Amicus Curiae Brief — Virginia v. Black

No. 01-1107 Ane 9 tee

In The

Supreme Court of the United States

¢

COMMONWEALTH OF VIRGINIA,

Petitioner,

V.

BARRY ELTON BLACK, RICHARD J. ELLIOTT,

AND JONATHAN O’MARA,

Respondents.

°

On Writ Of Certiorari To The

Supreme Court Of Virginia

S

BRIEF OF AMICUS CURIAE STATE OF

CALIFORNIA IN SUPPORT OF PETITIONER

+

BILL LOCKYER 1300 I Street, Suite 125

Attorney General of the Sacramento, California

State of California 94244-2550

MANUEL M. MEDEIROS Telephone: (916) 323-1996

State Solicitor General Fax No: (916) 324-8835

Counsel of Record

RICHARD M. FRANK

Chief Assistant Attorney

General

LOUIS VERDUGO, JR.

Senior Assistant Attorney

General

CATHERINE Z. YSRAEL

Supervising Deputy

Attorney General

ANGELA SIERRA

Deputy Attorney General

COCKLE LAW BRIEF PRINTING CO! (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTEREST OF THE STATE OF CALIFORNIA AS

a CE icticisinnntissineninnncescnsnescupensnsnenseevnessen

A. VIRGINIA’S CROSS-BUR}. ING STATUTE IS

CONSTITUTIONAL AS A CONTENT-

NEUTRAL REGULATION OF PROSCRIB-

EE ETIITE cnvccsiccsseinenessesebenscnveserescensnces

B. EVEN IF VIRGINIA’S CROSS-BURNING

STATUTE WERE DEEMED TO BE CON-

TENT-BASED, IT WOULD BE PERMISSI-

BLE BECAUSE THERE IS NO REALISTIC

POSSIBILITY THAT OFFICIAL SUPPRES-

SION OF IDEAS IS AFOOT ........ 0... eee eee

EY snccissctnsccinscnsenininvecswmetnessiasinnnanavecssnen

Page

ii

TABLE OF AUTHORITIES

Page

CASES

Black v. Commonwealth, 262 Va. 764, 553 S.E.2nd ,

TSB (BOO1).....ceccccsccisorccccccesesevecsecssecessossvesssosssvosessssosesssees

Frisby v. Schultz, 487 U.S. 474 (1988)......:ssseseseereeeeneenens 10

In re Steven S., 25 Cal.App.4th 598, 31 Cal.Rptr.2d

]O4 (1GDE) ..0000ccccccceecccccsceccccceccccccosnssesessssssssssossesoonsess 3, 8,9

People v. Carr, 81 Cal.App.4th 837, 97 Cal.Rptr.2d :

148 (BODO) ...0000ccccccceesscccsescocevceccceccsessesossssssnssncsssessonenenees

R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 .

(1GOB)....ccccccrescccccsssevccccsecsccssocsocccsessssveroosoossssonsssseess passim

United States v. Eichman, 496 U.S. 310 (1990) ...........:00+ 7

Watts v. United States, 394 U.S. 705 (1969)...........cceeee 6,7

Wisconsin v. Mitchell, 508 U.S. 476 (1993)..........s:eeeeees 7

STATUTES

California Penal Code

B 11G20......ccccccscccrcocsseeceersecesosssonssosocssssesessnssessnsenssssenseenes 9

B LVALUCC) ......ccecoccsscvcercrseserseveccersressseesessnssossonssnessnss 1, 2,8

§ LIA LU) ....c cc cececceeseeeeeeeeeeeeeeeeeeeeeeneeseseneneneeenennnnneesasanannns 1

Virginia Code

§ 18.2-423.........cccccssscsssscsssevsssscssecsrecensssnsssnessnssssosssnsennsees 11

1

INTEREST OF THE STATE OF CALIFORNIA

AS AMICUS CURIAE

Like Virginia, California has enacted a cross-burning

statute, proscribing what California considers to be a form

of “terrorism.” And, like Virginia, California seeks to

ensure that its statute be found by this Court to be per-

missible — without offense to the First Amendment.

California also concurs with Virginia that, insofar as these

statutes proscribe only conduct that is threatening, the

statutes should be deemed to be content-neutral, rather

than content-based. They should, therefore, be found to lie

outside the concern expressed in this Court’s decision in

E.AV. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992).

But California’s statute, by its terms, is narrower than

is Virginia’s statute. California's statute prohibits only

trespassory cross-burning for an intimidating purpose, i.e.,

on the property of another, without the authorization of

' California's “cross-burning” statute is expressly treated as a form

of terrorism:

Any person who burns or desecrates a cross or other reli-

gious symbol . . . on the private property of another without

authorization for the purpose of terrorizing the owner or oc-

cupant of that private property or in reckless disregard of

the risk of terrorizing the owner or occupant of that prop-

erty, or who burns, desecrates, or destroys a cross or other

religious symbol . . . on the property of a primary school,

junior high school, or high school for the purpose of terroriz-

ing any person who attends or works at the school or who is

otherwise associated with the school, shall be punished ....

Cal. Pen. Code §1141l(c). “Terrorizing” is defined as “caus(ing) a

person of ordinary emotions and sensibilities to fear for personal

safety.” § 11411(d).

2

f intimidating that

the occupant, and for the purpose 0

occupant. Cal. Pen. Code § 11411(c). California therefore

submits this brief to ensure that, in analyzing the issue

presented, the Court is aware of the different approaches

that the States take in the treatment of this evil.

4

SUMMARY OF ARGUMENT

California joins Virginia in urging that this Court

recognize the special injury that is inflicted by cross-

burning. Like an anonymous threatening phone call at

2:00 a.m., the unwelcome burning of a cross, OF any reli-

gious symbol on the property of another, carries with it :

particular credibility and fearsomeness as 4 threat Oo

violence. Furthermore, trespassory crose-burning, as

prohibited by California and other states, is both anony-

mous and particularly brazen, revealing that the porpetew

tor respects no boundaries. Cross-burning is —

dangerous. It manifests a willingness to risk the spread )

fire from the cross to other property — 4 yard, 4 residence -

in order to bring home the intensity of its threatening

message.

Cross-burnings strike fear, not only in their particular

victims, but in the surrounding neighborhoods. Cross-

burnings breed distrust and can thereby break down the

delicate social fabric of a community — particularly the

* An element of the California statute is that the cross-burning

must be “without authorization,” Cal. Pen. Code § 11411(c), w -

been construed to mean the authorization of the wstulecnmn™

People v. Carr, 81 Cal.App.4th 837, 842-43, 97 Cal.Rptr.2d 1 .

3

important and delicate balance of trust in communities of

diverse racial, ethnic, and religious makeup. Cross-

burnings cannot realistically be addressed as ordinary

malicious mischief; in recognition of the especially insidi-

ous nature of cross-burnings, that conduct must be ad-

dressed specially. California and other states have chosen

to do so.

California, like Virginia, proscribes a mode of

communication, in this case, the making of a threat of

personal injury by means of burning a cross or other

religious symbol. The intended message of the perpetrator

is utterly immaterial. What matters is only that the

conduct was accomplished for the purpose of intimidation

or, in California, terrorizing. Accordingly, as a content-

neutral regulation of clearly proscribable expression, the

Virginia statute does not implicate the “strict scrutiny”

analysis articulated by this Court in R.A. V.

But even if the Virginia statute were deemed to be

“content-based,” it would be permissible under R.A.V,,

because violation of the statute requires proof of intent to

intimidate. Therefore, “there is no realistic possibility that

official suppression of ideas is afoot.” R.A.V., 505 U.S. at

390. Furthermore, the statute falls within two permissible

bases recognized by this Court for regulation of proscrib-

able speech: First, only that cross-burning is proscribed

that engenders fear of personal injury, and that is the very

reason why threatening speech is proscribable at all. See

id. at 388. Second, proscription of cross-burning is justified

by Virginia, as by California, because of the “secondary

4

effect” of intimidation - without regard to the particular

content of the intended message. Jd. at 389.

7

ARGUMENT

A. VIRGINIA’S CROSS-BURNING STATUTE

IS CONSTITUTIONAL AS A CONTENT-

NEUTRAL REGULATION OF PROSCRIB-

ABLE CONDUCT

1. Cross-burning statutes like California’s and

Virginia’s are focused, not on any particular message

intended by the perpetrator, but on the particularly

pernicious mode in which that message — whatever it 1s —

is communicated, viz., “in a threatening (as opposed to a

merely obnoxious) manner,” see R.A.V., 505 US. at 393, by

means of burning a religious symbol. Threatening expres-

sive conduct, like “fighting words,” is analogous to a noisy

sound truck. “Each is . . . a ‘mode of speech’... ; both can

* Some courts speak of three exceptions articulated in RAV to the

general prohibition against content-based discrimination —

proscribable speech. See, e.g., In re Steven S., 25 Cal.App.4th 598,

Cal.Rptr.2d 644 (1994). Amicus, however, reads RAV. as —— ?

general justification for content-based discrimination within a class 0

proscribable speech — “so long as the nature of the content discrimina-

tion is such that there is no realistic possibility that official ———

of ideas is afoot,” R.A V., 505 U.S. at 390 = and providing two examples

of such a justification, viz., that “the basis for the content a

tion consists entirely of the very reason the entire class of speech at

issue is proscribable,” id. at 388, and that the content-based subclass :

proscribable speech is “associated with particular secondary re

the speech, so that the regulation is ‘justified without reference to

content of the ... speech.’” Jd. at 389 (alteration in original) (citations

omitted).

5

be used to convey an idea; but neither has, in and of itself,

a claim upon the First Amendment.” R.A.V., 505 U.S. at

386 (citation omitted).

The deliberate burning of religious symbols on the

property of another communicates a simple message — a

threat to personal safety. To be sure, a more specific

message might be inferred, on a case-by-case basis, from

the characteristic or trait of the victim of the intimidation,

but the statute draws no such distinctions. The proscrip-

tion at issue here applies to malicious and trespassory

burning of a religious symbol, whatever may be the in-

tended message: whether it is a threat based on the race of

the victims; the religious beliefs of tue victims (e.g.,

Muslim); the nationality of the victims (e.g., Palestinian);

the sexual orientation of the victims; the profession of the

victim (e.g., a doctor who performs abortions); or, indeed,

any other basis for which, under the circumstances, a

burning religious symbol might reasonably be understood

by the victim as a threat to personal safety. Under statutes

like Virginia’s and California’s, it matters only that the

perpetrator burns the cross (or other religious symbol) for

the purpose of intimidating those persons who are the

objects of the message. Furthermore, the burning of a

religious symbol for any purpose other than intimidation is

not proscribed by either statute.

2. Cross-burning statutes like Virginia’s and Califor-

nia’s, therefore, should be treated as content-neutral and

exempt from the strict-scrutiny analysis articulated in

R.A.V. Indeed, the Court in R.A.V. expressly acknowledged

that “the reason why fighting words are categorically

excluded from the protection of the First Amendment is

not that their content communicates any particular idea,

but that their content embodies a particularly intolerable

6

(and socially unnecessary) mode of expressing whatever

idea the speaker wishes to convey.” R.A.V., 505 U.S. at 393.

The Court noted that, “St. Paul has not singled out an

especially offensive mode of expression - it has not, for

example, selected for prohibition only those fighting words

that communicate ideas in a threatening (as opposed to

merely obnoxious) manner. Rather, it has proscribed

fighting words of whatever manner that communicate

messages of racial, gender, or religious intolerance.” Id. at

393-94.

Unlike St. Paul, California and Virginia have singled

out “an especially offensive mode of expression,” viz.,

terrorizing or intimidation by use of a burning of a reli-

gious symbol, without regard to the intended message of

the perpetrator. This Court has previously recognized that

a true threat to personal safety enjoys no constitutional

protection. Watts v. United States, 394 U.S. 705 (1969); see

also, R.A.V., 505 U.S. at 388 (“[TJhe reasons why threats of

violence are outside the First Amendment . . . have special

force when applied to the person of the President.”). The

proscription against cross-burning in the California and

Virginia statutes is “on the basis of a noncontent element,

id. at 386, viz., intimidation and, in California, trespassory

terrorizing. As a facially content-neutral regulation of

conduct, the statutes are not subject to the strict scrutiny

mandated by the Court in R.A.V.

7

B. EVEN IF VIRGINIA’S CROSS-BURNING

STATUTE WERE DEEMED TO BE CON.

TENT-BASED, IT WOULD BE PERMISSI-

BLE BECAUSE THERE IS NO REALISTIC

POSSIBILITY THAT OFFICIAL SUP-

PRESSION OF IDEAS IS AFOOT

1. The Virginia Supreme Court incorrectly treated

Virginia’s cross-burning statute as content-based because

of the original motivation behind enactment of the statute.

Black v. Commonwealth, 262 Va. 764, 774, 553 S.E.2d 738

(2001) (“While not specifically stating that ‘race, color,

creed, religion, or gender’ is the subject of proscription, the

absence of such language does not mask the motivating

purpose behind the statutory prohibition of cross burn-

ing.”). But nothing in R.A.V. suggests that courts should

look behind the facial neutrality of a cross-burning stat-

ute. In this regard, the state court’s reliance on United

States v. Eichman, 496 U.S. 310 (1990), see Black v.

Commonwealth, 262 Va. at 775, is inapposite. In Eichman,

the Court looked behind the facial neutrality of the statute

in order to safeguard the expression of permissible expres-

sive conduct, viz., expressive burning of the flag. In this

case, however, true threats of personal injury — no matter

how delivered — should never enjoy constitutional protec-

tion. Watts v. United States, 394 U.S. 705; cf., Wisconsin v.

Mitchell, 508 U.S. 476, 484 (1993) (“[A] physical assault is

not by any stretch of the imagination expressive conduct

protected by the First Amendment.”). Since the cross-

burning statute facially proscribes a class of threats based

only on the mode of delivery, and not on its content, no

legitimate free-speech interest is served by considering

8

whether the legislature might originally have passed en

statute to address a then-common pattern of threats base

on race.

2. Even if the statutes were deemed to be content-

based, they clearly come within the permissible justifica-

tions recognized by this Court for content-based gem

of otherwise proscribable speech. Although the Co

discussed three possible justifications for such a

the Court acknowledged that others were possible. “4

deed, to validate such selectivity (where totally osanged

able speech is at issue) it may not even be werent

identify any particular ‘neutral’ basis, so long as ,

nature of the content discrimination 1s such that there is

no realistic possibility that official suppression of os

is afoot.” R.A.V., 505 U.S. at 390. Amicus vy gd

submits that, inasmuch as both the California and t :

Virginia statutes, by their very terms, proscribe only

‘ A California intermediate appellate court has also B gp or

California’s statute as amounting to content-based — el ~

because of the legislature’s original intent, but because 0 a —

origins of cross-burning. In re Steven S., 25 Cal.App.4th at Fae

burning conveys a message — the Ku Klux Klan's creed of — 7 -"

As such, it implicates the First Amendment’s guarantee 0 freedo 2S

speech (footnote omitted)”); see also id. at 612-613 (statute is —

ble under R.A.V., “although section 11411, subdivision (c), — »

ainst malicious cross-burning on the basis of content ). The —

court upheld the California statute as coming within the justifica —~

recognized by the Court in R.A.V. Nevertheless, or — y

in its conclusion a

bmits that the appellate court erred in i '

proved content neutrality. The Ku “a Klan — — decode =

referenced by the court is not always message com! en

1(c) prohibits the a y,

-b , and on its face, section 1141:

aaah the message is race-based, religion-based, or otherwise.

9

cross-burning that is for the purpose of intimidation or

terrorizing — and, in California — only if the cross-burning

is by means of a trespass onto the victim’s property — there

is “no realistic possibility that official suppression of ideas

is afoot.”

3. Indeed, the California and Virginia statutes fit

within the two examples of permissible justifications that

this Court recognized. First, to the extent that these

statutes might be deemed to be content-based because of

some implicit message of category-based intolerance that

is communicated by the burning of a religious symbol, “the

basis for the content discrimination consists entirely of the

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

able.” See R.A.V., 505 U.S. at 388. The California Legisla-

ture has made clear that the purpose of proscribing cruss-

burning is the protection of every person, “regardless of

race, color, creed, religion, gender, or national origin,”

to be secure from fear and intimidation. Cal. Pen. Code

§ 11410. These are the very reasons why threats of per-

sonal injury are proscribable at all. See R.A.V., 505 U.S. at

388 (recognizing that threats of violence are “outside the

First Amendment”). And second, as has been repeatedly

emphasized, the target of these cross-burning statutes is

not the message, but the “secondary effect” of intimidation

and, in California’s case, trespassory terrorizing. See In re

Steven S., 25 Cal.App.4th at 612; Cal. Pen. Code § 11410.

As this Court recognized, content-based discrimination

against a subclass is permissible when the subclass

“happens to be associated with particular ‘secondary

effects’ of the speech, so that the regulation is ‘justified

without reference to the content of the . . . speech.’” R.A.V.,

505 U.S. at 389 (alteration in original) (citations omitted).

10

4. There is no dispute here that state justification for

the cross-burning statute is compelling. St. Paul justified

its cross-burning statute as “help[ing] to ensure the basic

human rights of members of groups that have historically

been subjected to discrimination, including the right of

such group members to live in peace where they wish.” Id.

at 395. This Court acknowledged that these interests are

compelling. Jd. But, by enacting a content-neutral cross-

burning statute, Virginia, like California, has chosen to

extend its concern to secure the right to a peaceful exis-

tence beyond historically discriminated groups, to all who

might reasonably be intimidated and terrorized by simi-

larly expressed threats of violence. This Court has recog-

nized that, “‘{t]he State’s interest in protecting the well-

being, tranquility, and privacy of the home is certainly of

the highest order in a free and civilized society.’” Frisby v.

Schultz, 487 U.S. 474, 484 (1988) (citation omitted) (up-

holding ordinance restricting residential picketing).

+

11

CONCLUSION

For the reasons stated, Amicus Curiae State of Cali-

fornia respectfully urges the Court to reverse the judg-

ment of the Supreme Court of Virginia and uphold

Virginia Code § 18.2-423 as a permissible regulation of

conduct, consistent with the First Amendment.

Respectfully submitted,

BILL LOCKYER

Attorney General of the

State of California

MANUEL M. MEDEIROS

State Solicitor General

Counsel of Record

1300 I Street, Suite 125

Sacramento, California 94244-2550

Telephone: (916) 323-1996

Fax No: (916) 324-8835

August 9, 2002