Amicus Curiae Brief — Virginia v. Black

No. 01-1107 ~

In the

Supreme Court of the United States

Commonwealth of Virginia,

Petitioner,

Vv.

Barry Elton Black, Richard J. Elliott,

and Jonathan O' Mara,

Respondents.

On Writ of Certiorari to the

Supreme Court of Virginia

Brief of the States of New Jersey, Arizona, Connecticut,

Iowa, Maryland, Massachusetts, Michigan, Nebraska,

Nevada, North Carolina, Oklahoma, Oregon, Utah, and

Vermont as Amici Curiae in Support of Petitioner

DAVID SAMSON

Attorney General of New Jersey

R.J. Hughes Justice Complex

PO Box 106

Trenton, New Jersey 08625-0106

(609) 292-1537

Douglas K. Wolfson Carol Johnston*

Assistant Attorney General Deputy Attorney General

Of Counsel On the Brief

*Counsel of Record

[Additional Counsel on Inside Cover]

JANET NAPOLITANO

Attorney General of Arizona

1275 West Washington

Phoenix, AZ 85007-2926

RICHARD BLUMENTHAL

Attorney General of

Connecticut

55 Elm Street

Hartford, CT 06141

THOMAS J. MILLER

Attorney General of Iowa

Hoover State Office Building

Des Moines, IA 50319

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

200 Saint Paul Place

Baltimore, MD 21202

THOMAS F. REILLY

Attorney General of

Massachusetts

One Ashburton Place

Boston, MA 02108

JENNIFER M. GRANHOLM

Attorney General of Michigan

P.O. Box 30212

Lansing, MI 48909

DON STENBERG

Attorney General of Nebraska

Department of Justice

2115 State Capitol

Lincoln, NE 68509

FRANKIE SUE DEL PAPA

Attorney General of Nevada

100 North Carson Street

Carson City, NV 89701-4717

Roy COOPER

Attorney General of

North Carolina

P.O. Box 629

Raleigh, NC 27602

W.A. DREW EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Bivd., Ste. 112

Okalahoma City, OK

73105-4894

HARDY MYERS ;

Attorney General of Oregon

1162 Court St. NE

Salem, OR 97310

MARK L. SHURTLEFF

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

WILLIAM H. SORRELL

Attorney General of Vermont

109 State Street

Montpelier, VT 05609-1001

TABLE OF CONTENTS

Page

Statement OF Amici Interest — .........cccccccccccccsccccsceees oi

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DTD Sijtiddddiseneidsaseesnsteeassonenssennsoonencesoescces 2

Traditional Strict Scrutiny Review, With Evaluation

of the State Justification, the Harm the Restriction

Causes, and the Nature, Type, and Context of the

Speech, Impels a Finding of Constitutionality ........

EES SE a ee

TABLE OF AUTHORITIES

Cases Cited:

Ashcroft v. The Free Speech Coalition,

— oe |e lll ee

Black v. Virginia,

Be Ee CUCU, SUED ccc ccc ccc ccc cccsecs

Broadrick v. Oklahoma,

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Burson v. Freeman,

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Capitol Square Review and Advisory Bd. v. Pinette,

EE eee

ii

Page

Chaplinsky v. New Hampshire,

fe |, aaerrrrrrrrrr te 3,7

City of Cincinnati v. Discovery Network, Inc.,

ft & err ee ee ee 6

City of Los Angeles v. Alameda Books, Inc. ,

__ U.S. _, 122 S.Ct. 1728 (2002) ..........--. 7

Good News Club v. Milford Central School,

SPU SGD gc cocececedsceesececouse 9

Lorillard Tobacco Co. v. Reilly,

| fe f rrrrrrrrr TTT 7

New York v. Ferber,

| th § eres ee 5, 7, 8, 10

Osborne v. Ohio,

495 U.S. 103, reh. den. 496 U.S. 913 (1990) ...... 5

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

lS fl ree TT passim

Reno v. American Civil Liberties Union,

Sn UL URED coccccecneeessecesacse 6

v. Washington,

Se PEED «og pose éecoseceseneescees 7

State v. Vawter,

— FR bf | FR | ere TTT Tree 10

Texas v. Johnson,

Gl Ge, ED ncccecenceeeecescoesesss s

ili

Thompson v. Western States Medical Center,

ee, We 5 Nee OER, BET GRRE nw ccc ccc cece 6

United States v. Playboy Entertainment Group, Inc..,

ee ee cles cd nccuoe es 4,5, 6

Virginia v. Black,

__ U.S. __, 122 S.Ct. 2288 (Mem.) (2002) ...... 2

Watts v. United States,

I a he 5,7

Young v. American Mini Theaters,

427 U.S. 50, reh. den. 429 U.S. 873 (1976) ....... 7

Statute Cited:

I ls he a 1,2, 12

Other Authorities Cited:

A. Lewis, Make No Law: The Sullivan Case

and the First Amendment (1991) ............... 9

Matsuda, Public Response to Racist Speech:

Considering the Victim's Story,

87 Mich.L.Rev. 2320 (1989) ............... 8,9

STATEMENT OF AMICI INTEREST

Many State legislatures have been powerless to craft

statutes that address the most virulent form of bias-motivated

threats or incitements to violence after this Court rendered its

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

Cross-burning is known by the actors, the victims, and the

State governments to cause unique and significant harm. The

States thus have a strong interest in this Court's consideration

of the appropriate analysis under the First and Fourteenth

Amendments of statutes that prohibit cross-burning with intent

to intimidate. The constitutional analysis must be flexible

enough to permit State legislatures to address pressing

problems that have presented themselves without sweeping

within the prohibition other problems of lesser importance.

SUMMARY OF ARGUMENT

The Virginia cross-burning statute, Code § 18.2-423,

should be analyzed under traditional strict scrutiny principles,

which would allow Virginia to justify its interest in restricting

expressive activity and permit the Court to evaluate all the

factors informing the State's decision, the nature of the

expressive activity, and its unique harm for victims. Insofar

as the Court's decision in R.A.V. v. City of St. Paul curtails

a fully-informed review and forces States seeking to curb such

harmful conduct to restrict more speech than may be

necessary, the case should be revisited and its analysis

rejected in favor of traditional strict scrutiny.

2

ARGUMENT

TRADITIONAL STRICT SCRUTINY REVIEW, WITH

EVALUATION OF THE STATE JUSTIFICATION, THE

HARM THE RESTRICTION CAUSES, AND THE

NATURE, TYPE, AND CONTEXT OF THE SPEECH,

IMPELS A FINDING OF CONSTITUTIONALITY.

In Black v. Commonwealth, 553 S.E.2d 738 (Va. 2001),

the Virginia Supreme Court, relying on this Court's decision

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

invalidated a Virginia statute prohibiting cross-burning as

violative of the First Amendment. The Virginia Court found

that while expressive activity that intimidates others may be

restricted, its Legislature may not, consistent with the First

Amendment as interpreted in R.A.V., single out one

intimidating message, such as cross-burning, for censure.

553 S.E.2d at 743-744.

There were three cases before the Virginia Supreme

Court. In two companion cases, Richard J. Elliott and

Jonathan O'Mara attempted to burn a cross in an African-

American neighbor's yard. 553 S.E.2d at 740. In the third

case, Barry Elton Black led a Ku Klux Kian rally at which a

cross was burned. /d. at 741. All three individuals were

prosecuted under Virginia Code § 18.2-423, which 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.

3

Any such burning of a cross shall be prima facie

evidence of an intent to intimidate a person or group

of persons.

[Va. Code § 18.2-423.]

The defendants were each convicted by a jury, but the

convictions were overturned by the Virginia Supreme Court.

The Commonwealth of Virginia petitioned for certiorari,

which was granted. Virginia v. Black, U.S. _, 122 S.Ct.

2288 (Mem.) (2002).

The Virginia Court held that the analysis in this case

mirrors that in R.A.V. v. City of St. Paul, supra, 505 U.S.

377. R.A.V. involved a Minnesota ordinance that prohibited

placing a symbol like a burning cross or Nazi swastika on

public or private property when the actor knows that it will

arouse anger, alarm, or resentment on the basis of race, color,

creed, religion, or gender. /d. at 380. The Minnesota

Supreme Court, in its review, limited the statute to apply only

a that could be considered "fighting words." /d. at

The R.A. V. Court found this ordinance unconstitutional

because it "prohibits otherwise permitted speech solely on the

basis of the subjects the speech addresses." /d. at 381.

Restriction of this speech is generally permitted; fighting

words, like defamation and obscenity, 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 sovial interest

in order and morality." Jd. at 383 (quoting Chaplinsky v.

New Hampshire, 315 U.S. 568, 572 (1942)). But a legislature

may not engage in "content discrimination” by selecting one

low-value message to censure: "The government may not

regulate use [of fighting words] based on hostility -- or

—— ~— towards the underlying message expressed." Jd

at .

4

The Court found the Minnesota ordinance to be content-

discriminatory, in that intimidating expressive conduct is

prohibited only when it is addressed to race, color, creed,

religion, or gender. /d. at 391. The Court noted that the

statute expressed hostility to these messages but not to similar

intimidating messages on the basis of, for example, political

affiliation, union membership, or sexual orientation. Jd. at

391.

The Court further found the ordinance to discriminate on

the basis of viewpoint, because it bars fighting words

communicating racial hatred while permitting fighting words

communicating racial tolerance. Jd. at 391-92. Hence, the

Court held that the statute unlawfully favors one side in a

dispute.

The Court did, however, find that the ordinance furthered

a compelling interest: "the ordinance helps to ensure the basic

human rights of members of groups that have historically been

subjected to discrimination . . . " Id. at 395. But the Court

found that the ordinance is not mecessary tO serve this

compelling interest because a broader ordinance, not limited

just to racist speech but to all fighting words and threats,

"would have precisely the same beneficial effect." Id. at 395-

96.

Strict scrutiny of a content-based regulation of speech

requires that the restriction be necessary to serve a compelling

state interest, and also be narrowly-tailored to achieve that

end. United States v. Playboy Entertainment Group, Inc.,

529 U.S. 803, 813 (2000). The Court demands that

government employ the least-restrictive alternative to serve

the governmental purpose because "[t]o do otherwise would

be to restrict speech without an adequate justification... ."

Id. at 813.

By finding that the ordinance is not necessary to ensure

basic human rights of members of historically-persecuted

5

groups because a broader ordinance would suffice, the R.A. V.

Court altered the traditional strict scrutiny review of content-

based statutes. "Tailoring" a statute narrowly to achieve its

ends ordinarily requires selectivity, so that no more speech is

prohibited than that which the government can adequately

justify. A broader ordinance, in this context, limits more

speech than necessary to achieve the City's goal and would,

therefore, be unconstitutional. A ruling that only broader

ordinances can be "necessary" dooms all selective restrictions.

The Court has upheld selective prohibitions within a

category of speech. In New York v. Ferber, 458 U.S. 747

(1982), and Osborne v. Ohio, 495 U.S. 103, reh. den. 496

U.S. 913 (1990), the Court upheld statutes that restricted only

child pornography, a subcategory of sexually-explicit speech.

The Court permitted this selection because of the State's

interest in protecting children who are the subject of the

speech. Osborne, supra, 495 U.S. at 110. A broader statute

that did not single out child pornography would have had the

same beneficial effect of protecting children. Child

pornography is particularly harmful because it records a crime

of sexual abuse, but it also could be addressed in broader,

neutral, statutes prohibiting sexual abuse. See also Waits v.

United States, 394 U.S. 705 (1969) (upholding statute that

restricted threats against the President, a subset of threats

against political officials).

If one type of speech causes greatest harm, the State

should be permitted to craft a statute that addresses only that

speech. As this Court has stated, "States adopt laws to

address the problems that confront them. The First

Amendment does not require States to regulate for problems

that do not exist." Burson v. Freemun, 504 U.S. 191, 207

(1992). Just as child pornography can be selectively

prohibited because of the unique harm it causes children, so,

too, cross-burning may be selectively prohibited because of

the unique harm it causes victims from certain groups.

6

Traditional strict scrutiny analysis permits a meaningful

evaluation of the reasons government seeks to restrict speech.

Of course, "[iJt is rare that a regulation restricting speech

because of its content will ever be permissible." Playboy

Entertainment Group, supra, 529 U.S. at 818. But the

government should be permitted to demonstrate that its effort

to single out a narrower type of speech is justified. And those

efforts should not be thwarted by a doctrine that the regulation

is not "necessary" simply because it attempts to pinpoint one

activity that causes greatest harm.

Statutes restricting speech must be carefully-crafted so

that they do not restrict more speech than necessary to achieve

their ends. This Court has frequently noted, for example, that

the governmental interest in protecting children from

pornography does not support a broad suppression of speech

addressed to adults. Playboy Entertainment Group, supra,

529 U.S. at 814; Reno v. American Civil Liberties Union, 521

U.S. 844, 875 (1997). Similarly, the governmental interest

in protecting the human rights of groups that have historically

been subject to discrimination, abuse, and persecution may

not support a broad suppression of speech directed to other

groups.

Of course, a law infringing on speech or expressive

activity is properly invalidated when the justification offered

by government to support it is insufficient. Close examination

of the justification will reveal whether the government interest

is truly compelling and narrowly-tailored. Hence, in

Thompson v. Western States Medical Center, U.S. __, 122

S.Ct. 1497 (2002), the Court found that the restrictions on

advertisement and promotion of compounded drugs were

more extensive than necessary to achieve the government's

interests. Jd. at _, 122 S.Ct. at 1505-06. The Court

concluded: "The Government simply has not provided

sufficient justification here." Jd. at __, 122 S.Ct. at 1507.

Similarly, in City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410, 418-19 (1993), the Court found that a

7

prohibition on newsracks offering "commercial" publications

but not newspapers did not adequately serve the City's

asserted interest in safety and esthetics. The Court thus ruled

that the restriction was not "necessary" to achieve the City's

goal.

The government's justification for restricting speech is

one part of a multi-factor balance. Balancing is implicit in the

traditional strict scrutiny analysis. See City of Los Angeles v.

Alameda Books, Inc., _U.S. __, __, 122 S.Ct. 1728, 1737

(2002) (the Court must balance competing interests); Ferber,

supra, 458 U.S. at 764 ("the balance of competing interests

is clearly struck"); Spence v. Washington, 418 U.S. 405, 417

(1974) ("even protected speech may be subject to reasonable

limitation when important countervailing imterests are

involved") (Rehnquist, J., dissenting). Another factor is the

nature of the speech. |

Not all speech is entitled to the same level of protection.

"Fighting words" and threats are accorded protection

commensurate with their position in the First Amendment

spectrum. Chaplinsky v. New Hampshire, supra, 315 U.S. at

572: Watts v. United States, supra, 394 U.S. 705 ("true

threats” are unprotected). Society's interest in protecting non-

obscene, sexually-explicit materials (portraying adults) is "of

a wholly different, and lesser, magnitude than the interest in

untrammeled political debate," and so this speech has lesser

value. Young v. American Mini Theaters, 427 U.S. 50, 70,

reh. den. 429 U.S. 873 (1976). Commercial speech has "a

measure of First Amendment protection ‘commensurate’ with

its position in relation to other constitutionally guaranteed

expression." Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,

553 (2001).

The value of the speech affects the required weight of the

justification for restricting it. The State may not regulate, on

the basis of content, any speech, even speech of lesser value,

without demonstrating a compelling interest in doing so. But

8

the governmental interest is most compelling when the State

seeks to protect children from significant harm. Ferber,

supra, 458 U.S. at 756-57. It is least compelling when the

State merely seeks to protect citizens from discomfort.

Ashcroft v. The Free Speech Coalition, __ U.S. _, 122S.Ct.

1389, 1399 (2002).

Another factor in the balance is the type of speech at

issue. As this Court acknowledged in The Free Speech

Coalition, supra, _ U.S. at ___, 122 S.Ct. at 1403, "First

Amendment cases draw vital distinctions between words and

deeds, between ideas and conduct. " "The government

generally has a freer hand in restricting expressive conduct

than it has in restricting the written or spoken word." Texas

y. Johnson, 491 U.S. 397, 406 (1989). The speech at issue

here, cross-burning, is not speech but communicative conduct

or expressive activity. It isa deed, not words; conduct, not

ideas.

The context of the expressive activity should be

considered. Cross-burning is not an invitation to discuss or

debate ideas but, rather, it is extremely confroniational and

potentially violent conduct. A burning cross is a symbol that,

in the context of American history, carries a clear message of

racial supremacy and hatred towards certain other groups.

See Capitol Square Review and Advisory Bd. v. Pinette, 515

U.S. 753, 770-71 (1995) (Thomas, J., concurring); M.

Matsuda, Public Response to Racist Speech: Considering the

Victim's Story, 87 Mich.L.Rev. 2320, 2365 (1989).

The harm intimidating expressive activity causes is an

important factor to consider. Cross-burning inflicts unique

and significant harm on members of certain groups that have

historically been subject to discrimination. The deep

physiological and emotional distress caused by such activity

is well-documented. See Matsuda, Public Response to Racist

Speech, supra, 87 Mich.L.Rev. at 2336-38.

9

Indeed, the unique harm caused by the activity insulates

the restriction from viewpoint discrimination charges, since

only the one viewpoint causes such harm. In contrast, the

unlawful viewpoint discrimination of, for example, a school

that permitted community groups to use the school after hours

to teach morals and character development, but prohibited a

religious group to teach that subject from the religious or

Christian perspective, does not raise the same specter of

harm. See Good News Club v. Milford Central School, 533

U.S. 98, 109-110 (2001). There was no showing that the

tea~hings from either a secular or nonsecular angle presented

any unique danger of harm. However, conduct that

communicates racial hatred directed toward a member of a

group that has historically been subject to prejudice and

discrimination presents a significant danger of harm, while

conduct communicating tolerance does not.

Scholars have argued that the failure of government to

address racist propaganda "elevates liberty interests of racists

over liberty interests of targets." See Matsuda, Public

Response to Racist Speech, supra, 87 Mich.L.Rev. at 2378;

2375-81. Virginia seeks to condemn confrontational conduct

expressing racial hatred by burning a cross in another's yard.

Cross-burning cannot be considered outside of its historical

context, a context of violence and, more important, implicit

official sanction. Racial discrimination was, for too long,

enforced by law. See A. Lewis, Make No Law: The Sullivan

Case and the First Amendment 15-16 (1991). Efforts to

alleviate the lingering effects should be viewed in a special

light.

When it is clear to a legislature that bias-motivated threats

that tend to intimidate and incite violence are predominantly

addressed to certain groups, the legislature should be

permitted to address the problem that confronts it.

Recognizing that a special harm is caused by one viewpoint

but not another, the legislature should be permitted to

narrowly tailor its statute to restrict only speech that causes

10

that harm. Those legislative judgments should be accorded

respect; cross-burning statutes may be "sustainable by

deferring to the legislative judgment concerning which of

several causes of a problem government elects to regulate."

State v. Vawter, 642 A.2d 349, 367 (N.J. 1994) (Stein, J.,

concurring).

It is appropriate to apply traditional strict scrutiny here.

Rather than strike down the statute because a broader statute

would suffice, the Court should assess the nature and type of

the regulated speech -- intimidation rather than political

speech, expressive conduct rather than written or spoken

words. It should evaluate the context of the speech,

confrontational and potentially violent rather than a debate or

discussion. Most importantly, it should consider the unique

and significant harm the speech causes.

Accordingly, while Virginia's cross-burning statute is

content-based, it may survive strict scrutiny review if Virginia

is permitted to justify its statute and all relevant factors are

duly considered. This Court quickly accepted the contention

that the ordinance in R.A.V. served a compelling interest of

helping to "ensure the basic human rights of members of

groups that have historically been subjected to

discrimination." Jd. at 395. Virginia may be able to

demonstrate that its statute furthers this compelling interest in

a manner fully in accord with First Amendment principles.

In sum, the First Amendment requires due consideration

of the factors relating to the right to speech or expressive

conduct and the reason government seeks to restrict such

expression. Some speech is central to the core purposes of

the First Amendment, such as political debate, while other

speech contributes very little to the exposition of ideas, like

fighting words, sexually-explicit language, or threats.

Expressive activity tends not to be an invitation to discussion

and so should be recognized as less important, especially in a

confrontational context. Some speech causes unique and

11

devastating harm, while other speech simply causes

discomfort; the level or degree of harm should be considered

when evaluating the justification for a restriction on

expressive conduct. When all these factors are considered

and balanced in the traditional strict scrutiny review, and

Virginia's justification for the restriction is adequately

demonstrated, the Court will find that this statute accords with

the First Amendment.

12

CONCLUSION

For the foregoing reasons, the decision of the Virginia

Supreme Court should be reversed and Virginia Code § 18.2-

423 should be upheld as fully in accord with First Amendment

principles.

Respectfully submitted,

DAVID SAMSON

Attorney General of New Jersey

Douglas K. Wolfson

Assistant Attorney General

Carol Johnston*

Deputy Attorney General

*Counsel of Record

R.J. Hughes Justice Complex

PO Box 106

Trenton, New Jersey 08625-0106

(609) 292-1537

Dated: August 9, 2002