Amicus Curiae Brief — Virginia v. Black

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No. 01-1107 | ae 4

CE OF TH CLES

IN THE Ss

Supreme Court of the United States

COMMONWEALTH OF VIRGINIA,

Petitioner,

VS.

BARRY ELTON BLACK, et ai.,

Respondents.

On Wait oF CERTIORARI TO THE

SuPpREME Court OF VIRGINIA

-—

———-

Brier Amici Curiae OF ANTI-DEFAMATION LEAGUE, PEOPLE For

THe AMERICAN Way FounbaTtion, HUMAN RIGHTS CAMPAIGN,

NATIONAL ASIAN Pacific AMERICAN LEGAL Consortium, NATIONAL

CONFERENCE For COMMUNITY AND JUSTICE, ASIAN AMERICAN

LeGAL DEFENSE AND EDUCATION Funb, HAaDAssAH, THE WOMEN’S

ZiONIST ORGANIZATION OF AMERICA, INC., AMERICAN JEWISH

Committers, Jewish Councit For Pusiic AFFAIRS, COMMISSION

Or SociaL ACTION OF REFORM JUDAISM, AMERICAN-ARAB ANTI-

DISCRIMINATION COMMITTEE, NATIONAL GAY AND LesBIAN TASK

Force, NATIONAL COUNCIL OF JEWISH WOMEN, INC., AND

Lawyers’ CoMMITTEE For Civit RiGuts Unper Law Or Tue

Boston Bar AsSOCIATION, IN SuppoRT Or NEITHER PARTY

— —

——

Howarpb W. GOLDSTEIN MartIN E. KARLINSKY

FRIED FRANK HARRIS SHRIVER Counsel of Record

& JACOBSON KATTEN MucHIN ZAVIS ROSENMAN

One New York Plaza 575 Madison Avenue

New York, NY 10004 New York, NY 10022

(212) 859-8000 (212) 940-8800

Attorneys for Amici Curiae

(Additicnal Counsel for Amici Curiae Listed on Inside Cover)

f i

ALS |

Rosina K. ABRAMSON

STEVEN M. FREEMAN

Assey P. GANS

ANTI-DEFAMATION LEAGUE

823 United Nations Plaza

New York, NY 10017

(212) 490-2525

FREDERICK M. LAWRENCE

Boston UNiversiTy SCHOOL oF LAW

765 Commonwealth Avenue

Boston, MA 02215

(617) 353-3103

E.uiot M. MINCBERG

PEOPLE FOR THE AMERICAN WAY

FOUNDATION

2000 M Street, N.W.

Washington, D.C. 20036

(202) 467-4999

Table of Authorities

TABLE OF CONTENTS

Anti-Defamation League .....................0..000.

People for the American Way

RST a A oh

Human Rights Campaign .......................0..

National Asian Pacific American

SESS TE AEN ee a

The National Conference for

Community and Justice .................0.......

Asian American Legal Defense and

Hadassah, the Women’s Zionist

Organization of America, Inc...................

American Jewish Committee......................

Commission of Social Action

I I ical cinieriethaiibtinsalsbbiiidieasiouunbsecniotien 2

American-Arab Anti-Discrimination

Cente. .....cocccoccseseceececesscesescneeunnnnananenann 8

National Gay and Lesbian Task Force.................+5 9

National Council of Jewish

WeoanGt, BRC. .ccccecccccccveccccssosocesccssnenennnneneeenl 10

Lawyers’ Committee for Civil Rights

Under Law of the Boston Bar

AGBOCERRIDE . o00ccccececscceseosccsesoceseenseneeeee 10

BT ATTTEGIIIG EL ccccccccccccccsccccccoccecccocssenneunenenenaaneenan 12

SUMMARY OF ABRUIREIIICE ccccccccccococcoccsssesneesnanen 13

ARGUMENT — ASSAULTIVE AND UNPROTECTED

SPEECH MAY BE CONSTITUTIONALLY

PROHIBITED AND PUNISHED UNDER

STATUTES SUCH AS THE VIRGINIA STATUTE ........ 15

A. THE STATUTE PUNISHES

ASSAULTIVE SPEECH DESIGNED TO

INDUCE FEAR IN OTHERS, NOT ANY

PARTICULAR VIEWPOINT OR MESSAGE............ 15

B. THE VIRGINIA STATUTE IS NOT

INVALID IN PROSCRIBING A

PARTICULAR FORM OF

ABSAULTIVE, BP TIG oc cccccccccescccesoveccsessossssosesesse 17

iii

C. CROSS BURNING WITH THE

INTENT TO INTIMIDATE A

TARGETED INDIVIDUAL IS

EXPRESSIVE CONDUCT OUTSIDE

THE SCOPE OF FIRST AMENDMENT

EES ED 21

D. THE COURT'S HOLDING IN R.A. V.

DOES NOT CONTROL THIS CASE

iT lei deraceccascccesceescnceeoersosccococeceses 28

TABLE OF AUTHORITIES

FEDERAL CASES

Ashcroft v. A.C.L.U., 122 S. Ct.

ATO (BOOAD ..cccccccccccccccccccccscccccescscscsescsecsossoocees 3

California Motor Transport Co. v.

Trucking Unlimited,

404 U.B. SOB (1972) ..cccccccccccccccccccccccsccccccccccsees 20

Capitol Square Review & Advisory

Board v. Pinette,

SIS U.B. TSB (IDDE) ...cccccccccocccccccccccscccscesscoseses 19

Chaplinsky v. New Hampshire,

BIS UB. SEB (IDSA) .nccccccccccecccccscoccccsccccccssseses 21

Cohen v. California,

GBB UD. BB AIGTED .ccccccccccccccccccscsesccccssecossscceess 21

Lewis v. New Orleans,

GIS UB. 190 (IGT) ..cccccccccccocecccccccccsccvccccscosess 21

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

S05 U.S. 377 (1992) .......ccccecececeeceereeeeeeeeees passim

Roberts v. United States Jaycees,

46GB U.S. GOD (19B4) ...ccccccccccccccccccccccccccccccsocsess 22

Texas v. Johnson,

GBI UD. BOT (IGG) nccccccccccccccecccccccccccsccseee 18, 25

a ee

United States v. Eichman,

I es I aati iach nea 3

United States v. Lee,

935 F.2d 952 (8th Cir. 1991) .......................000. 20

United States v. Skillman,

922 F.2d 1370 (9th Cir. 1991) .......... eee. 19

Wisconsin v. Mitchell,

In ia 3

STATE CASES

Black v. Commonwealth,

Se ey ee I saticinericineriendeinteiinsiianiecnaiines passim

STATE CODES

ae passim

BOOKS AND TREATISES

Frederick M. Lawrence, PUNISHING

HATE: BIAS CRIMES UNDER AMERICAN

gg nnn 22

No. 01-1107

IN THE

SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF VIRGINIA,

Petitioner,

vs.

BARRY ELTON BLACK, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

BRIEF AMICI CURIAE OF ANTI-DEFAMATION

LEAGUE, PEOPLE FOR THE AMERICAN WAY

FOUNDATION, HUMAN RIGHTS CAMPAIGN,

NATIONAL ASIAN PACIFIC AMERICAN LEGAL

CONSORTIUM, NATIONAL CONFERENCE FOR

COMMUNITY AND JUSTICE, ASIAN AMERICAN

LEGAL DEFENSE AND EDUCATION FUND,

HADASSAH, THE WOMEN’S ZIONIST

ORGANIZATION OF AMERICA, INC., AMERICAN

JEWISH COMMITTEE, JEWISH COUNCIL FOR

PUBLIC AFFAIRS, COMMISSION OF SOCIAL

ACTION OF REFORM JUDAISM, AMERICAN-ARAB

ANTI-DISCRIMINATION COMMITTEE, NATIONAL

GAY AND LESBIAN TASK FORCE, NATIONAL

COUNCIL OF JEWISH WOMEN, INC., AND

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER

LAW OF THE BOSTON BAR ASSOCIATION IN

SUPPORT OF NEITHER PARTY

INTEREST OF AMICI

Amici curiae listed in the caption hereof submit

this brief in support of neither petitioner nor

respondents. !

Anti-Defamation League

Organized in 1913 to advance good will and

mutual understanding among Americans of all creeds

and races and to combat racial, ethnic, and religious

prejudice in the United States, the Anti-Defamation

League (“ADL”) is today one of the world’s leading

organizations fighting hatred, bigotry, discrimination,

and anti-Semitism. The impetus for ADL’s founding

was a hate crime—the lynching of a Jewish man, Leo

Frank, in Atlanta, after his unjust conviction for

murder and the commutation of his death sentence to

life imprisonment—and ADL’s core commitment is to

the eradication of hate. Yet, as a civil rights advocacy

organization, ADL is equally committed to the

preservation of our democratic freedoms and to the

constitutional rights that gird those freedoms. ADL is

particularly sensitive to First Amendment rights of

speech, belief, and conscience, believing that such

1 Pursuant to Rule 37.3(a) of the Rules of this Court, amici

have obtained and lodge herewith the written consents of

the parties to the submission of this brief. Pursuant to Rule

37.6, amici affirm that no counsel for a party authored this

brief in whole or in part, and that no person, other than

amici and their counsel, made a monetary contribution to

its preparation or submission.

freedoms are essential to our other freedoms as

Americans, and that they serve as foundation stones

of the fight against hate and bigotry. The competing

interests at stake here are thus of keen interest to ADL

and central to its mission.?

People for the American Way Foundation

People For the American Way Foundation

(“People For”) is a non partisan, education-oriented

citizens’ organization established to promote and

protect civil and constitutional rights, including First

Amendment freedoms. Founded in 1980 by religious,

civic, and educational leaders devoted to our nation’s

heritage of tolerance, pluralism, and liberty, the

organization now has over 500,000 members and

supporters nationwide. People For has a _ broad

concern for protecting First Amendment rights, and

has submitted amicus briefs to this Court in support

of free expression in a number of recent cases, such as

Ashcroft v. A.C.L.U., 122 §S. Ct. 1700 (2002), and

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

same time, People For is devoted to promoting

religious and racial tolerance and to combating

discrimination and prejudice, a goal which can be

accomplished consistent with the First Amendment.

People For accordingly believes that it is important

2 ADL has participated in other relevant cases to reach

the Court. See ADL briefs amicus curiae filed in Wisconsin

v. Mitchell, 508 U.S. 476 (1993), and R.A.V. v. City of St.

Paul, 505 U.S. 377 (1992).

that the Court’s decision in this case makes clear,

consistent with the First Amendment, that a state may

proscribe conduct such as cross-burning when it is

intended and likely to instill fear and terror in others. —

Human Rights Campaign

Human Rights Campaign (“HRC”) is the nation’s

largest gay and lesbian civil rights organization, with

over 450,000 members nationwide. HRC is devoted to

fighting and ending discrimination on the basis of

sexual -orientation, and to protecting the basic civil

and human rights of gay, lesbian, and bisexual

Americans. To this end, HRC has provided federal and

state legislative, regulatory, and judicial advocacy, as

well as media and grass roots support on a range of

initiatives affecting gay, lesbian, and bisexual

individuals who suffer discrimination or hate crimes

because of their sexual orientation. HRC has a clear

interest in the prevention and punishment of the

criminal conduct at issue in this case.

National Asian Pacific American Legal Consortium

The National Asian Pacific American Legal

Consortium (“NAPALC”) is a national non-profit, non-

partisan organization whose mission is to advance the

legal and civil rights of Asian Pacific Americans.

Collectively, NAPALC and its affiliates, the Asian

American Legal Defense and Education Fund, the

Asian Law Caucus, and the Asian Pacific American

Legal Center of Southern California, have over 50

years of experience in providing legal and public policy

advocacy, as well as community education, on

discrimination issues affecting the communities they

serve. NAPALC is a leading national voice against

anti-Asian violence, and accordingly has a vital

interest in the issues presented in this case.

The National Conference for

Community and Justice

The National Conference for Community and

Justice (“NCCJ”), founded in 1927 as The National

Conference of Christians and Jews, is a human

relations organization dedicated to fighting bias,

bigotry, and racism in America. NCCJ promotes

understanding and respect among all races, religions,

and cultures through advocacy, conflict resolution,

and education. Uniquely positioned to enhance

community leadership development programs in its

service area with 61 offices in 34 states and the

District of Columbia, NCCJ has dedicated itself to

empowering leaders to create institutional change

directed to the transformation of communities so that

they may provide fuller opportunity to their citizens

and so that they are more inclusive and more just.

NCCJ is vitally interested in this case because of its

central mission of fighting bigotry and racism in

America, and because of the significant ramifications

that this case will have in our communities.

Asian American Legal Defense and Education Fund

The Asian American Legal Defense and

Education Fund (“AALDEF”), founded in 1974, is a

non-profit organization based in New York City.

AALDEF defends the civil rights of Asian Americans

nationwide through the prosecution of lawsuits,

through its legal advocacy, and through the public

dissemination, both in the communities it serves and

more broadly, of information respecting discrimination

against Asian Americans. AALDEF has throughout its

history been in the forefront of the campaign to end

violence against racial, national origin, and religious

groups. Along with its affiliates, AALDEF annually

publishes an audit of racial violence against Asian

Americans. Criminal laws that punish intentional

intimidation and serious threats are an important

weapon in the arsenal of a state’s responses to racial

violence, and AALDEF is accordingly interested in the

issues in this case.

Hadassah, the Women’s Zionist

Organization of America, Inc.

Hadassah, the Women’s Zionist Organization of

America, Inc. (“Hadassah”), founded in 1912, is the

largest women’s and the largest Jewish membership

organization in the United States, with over 300,000

members nationwide. In addition to Hadassah’s

mission of maintaining health care institutions in

Israel, Hadassah has a proud history of protecting the

rights of women and of the Jewish community in the

United States. Crimes involving symbols of hatred

such as burning crosses are an extreme manifestation

of bigotry, and historically Jews and women alike have

been targets of such crimes. Such crimes threaten the

viability of our communities. While Hadassah is

strongly committed to the First Amendment’s

guarantee of freedom of expression, Hadassah equally

supports laws that combat crimes of intimidation.

American Jewish Committee

The American Jewish Committee (“AJC”), a

national human relations organization with over

115,000 members and supporters and 33 regional

chapters nationwide, was founded in 1906 to protect

the civil and religious rights of Jews. AJC has

historically been a staunch defender of the First

Amendment’s guarantees of freedom of expression. At

the same time, AJC has been sensitive to the

constitutional limits of free speech and firmly believes

that purposeful intimidation and intentional threats of

violence have no place in our soci€ty- ~~

Jewish Council for Public Affairs

The Jewish Council for Public Affairs (“JCPA”) is

the coordinating body of 13 national and 122 local

Jewish community relations organizations. JCPA was

founded in 1944 to safeguard the rights of Jews

throughout the world and to protect, preserve, and

promote a just American society. JCPA holds that

crimes based on hatred and intimidation are

anathema to the fundamental democratic values upon

which this nation is founded.

Commission of Social Action of Reform Judaism

The Commission of Social Action of Reform

Judaism (“CSA”) is a joint instrumentality of the Union

of American Hebrew Congregations (“UAHC”) and the

Central Conference of American Rabbis (“CCAR”). The

900 congregations of UAHC encompass 1.5 million

Reform Jews; the membership of CCAR 1,800 Reform

rabbis. CSA establishes policy for the Religious Action

Center of Reform Judaism, established to advocate for

social and political policy in keeping with Jewish law

and theology as understood by Reform Judaism.

Crimes such as those involved here hit

particularly close to home for the Jewish people. All of

us have watched in horror as acts of violence against

Jews and Jewish institutions have, over the past year,

again terrorized Europe and nations across the globe,

creating an atmosphere of fear and intimidation. Laws

which proscribe such crimes underscore, indeed

strengthen, our nation’s historic promise of liberty and

justice. Jewish ethics support the struggle to uphold

such laws. Jews are taught that God created humans

b’tselem elohim, in the Divine Image, and that we are

all, therefore, deserving of equal treatment (Genesis

1:27). Jews are commanded that “You may not stand

idly by when your neighbor’s blood is being shed”

(Leviticus 19:16) and that “You shall not hate your

kinsfolk in your heart. . . . Love your fellow as

yourself” (Leviticus 19:17-18). Because of these

precepts, Judaism teaches the importance of tolerance

and acceptance of others. And because of the

importance of these precepts CSA has a keen interest

in this case.

American-Arab Anti-Discrimination Committee

The American-Arab Anti-Discrimination

Committee (“ADC”) is the national association of Arab

Americans that works in every sphere of public life to

promote and defend the interests of the Arab-

American community. ADC is a grassroots civil rights

organization welcoming people of all backgrounds,

faiths, and ethnicity as members. Since its founding

in 1980 by former U. S. Senator James Abourezk, it

has grown into the largest non-sectarian, non-partisan

civil rights organization in America dedicated to

protecting the civil rights of Americans of Arab

descent. ADC works with other civil rights

organizations and coalitions on a multitude of issues

that affect constitutional freedoms. With headquarters

in Washington, D.C., ADC also has more than 80

membership chapters nationwide. Through its Legal

Department, ADC offers counseling, advocacy, and

mediation, addressing hate crimes, employment and

educational discrimination, public accommodation

discrimination, immigration, housing, freedom of

speech, and other civil liberties.

ADC is committed to combating crimes of hate

while at the same time protecting the constitutional

guarantees of expression. As the national voice of the

Arab-American community, ADC supports and joins

the Anti-Defamation League and other amici in

submitting this brief, in the belief that freedom of

speech and expression are equally as important to the

American way of life as freedom from hate, and from

racial, ethnic, and religious bigotry in our society.

National Gay and Lesbian Task Force

Founded in 1973, the National Gay and Lesbian

Task Force (“NGLTF”) works to eliminate prejudice,

violence, and injustice against gay, lesbian, bisexual,

and transgender people at the local, state, and

national level. As part of a broader social justice

movement for justice and equality, NGLTF strives to

create a world that respects and celebrates the

diversity of human expression and identity, where all

may fully participate in society. In its mission, NGLTF

works to curtail hate crimes in this country, but

simultaneously respects the key right of free speech.

National Council of Jewish Women, Inc.

The National Council of Jewish Women, Inc.

(‘NCJW”) is a volunteer organization, inspired by

Jewish values, that works through a program of

research, education, advocacy, and community service

to improve the quality of life for women, children, and

families, and strives to ensure individual rights and

freedoms for all. Founded in 1893, NCJW has 90,000

members, supporters, and volunteers in over 500

communities nationwide. NCJW joins this brief in

light of its National Principle, which states that

“Human rights and dignity are fundamental and must

be guaranteed to all individuals,” and its National

Resolution supporting “The enactment and

enforcement of laws and regulations that protect civil

rights and individual liberties for all.”

Lawyers’ Committee for Civil Rights Under

Law of the Boston Bar Association

The Lawyers’ Committee for Civil Rights Under

Law of the Boston Bar Association (“Lawyers’

Committee”) is a non-profit law office that provides free

legal services to victims of discrimination based on

race or national origin. We have been successful in

some of Massachusetts’ most important civil rights

cases, including school desegregation, housing

discrimination, and voting rights cases. In 1982, the

Lawyers’ Committee created the Project to Combat

Racial Violence to address the crisis of racial violence

that was engulfing Boston and _ surrounding

communities. Twenty years later, we continue to

represent victims of racially motivated harassment,

violence, and intimidation throughout the Boston area,

and have participated as amicus curiae in numerous

cases involving the interpretation of our state hate

crimes law. The Lawyers’ Committee has an interest

in this matter because all victims of racial violence and

harassment deserve aggressive enforcement of their

state’s laws proscribing intimidation. Massachusetts

does not have a specific cross burning statute,

perhaps because the history of racism in New England

has manifested itself differently than that of other

states. But we support the vigorous enforcement of

such laws in other states, and believe that statutes

like Virginia’s are consistent with the First

Amendment.

a * *

All of the amici are uniquely situated to suggest,

if not a resolution of the competing interests presented

by this case, at least a mode of analysis through which

an answer to such questions may ultimately be

reached. As civil rights organizations, they each have

widely varying missions. Yet all nonetheless recognize

the paramount importance of protecting First

Amendment privileges, even if the exercise of such

privileges results in the expression of hateful ideas.

But amici also recognize that expressive conduct can

constitute a crime when a symbol of hatred such as

the burning cross is used to target others with the

intent and likely effect of instilling in them fear and

terror.

Amici believe that such crimes of intimidation

continue to be a serious problem in our country, that

legislatures should have the flexibility | to punish

expressive conduct which has such an intimidating

intent and likely effect, and that in doing so they do

not transgress First Amendment limitations. Amici

thus submit this brief, in support of neither petitioner

nor respondents, to advance their conviction that

expressive conduct may be proscribed and punished if

by its nature as “fighting words” it is outside the realm

of protected speech, and if the criminal proscription

requires a mens rea element of a specific intent to

intimidate or to threaten. A statute that meets these

requirements passes constitutional muster.

STATEMENT

Virginia Code § 18.2-423 provides, in pertinent

part, that:

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.

The statute also contains a presumption that “[alny

such burning of a cross shall be prima facie evidence

of an intent to intimidate ....” Respondents were

convicted of violating § 18.2-423. Respondent Black

burned a cross at a rally of the Ku Klux Klan

conducted on private property but within view of the

property of others. A jury found him guilty, believing

that the evidence was sufficient to support the

requirement of the statute that he intended to

intimidate. Respondents O’Mara and Elliott burned a

cross on the property of a neighbor, an African-

American, in the night in retaliation for the neighbor’s

complaints about Elliott’s “shooting guns in the

backyard.” O’Mara pled guilty to attempted cross

burning and conspiracy to commit cross burning,

reserving his constitutional challenge, and his guilty

plea constitutes an admission that he intended to

intimidate others. A jury found Elliott guilty of

attempted cross burning. As with Black, the jury

found that the evidence supported the requirement

that Elliott intended to intimidate his neighbor by

burning a cross.

SUMMARY OF ARGUMENT

1. Government may constitutionally proscribe

intimidation and threats, even if accomplished by

speech or expressive conduct. The essential First

Amendment safeguard for such regulation is found in

the mens rea requirement of intent to bring about the

desired end of instilling fear or terror in targeted

individuals. In focusing on this element, the Virginia

statute is consistent with the First Amendment.

2. The Virginia statute is neutral in viewpoint.

It seeks to accomplish the legitimate state goal of

proscription of intimidation without discrimination, by

banning all cross-burning, so long as accompanied by

the required specific intent. It does not ban only those

acts motivated by or which seek to express a

particular viewpoint.

3. That the Virginia statute singles out the

burning of crosses for particular proscription does not

invalidate it. It is not generally necessary to prohibit

either all acts of intimidation or none in order to guard

against government infringement on rights of

conscience, speech, and belief. Rather, it is sufficient

if a state legislature has made a reasoned judgment

that within the universe of threats, some are worse

than others.

4. The message of intimidating cross burning is

within the class of expressive conduct of such slight

social value as to permit of outright ban. This doctrine

of “fighting words” outside First Amendment reach

appropriately encompasses words that are intended to

and have the likely effect of creating fear of injury in

the addressee. The burning of a cross with the

requisite intent may be banned under this principle.

5. RA.V. v. City of St. Paul, 505 U.S. 377

(1992), does not contradict this conclusion. While that

case dealt with cross burning, it did not address a

statute that conditions proscription on the actor’s

intent to intimidate others. Moreover, under the rule

enunciated in that case, Virginia had the power to

regulate speech involving intimidating cross burning

because it had the power to regulate the broader class

of intimidating or threatening speech intended to

induce serious fear in others.

ARGUMENT

ASSAULTIVE AND UNPROTECTED SPEECH

MAY BE CONSTITUTIONALLY PROHIBITED

AND PUNISHED UNDER STATUTES SUCH

AS THE VIRGINIA STATUTE

The Virginia Supreme Court invalidated Virginia

Code § 18.2-423, asserting that “the selectivity of its

statutory proscription is facially unconstitutional

because it prohibits otherwise permitted speech solely

on the basis of its content... .” Black v.

Commonwealth, 267 Va. 764, 768 (2001). The

majority of that court felt that “[t}]he Virginia cross

burning statute is analytically indistinguishable from

the ordinance found unconstitutional in R.A.V. (v. City

of St. Paul).” Id. at 772. In so holding, the Virginia

court ignored the assaultive nature of the expressive

conduct at issue and its consequent lack of

constitutional protection.

A. The Statute Punishes Assaultive Speech

Designed to Induce Fear in Others, Not Any

Particular Viewpoint or Message.

It is axiomatic that a state legislature, in the

exercise of the state’s police power, may proscribe

conduct harmful to others. It is equally axiomatic that

such proscribable conduct includes _ intimidation.

Thus, expressive conduct or speech both intended and

likely to induce serious fear in others has long been

held subject to criminal proscription. The Virginia

legislature, as have the legislatures of other states with

historical legacies of racism, bigotry, and hatred, chose

to punish a particular form of assaultive speech or

intimidating conduct—the burning of a cross. It did

so, however, without reference to the content of that

expressive conduct, defining the crime instead by the

intent with which it is committed and only by that

intent. Cross burning per se is not prohibited by the

statute. What is prohibited is cross burning “with the

intent of intimidating any person... .”

Under the scheme of § 18.2-423, it does not

matter what substantive message a defendant

intended to convey by burning a cross. While

choosing a symbol that Americans uniformly view as

emblematic of racial and religious hatred, the

legislature did not choose to punish the mere

expression of hatred. It rather chose to punish

expression only when it crosses the constitutional line

into assaultive speech and is accompanied by the

intent to instill serious fear in those exposed to the

message.

Section 18.2-423 is accordingly limited. As

noted by the dissent below, “by its express terms, [it]

does not proscribe every act of burning a cross.” Black

v. Commonwealth, 262 Va. at 787. Rather, it punishes

such conduct only when performed with the requisite

mens rea—a specific intent to intimidate. As defined

by the courts of Virginia, “intimidation” refers to “acts

which put the victim ‘in fear of bodily harm.” Id.

Mere offensiveness based on the listener’s personal

characteristics is insufficient to constitute criminal

intimidation. It is defined not by reference to the

peculiar susceptibilities of the victim, but by the intent

of the actor. “Such fear must arise from the willful

conduct of the accused, rather than from some mere

temperamental timidity of the victim. . .~ .” id.

Because it focuses on the actor’s intent, and not the

addressee’s perception, the danger of regulation of

otherwise protected viewpoint is virtually non-existent.

Finally, that the Virginia statute punishes

harmful conduct and not viewpoint is illustrated by

the fact that guilt under the statute is not dependent

upon a motivation of racial or religious hatred. It is

equally triggered by mere personal animus or other

such content. For exampie, the evidence as to

whether O'Mara and Elliott harbored racial hatred was

ambiguous. But there was evidence to establish that,

whatever their reasons, these respondents intended to

instill fear in their targets. In punishing that

expressive conduct, the Virginia statute does not

violate First Amendment protections.

B. The Virginia Statute is Not Invalid In

Proscribing a Particular Form of Assaultive Speech.

While a_ statute punishing intimidation or

threats is constitutionally permissible, it may be

argued that the Virginia statute impermissibly focuses

upon certain racial or religious categories of

intimidation. Because it proscribes all threatening

uses of a burning cross, § 18.2-423 does no such

thing. But even if the statute were understood as

applying to particular forms of intimidation, this

argument would be flawed. Content neutrality places

restrictions upon the state’s ability to proscribe

intimidation—for example, a_ state could not

criminalize only acts of intimidation that are aimed at

members of a particular political party. To accept

content neutrality, however, does not require an all-or-

nothing-at-all approach—it is not necessary to prohibit

either all acts of intimidation or none. Were that the

case, many criminal laws that are unquestionably

lawful would raise issues of content neutrality.

A state may properly make a judgment that,

within the universe of threats, some are worse than

others. For instance, an assault with a deadly weapon

is, in most states, some form of aggravated assault.

The crime is more serious because the defendant has

exposed society to greater risk—even if the weapon is

not actually used—and has presumably caused

greater fear in the victim. These differences justify an

increased penalty. Likewise, a state may determine

that acts of bias-motivated intimidation are worse than

otherwise comparable acts, because these crimes

cause greater societal harm and injury to the victims.

That the Virginia legislature chose to proscribe

conduct that has a high propensity to intimidate and,

in its judgment, that causes greater harm to society, is

simply not constitutionally significant.

Similarly, it may be argued that the Virginia

legislature chose to proscribe a symbol, and that it

therefore intended to suppress a message identified

with that symbol. This argument proves too much.

While it is “a bedrock principle underlying the First

Amendment .. . that the government may not prohibit

the expression of an idea simply because society finds

the idea itself offensive or disagreeable,” Texas v.

Johnson, 491 U.S. 397, 414 (1989), the Virginia

legislature has not forbidden its citizens to burn

crosses in order to express racial or religious hatred.

This they remain free to do. What they may not do is

burn crosses with the intent of instilling serious fear,

for this invades others’ rights. See D., infra at 24.

Equally, that the burning of a cross has a direct

tendency to instill serious fear does not invalidate the

prohibition as content-based. The origin of the sym ol

underscores the power of its message. “The Klan...

appropriated one of the most sacred of symbols as a

symbol of hate.” Capitol Square Review & Advisory Bd.

v. Pinette, 515 U.S. 753, 771 (1995) (Thomas, J.,

concurring). But the burning cross not only is linked

to racial and religious hatred, but is directly

associated with violence, terror, and lawlessness.3 The

3 A late-night cross burning in the yard of a neighbor, with

the intent to intimidate, the crime of which respondents

O’Mara and Elliott were convicted, is an act of violence and

terror.

After the mother saw the burning cross, she

was crying on her knees in the living room.

[She] felt feelings of frustration and

intimidation and feared for her husband’s

life. She testified what the burning cross

symbolized to her as a black American:

“murder, hanging, rape, lynching. Just

about anything bad that you can name. It is

the worst thing that can happen to a person.”

United States v. Skillman, 922 F.2d 1370, 1378 (9th Cir.

1991).

use of this symbol, charged as it is with historical

associations of violence, accompanied by a specific

intent to intimidate, inflicts injury through speech.

Cross burning, of course, has been specifically

recognized as having such an effect. It is “not mere

advocacy, but rather an overt act of intimidation

which, because of its historical context, is often

considered a precursor to or a promise of violence . . .

” United States v. Lee, 935 F.2d 952, 956 (8th Cir.

1991).

The state may not proscribe the expression of

hate, whether racial, religious, anti-Semitic, or ethnic.

But the state may prohibit the use of a particular

symbol, one universally identified with violent

manifestations of hate, when it is employed to

intimidate. California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508, 515 (1972) (citation omitted)

(‘First Amendment rights may not be used as the

means or the pretext for achieving ‘substantive evils’

which the legislature has the power to control.”). The

latter objective is all the Virginia statute seeks to

accomplish, and it does not invade the precincts of the

First Amendment in doing so.

4 The Virginia statute states that “[ajny such burning of a

cross shall be prima facie evidence of an intent to intimidate

_.” To the extent that this presumption eliminates proof

of the state of mind of a defendant, in amici’s view the

statute may run afoul of First Amendment protections

which, under our formulation, require such proof.

C. Cross Burning With the Intent to Intimidate a

Targeted Individual is Expressive Conduct Outside

the Scope of First Amendment Protection.

In Chaplinsky v. New Hampshire, 315 U.S. 568

(1942), the Court held that “certain well-defined and

narrowly limited classes of speech, . . . including the

lewd and obscene, the profane, the libelous, and the

insulting or ‘fighting’ words” are not within the scope

of protection of the First Amendment. Jd. at 571-72.

As recognized by the Court in R.A.V. v. City of St. Paul,

505 U.S. 377 (1992), “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.” Jd. at 382-83, quoting Chaplinsky v. New

Hampshire, 315 U.S. at 572. For the reasons we have

discussed, the proscription here is within the classical

definition of “fighting words,” and as such outside the

scope of protection of the First Amendment.

This doctrine retains substantial force in the

context of assaultive hate speech. While Cohen uv.

California, 403 U.S. 15 (1971), and Lewis v. New

Orleans, 415 U.S. 130 (1974), refined the doctrine, in

one case requiring that the state must show that the

defendant directed “personally abusive epithets” at a

specific individual (Cohen v. California, 403 U.S. at

20), and in the other requiring that the words be

directed at a person with a predisposition to fight

(Lewis v. New Orleans, 415 U.S. at 135 (Powell, J.,

concurring)), the gravamen of the doctrine remains

that words which inflict serious and real injury are

both proscribable and punishable. See, e.g., Roberts

v. United States Jaycees, 468 U.S. 609, 628 (1984)

(‘violence or other types of potentially expressive

activities that produce special harms distinct from

their communicative impact . . . are entitled to no

constitutional protection”).

Viewed as the underpinning to punish

expressive conduct specifically intended and likely to

intimidate—in this case, cross burning—the doctrine

retains special force. As one leading commentator has

put it, “[ijf Chaplinsky is to maintain any

contemporary vitality, it must be understood to place

outside the First Amendment’s reach those words that

are intended to and have the likely effect of creating

fear of injury in the addressee.” Frederick M.

Lawrence, PUNISHING HATE: BIAS CRIMES UNDER

AMERICAN LAW 102 (1999).5 Statutes like the Virginia

statute do precisely that. In proscribing such “fighting

words,” these statutes properly regulate an area of

expressive conduct that is not protected by the First

Amendment.

D. The Court’s Holding in R.A.V. Does Not Control

This Case.

The Court’s holding in R.A.V. v. City of St. Paul,

505 U.S. 377 (1992), which the Supreme Court of

Virginia believed controlling, does not invalidate

5 Professor Lawrence is co-counsel to amici in this case, and

a co-author of this brief.

statutes like the Virginia statute. What distinguishes

such statutes, and the Virginia statute as well, from

the statute invalidated in R.A.V.—and what takes ‘he

respondents’ conduct here outside the realm of

protected speech—is the incorporation of the required

mens rea element of a specific “intent to intimidate.”

In R.A.V., St. Paul chose to punish cross

burning by reference to an effect on third parties

related to the content of the speech. While the statute

was construed by the Supreme Court of Minnesota to

proscribe only “fighting words” otherwise outside First

Amendment protections, it nonetheless swept within

its prohibition only those “fighting words” that “insult,

or provoke violence, ‘on the basis of race, color, creed,

religion or gender.” R.A.V., 505 U.S. at 391. In doing

so, it selected among different forms of speech, and

thus regulated the content or viewpoint of that speech.

“Fighting words” or not, this regulation or proscription

transgressed the First Amendment line.

But here, the statute does not select among

messages or content or viewpoint. Instead, it identifies

a particular type of conduct—the burning of a cross—

accompanied by a particular kind of mens rea—intent

to intimidate—and makes it illegal consistent with the

First Amendment. The Virginia statute does not select

among ideas, choosing to prohibit only particular

political or religious (or even hateful) messages. To the

contrary, the actor may utter whatever message he

wishes, hateful, distasteful, even violent. But when

the actor acts—by using fighting words—with the

required mens rea, with an intent to intimidate, he

passes outside the sphere of protected expression into

the sphere of proscribable activity.®

In locating its proscription in the actor’s intent,

the Virginia statute properly focuses on the right of

others to be free of assaultive conduct, and proscribes

expressive conduct without regard to content or

expression. Unlike R.A.V., this is true regardless of

the actor’s motive, and punishes the conduct whether

the motive is based on race, religion, or mere personal

animosity. This type of prohibition, focusing as it does

on intent and conduct of the actor, and not on

content, passes First Amendment muster even under

the rigorous test established by R.A.V..

That the speech here is proscribable when

accompanied by specific criminal intent to intimidate

is clear also from another aspect of R.A.V. As Justice

Scalia pointed out there, “[w]hen 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

6 The R.A.V. statute also did not require intentional conduct.

Rather, the ordinance challenged there could be violated by

negligent conduct if a defendant used a symbol “which one

knows or has reasonable ground to know arouses anger,

alarm or resentment in others on the basis of race, color,

creed, religion or gender... .” Jd. at 380. A statute which

can be violated by negligent conduct poses a more distinct

threat to First Amendment freedoms than one requiring the

state to prove intentional conduct, such as that here.

discrimination exists.” R.A.V. v. City of St. Paul, 505

U.S. at 388. The Virginia legislature chose to

proscribe the burning of a cross with the intent to

intimidate because of the clear harm criminal

intimidation poses to targeted individuals. In such a

case, the “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.” Jd. Thus, Virginia could constitutionally

choose to exclude this ome type of expressive

conduct—the burning of a cross with the specific

intent to intimidate—because it can constitutionally

prohibit speech that is intended and likely to

intimidate and threaten.

Amici emphatically support laws that proscribe

criminal conduct such as that at issue here. Yet amici

also stand firmly behind the commitment to free

expression. They would not and do not urge that

belief, conscience, or hateful speech alone may be

suppressed. The “bedrock principle” (Texas ov.

Johnson, 491 U.S. 397 at 414) that upholds

expression even of distasteful ideas leaves no room for

government regulation. But expression for the

purpose of intimidation, expressive conduct directed at

an individual to instill or inspire fear, is simply not

within the expansive realm of freedom of speech as we

know it. Society may properly guard against this evil.

As a corollary, of course, the burning of a cross

without the accompanying mens rea requirement of an

intent to intimidate would constitute protected speech.

Thus, amici concede that the burning of a cross at a

political rally as a general expression of racial or

religious hatred is protected expressive conduct.’ No

matter how odious or unpalatable the idea, amici

recognize the First Amendment protection accorded

such expression. While perhaps offensive to others, it

is nonetheless protected; that is the price we pay for

the First Amendment, and it is not too high a price.

An act intended to intimidate others is different

in kind, and forfeits expressive protection, from an act

intended to make a political, or racial, or religious,

point, even such a point infused or motivated by hate

or bias. We tolerate the expression of hatred because

the First Amendment guarantees freedom of all

expression, but we distinguish from true expression

words and expressive conduct that are intended and

likely to intimidate. In those cases, we may

constitutionally proscribe the use of symbols when

they are the means through which the vital force of

that intimidation is conveyed.

7 Amici take no position on whether the juries in these cases

properly found an “intent to intimidate” or whether the

evidence in this regard was sufficient to sustain the

convictions of Elliott and Black, the two respondents

convicted at trial. The two cases raise different problems of

proof, and in one the proof may well have been sufficient,

while in the other it may not have been. In particular,

proscribing the burning of a cross at a rally, without a

specific target of intimidation or threat, may not satisfy

constitutional requirements.

: * *

The intimidation of others is a serious crime. It

is no less a crime, and no less punishable, when

accomplished through the burning of a cross. While

that act may have expressive content, a state may

validly proscribe it when it does not single out any

particular viewpoint, but rather focuses only on the

act and the requisite specific intent of the actor.

Amici, leading American civil rights groups each

concerned in its own way with, and dedicated in its

own mission to, the eradication of hate, bigotry, and

bias-related violence, are mindful that we must tread

with great caution in regulating speech, conscience, or

belief. But there is no social value in the burning of a

cross accompanied by the specific intent to intimidate

others. It does no violence to the First Amendment to

bar such conduct.

28 29

CONCLUSION FREDERICK M. LAWRENCE, ESO.

BOSTON UNIVERSITY SCHOOL OF

LAW

765 Commonwealth Avenue

Boston, Massachusetts 02215

The judgment of the Supreme Court of Virginia

invalidating Virginia Code § 18.2-423 on the First

Amendment grounds specified in that court’s opinion

should be vacated.

Respectfully submitted,

Martin E. Karlinsky, Esq.

(Counsel of Record)

Katten Muchin Zavis Rosenman

575 Madison Avenue

New York, New York 10022

(212) 940-8800

HOWARD W. GOLDSTEIN, ESQ.

FRIED FRANK HARRIS SHRIVER &

JACOBSON

One New York Plaza

New York, New York 10004

(212) 859-8000

ROSINA K. ABRAMSON, ESQ.

STEVEN M. FREEMAN, ESQ.

ABBEY P. GANS, Esq.