 U. S..,

at 292, is to suppress “ ‘the controversial racial and religious

messages which [cross burnings] impart.’ ” Black, 262 Va., at

776, 553 S. E. 2d, at 745 (quoting State v. Sheldon, 332 Md. 45,

629 A. 2d 753, 757 (1993)). As an initial matter, the notion that

the Virginia General Assembly of 1952 sought to suppress the

segregationist ideology motivating the Klan’s activities borders

on absurd to one who lived there during the civil rights strug-

gles of the 1950s and 1960s. This was a jurisdiction that

maintained de jure segregated schools for a decade in defiance

of Brown v. Board of Education. 347 U. S. 483 (1954). It was

the Klan’s terrorist means, not its segregationist ends, that

triggered widespread revulsion and motivated the 1952 legisla-

ture to enact this statute almost unanimously. See App. to Pet.

for Cert. 100. “Where the government does not target conduct

on the basis of its expressive content, acts are not shielded from

regulation merely because they express a discriminatory idea or

philosophy.” R. A. V., 505 U. S., at 390.

The First Amendment does not require that an otherwise

valid limitation on speech avoid disparate impact on different

4. Counsel for amicus attended public schools in Fairfax County, Virginia,

from 1960 to 1971. The county maintained separate black and white

schools through the 1964-1965 school year, and finally integrated in

Fall 1965.

16

speakers. A restriction on the volume of music has a much

greater impact on hard rockers than on string quartets, but the

limitation is valid nonetheless. “A regulation that serves

purposes unrelated to the content of expression is deemed

neutral, even if it has an incidental effect on some speakers or

messages but not others.” Ward v. Rock Against Racism, 49\

U. S. 781, 791 (1989). The prohibition on draft card barning

obviously impacted the expressive conduct of those who

opposed the Vietnam War and not those who favored it, but the

prohibition was still valid. See O’Brien, 391 U. S., at 386;

Erie, 529 U. S., at 292. The fact that the present statute has a

greater impact on the expression of hate-spewing bigots than it

does on believers in racial equality does not render it invalid if

it otherwise qualifies as permissible regulation of a particularly

harmful form of threat.

In R. A. V., the purpose of discrimination on the basis of

message was apparent on the face of the ordinance, and no

amount of narrowing construction by the state court could save

it. By its terms, “the ordinance applies only to ‘fighting words’

that insult, or provoke violence, ‘on the basis of race, color,

creed, religion, or gender.’ ” 505 U. S., at 391. In Erie, the

state court found a dual purpose, and this Court held that the

legitimate purpose was sufficient. See 529 U. S., at 291-298.

In the present case, the Virginia Supreme Court focused only on

what it perceived as “hostility” toward an “underlying message”

- of “expressior of bigotry” in the burning cross, 262 Va., at 779,

553 S. E. 2d, at 746, ignoring the entirely legitimate reason for

the prohibition. This raises the question of whether any implicit

finding of legislative purpose in this discussion is binding on

this Court, as a state high court interpretation of a state statute.

Wisconsin v. Mitchell, 508 U. S. 476 (1993) comes closest

to the present case in this regard. The state high court’s

conclusion that the “hate crime” statute punished thought rather

than conduct was not a binding construction of the statute. See

id., at 483-484. The state court’s construction “in the sense of

defining the meaning of a particular statutory word or phrase,”

17

id., at 484, is binding, but “this Court is the final arbiter of

whether the Federal Constitution necessitated the invalidation

ofa state law.” New York v. Ferber, 458 U.S. 747, 767 (1982).

A state court should not be able to insulate its decision from

this Court’s review simply by ignoring an obvious, legitimate

purpose of a statute.

This statute prohibits conduct which the state has every

right to prohibit. To the extent that it distinguishes a type of

threat on the basis of content, it does so on the wholly legiti-

mate basis of the exceptionally threatening effect of that

content. The statute is valid as applied to the act of defendants

Elliott and O’Mara. The only remaining question in their case

is whether the statute is nonetheless invalid as “overbroad.”

III. Narrowing construction and severability

must be considered before determining if any

overbreadth is substantial.

Defendant Black burned a cross at a Ku Klux Klan rally

held on private property with the permission of the owner. The

requisite intimidation was found from the reaction of a neigh-

bor, who feared arson of her house and harm to her children.

See Black v. Commonwealth, 262 Va. 764, 782, 553 S. E. 2d

738, 748-749 (2001) (Hassell, J., dissenting).

Unlike Elliott and O’ Mara, Black has a plausible argument

that his conduct falls in the zone of protected expression rather

than unprotected threats. The California Court of Appeal

distinguished the two types of cross burnings in /n re Steven S.,

25 Cal. App. 4th 598, 606-607, 31 Cal. Rptr. 2d 644, 647

(1994) (emphasis in original, footnote omitted):

“Cross burning conveys a message—the Ku Klux Klan’s

creed of racial hatred. As such, it implicates the First

Amendment’s guarantee of freedom of speech. [Citations. ]

“But an unauthorized cross burning on another person's

property, which we shall call ‘malicious’ cross burning for

18

shorthand purposes, as distinguished from a ritual cross

burning at a Klan gathering, does moze than convey a

message. It inflicts immediate injury by subjecting the

victim to fear and intimidation, and it conveys a threat of

future physical harm.”

Amicus understands that the Commonwealth will argue that

under the circumstances of this case, Black’s cross burning

comes within the definition of proscribable conduct. We will

not repeat that argument here. Instead, we will address the

question of whether, if Steven S. has drawn the constitutional

line correctly, the Virginia statute must be stricken in its

entirety as “overbroad.”

A. Narrowing Construction.

The first and simplest way to deal with an overbreadth

challenge to a statute is to construe the statute not to apply

outside the constitutional boundaries. The dissent in the present

case interpreted the statute to apply only to “real threats.” See

262 Va., at 793, 553 S. E. 2d, at 754. So construed, there is no

overbreadth question. Black’s case would reduce to routine

questions of correctness of jury instructions and sufficiency of

the evidence. The case might also qualify for the more exacting

review of facts on appeal sometimes afforded “in those cases in

which it is contended that the communication in issue is within

one of the few classes of ‘unprotected’ speech.” Bose Corp. v.

Consumers Union of United States, Inc., 466 U. S. 485, 503

(1984); see United States v. Hanna, 293 F. 3d 1080, part III

(CA9, June 20, 2002).

In the present case, the Virginia Supreme Court did not

discuss in any detail the correspondence between the bound-

aries of the statute and the constitutional “threat” limit because

of its mistaken view that the statute transgressed the rule of

R. A. V. See part Il, supra. This omission puts this Court in

the awkward position of considering an overbreadth challenge

without a definitive statutory interpretation from the state court.

19

Cf. Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 509

(1985) (O’Connor, J., concurring).

If the R. A. V. question is resolved as suggested in part II,

supra, there are several alternative ways for this Court to deal

with the statutory interpretation question. The Court could

remand for that determination, certify a question to the Virginia

Supreme Court, or assume for the sake of argument that the

statute does reach some protected expression and proceed to the

question of partial versus full invalidation on that assumption.

The latter course was taken in Brockett, 472 U. S., at 504.

B. Severability.

Assuming that the statute reaches cross burnings which are

not targeted at anyone in particular, and further assuming that

such applications of the statute cross the constitutional line,

under the principles set forth in Brockett, “[flacial invalidation

of the statute [is] nonetheless improvident.” /d., at 501. Partial

invalidation is not limited to excising particular words or

phrases from statutory language. An overbroad statute may

also be cured by identifying valid and invalid applications of its

language, so long as that can be done in a way that cures the

uncertainty of applications and resulting chilling effect on

protected expression. In United States v. Grace, 461 U.S. 171,

175 (1983), a statute regulating speech on the Supreme Court

“grounds” was invalidated only as applied to the perimeter

sidewalks. See Brockett, supra, at 503. Brockett itself held that

an obscenity statute could be valid as applied to some kinds of

“lust” and invalid as to others. If “inwmidating” under the

Virginia statute really does extend further than constitutionally

proscribable “threats,” the statute is invalid to that extent, but

only to that extent, and a simple holding to that effect by this

Court or the Virginia Supreme Court is sufficient to cure any

overbreadth. Following such a holding, there is no longer a

“danger . . . of sweeping and improper application,” NAACP v.

Button, 371 U. S. 415, 433 (1963), and the justification for

applying the drastic overbreadth rule vanishes.

20

The Virginia Supreme Court focused its overbreadth

analysis on the novel theory that threat of prosecution rather

than actual application of the statute was a danger sufficient to

warrant invalidation of the entire statute. See Black, 262 Va.,

at 777-778, 553 S. E. 2d, at 746; Pet. for Cert. 28-29. This

holding is based on the final sentence of the statute: “Any such

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

intimidate a person or group of persons.” Again, we leave to

the Commonwealth the argument that this provision is constitu-

tional. Assuming for the sake of argument that it does present

a First Amendment problem, it was error as a matter of federal

constitutional law to use this sentence to invalidate the entire

statute without considering severability.

Severability is a matter of legislative intent. Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191

(1999). Ifthe Virginia Supreme Court had actually considered

severability and decided tha: the last sentence was not sever-

able, that interpretation would be binding on this Court. The

state court did not consider the question, though, and this

appears to be a crystal clear case of severability. We need not

speculate whether the legislature would have enacted the statute

without the last sentence. Cf. Brockett, 472 U. S., at 506. We

know it actually did. The language in question was added as

the last amendment to the statute, in 1975. Black, 262 Va., at

776, 553 S. E. 2d, at 745.

New York v. Ferber, 458 U.S. 747, 769, n. 24 (1982) noted

in dictum that federal courts must consider severability and that

State courts are “free” to do so. Ferber did not consider

whether state courts must consider severability, as the issue was

not presented. Ferber held that the “substantial overbreadth”

principles of Broadrick v. Oklahoma, 413 U. S. 601 (1973),

apply to cases in the state courts as well as the federal courts.

“While the construction that a state court gives a state

statute is not a matter subject to our review, [citations], this

Court is the final arbiter of whether the Federal Constitution

necessitated the invalidation of a state law. It is only

21

through this process of review that we may correct errone-

ous applications of the Constitution that err on the side of

an overly broad reading of our doctrines and precedents, as

well as state-court decisions giving the Constitution too

little shrift. A state court is not free to avoid a proper facial

attack on federal constitutional grounds. [Citation.] By the

same token, it should not be compelled to entertain an

overbreadth attack when not required to do so by the

Constitution.” Ferber, 458 U. S., at 767.

This rationale applies as much to the partial invalidation

principle of Brockett as it does to the substantiality requirement

of Broadrick, with one caveat. The principle requires the state

court to consider severability, and its failure to do so is federal

law error, reversible by this Court. A holding that the offending

portion of a statute actually is not severable would be a holding

of state law, not reviewable here.

CONCLUSION

To the extent it holds Virginia Code § 18.2-423 unconstitu-

tional as content discrimination under the rule of R. A. V. v. St.

Paul, the decision of the Supreme Court of Virginia should be

reversed. The case should be remanded to determine whether

the statute applies to any cross burnings which are not constitu-

tionally proscribable threats, and if so, whether such applica-

tions are severable.

August, 2002

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation