Amicus Curiae Brief — Virginia v. Black

_

.

et ae

SEP 9 2002

OFFICE OF THE Cl ERK |

No. 01-1107

—LLLL———————_—_——————————~

IN THE

SUPREME COURT OF THE UNITED STATES

SJ

COMMONWEALTH OF VIRGINIA,

Petitioner,

Vv.

BARRY ELTON BLACK, ET AL.,

Respondents. —

+

On Writ of Certiorari to the

Supreme Court of Virginia

S

BRIEF AMICUS CURIAE OF THE RUTHERFORD INSTITUTE

IN SUPPORT OF RESPONDENTS

+

John W. Whitehead

Steven H. Aden (Counsel of Record)

THE RUTHERFORD INSTITUTE

112 Whitewood Road

Charlottesville, VA 22901

Tel.: (434) 978-3888

Counsel for Amicus Curiae

September 2, 2002

TABLE OF CONTENTS

ee I ciciceiesittateniinssncintsibintineninninciesiicinneies i

INTEREST OF AMICUS I ccenccilenstneniemenvinientinienniinisinveminieiee ]

ST ID ccctececsesntccenesttaninnanantaninennsennseenniiiiiies 2

ID cniaceinctntinncsnesniniiamsennecnmainninantesiimaenuniieuen 2

I. VIRGINIA CODE ANN. § 18.2-423 Is A PROHIBITED

CONTENT-BASED CRIMINAL STATUTE.. ........0000c000000- 2

Il. THE STATUTE IS NOT NARROWLY TAILORED TO

ACHIEVE THE VALID LEGISLATIVE END OF

PREVENTING INTIMIDATING CONDUCT DIRECTED

TOWARD MINORITIES BECAUSE VIRGINIA ALREADY

EMPLOYS STATUTORY MEANS TOWARD THAT END

THAT ARE NOT CONTENT-BASED.. .........00eseeeeeeeeeeeess 8

III. THE BURDEN-SHIFTINGFROVISION OF THE STATUTE

VIOLATES RESPONDENTS’ RIGHT TO DUE PROCESS

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) ............ 10

Arkansas Educ. Tel. v. Forbes, 523 U.S. 666 (1998) 5-6

Ashcroft v. Free Speech Coalition, ___ U.S. ___, 122

BAX, TFG GHGS ccccccssscsssessntnievennisiamaeanin 2-3

Boos v. Barry, 485 U.S. 312 (1988) .......cceeeeeeeseeeee 4-5

Cantwell v. Connecticut, 310 U.S. 296 (1940) ............. 7

Carella v. California, 491 U.S. 263 (1989) .......... 10-11

City of Erie, et al v. Pap's A.M., TDBA

“Kandyland,” 529 U.S. 277 (2000) ...........isccsseseeeeeeee 4-5

Cohen v. California, 403 U.S. 15 (1971) .........ceeeeee 4-5

Cornelius v. NAACP Legal Defense Fund, 473 U.S.

FOO (IGE) nccccssssssesntenmnmnm 5

Dambrot v. Central Michigan University, 839

F.Supp. 477 (E. Dist Mich. 1993) .0.........scssseessseseeeeeeeees 7

Davis v. United States, 160 U.S. 469 (1895) .............. 11

District of Columbia v. Clawans, 300 U.S. 617 (1937)

oceconsossnssconsestesentetannnetiemsedateninimaiaa 12

Duncan v. Louisiana, 391 U.S. 145 (1968) ................. 12

Forsyth County, Ga. v. Nationalist Movement, 505

Se See TIE crcriestssicriesnctennnsessnsnensenessnstensnsnezsnenaseessees 5

Francis v. Franklin, 471 U.S. 307 (1985) .........ccc0000 11

Good News Club v. Milford Central School Dist.,

SE a IITEDD scentetonenccnnesntncanenantenesnenscnscnnesnsenssascesse 4

Heckler v. Campbell, 461 U.S. 458 (1983) ............. 9,10

Hess v. Indiana, 414 U.S. 105 (1973) ....ccccccccccceseeseeseees 5

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) ,

In re Winship, 397 U.S. 358 (1970) ..........ccccseeeenees 10, 12

lota Xi Chapter of Sigma Chi v. George Mason Univ..,

773 F.Supp. 792 (E. Dist. Va. 1991), aff'd, 993 F.2d

ee 7

Leary v. United States, 395 U.S. 6 (1969) 0.0... 11

Legal Services Corp. v. Velazquez, 531 U.S. 533

EEE 6

McGoldrick v. Compagnie Generale, 309 U.S. 430(1940) :

Mullaney v. Wilbur, 421 U.S. 684 (1975) ........ccccc000 11

NEA v. Finley, 524 U.S. 569 (1998) .........c.ccessesseeseesees 6

New York Times v. Sullivan, 376 U.S. 254 (1964) ........ 7

Patterson v. New York, 432 U.S. 197 (1997) ............ 10

R.A.V. v. St. Paul, 505 U.S. 377 (1992) ......c.c0000 passim

Regents of Univ. of Wisconsin v. Southworth, 529

CLE, SE GEES ccnsesssesssmenssesmnsssmmmeeemnennnenteemnenn 6

Rosenberger v. Rector & Visitors of the University of

Patain, FES GE. GED GIONS cereememscensnneemnen 6

Sandstrom v. Montana, 442 U.S. 510 (1979) ............. 11

Street v. New York, 394 U.S. 576 (1969) .........cccccecseeee 5

Stromberg v. California, 283 U.S. 359 (1931) .......... 10

Terminiello v. Chicago, 337 U.S. 1 (1949) ......... 5,7, 10

Texas v. Johnson, 491 U.S. 397 (1989) ............00008 5,12

Tinker v. Des Moines School Dist., 393 U.S. 503

{| Q

Vance v. Terrazas, 444 U.S. 252 (1980) ..........ccccccc00e 10

Wisconsin v. Mitchell, 508 U.S. 476 (1993) ............00000 8

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

St. PAUL, MINN. Leais. CODE § 292.02 (1990) ........... 4

VA. CODE ANN. § 18.2-423.1 (2001) ..........cccccccceeeeees 3

VA. CODE ANN. § 18.2-423 (2001) .0.........cceeeeee passim

-iv-

~ ———_— ——<— ere S —_—

- ——- ae ee eee ees

VA. CODE ANN. § 18.2-423.01 (2001) .........-cceceeeeeneees

Va. CODE ANN. § 18.2-86 (2001)

-V-

INTEREST OF AMICUS CURIAE'

is not content-based, i.e., that it is not targeted at the expressive

aspect of cross-burning but at its effects. Second, amicus will

discuss whether, assuming arguendo that racial mtimidation is

end. The Court’s amicus will also briefly address, with the

forbearance of the Court, one important issue not included

within the Question: whether the burden-shifting provision of

Va. CODE ANN. § 18.2-423, which states that the buming of a

cross under the circumstances proscribed by the statute “shall

be prima facie evidence of an intent to intimidate a person or

' Counsel of record to the parties m this case have consented to the

filing of an amicus curiae brief by The Rutherford Institute, and

letters reflecting said consent are on file with the clerk of the Court.

No person or entity, other than the Institute, its supporters, or its

counsel, made a monetary contribution to the preparation or

submission of this brief.

group of persons,” denied Respondents their Sixth Amendment

right to a jury trial and Fourteenth Amendment right to due

process. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

SUMMARY OF ARGUMENT

Amicus respectfully submits that the Commonwealth of

Virginia’ contention that Va. Code Ann. § 18.2-423 is not

viewpoint discriminatory is constitutionally untenable. It is a

well-established maxim of First Amendment jurisprudence that

a law targeting expression because of its anticipated offensive

impact is viewpoint discriminatory, and cannot be upheld

unless a compelling interest exists for it and no less restrictive

means to further that interest exist. The Commonwealth can

and does employ less restrictive means to proscribe the

secondary effects of the speech at issue in this case.

Amicus also submits that the statute’s burden-shifting

provision, stating that the burning of a cross “shall be prima

facie evidence of an intent to intimidate,” contravenes the

rights of trial by jury and due process protected by the Sixth

and Fourteenth Amendments, respectively. The Supreme

Court has repeatedly struck down burden-shifting statutes and

jury instructions that place the burden of negating criminal

intent upon ‘the defendant as fundamentally opposed to

traditional notions of fair play and justice in the adversary

system.

ARGUMENT

I. VIRGINIA CODE ANN. § 18.2-423 Is A

PROHIBITED CONTENT-BASED CRIMINAL

STATUTE.

“{A] law imposing cnminal penalties on protected speech

is a stark example of speech suppression.” Ashcroft v. Free

Speech Coalition, __ U.S. ____, 122 S.Ct. 1389, 1398 (2002).

“{E]ven minor punishments can chill protected speech... ” Id.

and psychological harm (e.g., flag buming, racist rhetoric,

etc.). Yet the Commonwealth subjects to legislative sanction

only two forms of expression, both symbolic: the buming cross

and the Nazi swastika, as the Virginia Code also proscribes

posting a swastika on another’s property with the intent to

the language of

both statutes is effectively identical.

parallel statutes, which carve out for criminal sanction

most hated symbols in America, leads inexorably to ‘ie

itt

-

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rf

2 Va. CODE ANN. § 18.2-423.1 provides:

Placing swastika on certain property with intent to

intimidate; penalty; prima facie evidence of intent

It shall be unlawful for any person or persons, with the

intent of intimidating another person or group of persons, to

place or cause to be placed a swastika on any church,

synagogue or other building or place used for religious

worship, or on any school, educational facility or community

center owned or operated by a church or religious body.

A violation of this section shal] be punishable as a Class

6 felony.

For the purposes of this section, any such placing of a

swastika shall be prima facie evidence of an intent to

intimidate another person or group of persons.

3

The Supreme Court has squarely and repeatedly rejected

the proposition that government may restrict display of a

symbol in order to avoid an adverse public reaction to its

message. Good News Club v. Milford Central School Dist.,

533 U.S. 98, 119 (2001); Cohen v. California, 403 U.S. 15, 23

(1971). Mere “{ujndifferentiated fear... of disturbance is not

enough to overcome the right to freedom of expression.”

Tinker v. Des Moines School Dist., 393 U.S. 503, 508 (1969).

The Virginia cross-burning statute cannot be meaningfully

down by the Court on this basis in R.A.V. v. St. Paul, 505 U.S.

377 (1992). The petitioner in RA.V. was charged with

violating the St. Paul Bias-Motivated Cnme Ordinance, ST.

PAUL, MINN. LEGIS. CODE § 292.02 (1990), for burning a cross

in the yard of an African-American family. Finding the ban an

unconstitutional content regulation on symbolic speech, id. at

386, the Court rejected St. Paul’s argument that the ordinance

was constitutional because it targeted criminal conduct — racial

intimidation — stating, “The First Amendment does not permit

St. Paul to impose special prohibitions on those speakers who

express views on disfavored subjects.” /d. at 391. “The point

of the First Amendment is that majority preferences must be

expressed m some fashion other then silencing speech on the

basis of its content.” Jd. at 392. While St. Paul was entitled to

express that hostility, it could not do so “through the means of

imposing unique limitations upon speakers who (however

benightedly) disagree.” Jd. at 396.

Like St. Paul, the Commonwealth’s justifications for its

cross-burning statute boii down to the notion that government

may prohibit “controversial” speech because of its impact. That

is the very essence of prohibited viewpoint discrimination,

however — controlling speech because of the content of the

message. City of Erie, et al v. Pap's A.M. TDBA

“Kandyland,” 529 U.S. 277 (2000); Boos v. Barry, 485 U.S.

312 (1988). States may control speech based on the

“secondary effects” that ensue from it, but such secondary

effects may not include the impact of the speech upon the

audience. Ciel fate, nave 63 Guamneinees

reached nude dancing because “the ordinance d[id] not attempt

to regulate the primary effects of the expression, ie. the effect

on the audience of watching nude erotic dancing, but rather the

secondary effects, such as the impacts on public health”’).

Thus, “to determine what level of scrutiny applies to the

ordinance at issue here, we must decide ‘whether the State's

regulation is related to the suppression of expression.” Jd. at

289, quoting Texas v. Johnson, 491 U.S. 397, 403 (1989). Any

prohibition on the secondary effects of controversial speech

must be content and viewpoint-neutral. Cornelius v. NAACP

Legal Defense Fund, 473 U.S. 788, 811 (1985); Arkansas

Educ. Tel. v. Forbes, 523 U.S. 666, 676 (1998). “[PJublic

expression of ideas may not be prohibited merely because the

ideas are themselves offensive to some of thei hearers.”

Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988), quoting

Street v. New York, 394 U.S. 576, 592 (1969).? See Forsyth

County, Ga. v. Nationalist Movement, 505 U.S. 123, 134

(1992) (“Listeners' reaction to speech is not a content-neutral

basis for regulation.”’). The Commonwealth criminally

prosecuted Respondents for displaying the buming cross

specifically because it was a buming cross, i.e., an expression

> See also Hess v. Indiana, 414 U.S. 105, 107 (1973)(statement

“We'll take the f—ing street later” not punishable as “fighting

words,” since not directed to any person or group m particular);

Cohen v. California, 403 U.S. 15, 16 (1971) (appearance in

municipal court wearing a jacket bearing the words “F— the draft”

not punishable as “fighting words.”); Terminiello v. Chicago, 337

U.S. 1 (1949) (viciously critical statements abou: various political

and racial groups protected).

of a certain viewpoint. “[T]he specific motivating ideology or

the opinion or perspective of the speaker [was] the rationale for

the restriction.” Rosenberger v. Rector & Visitors of the

University of Virginia, 515 U.S. 819, 829 (1995). The burning

cross is, perhaps alone among expressive symbols save the

Nazi swastika, a virtually unequivocal communication: “a

distinctive idea, conveyed by a distinctive message,” RA.V. v.

City of St. Paul, 505 U.S. at 391-392. It is for this very reason

that cnimuinalizing its display cannot be regarded as content or

viewpoint-neutral. One cannot conceive of a rhetorically

No Supreme Court case holds that expressive conduct may

be proscribed based upon its offensive impact* The only

narrow exceptions to the protections of the First Amendment

under the Supreme Court’s “limited categorical approach” are

‘ — This rule holds even where government legislative or executive

Officials have established fora in the context of governmental

programs that further legitimate interests of the state, such as

broadcast debates, Arkansas Educ. Tel. v. Forbes, supra (public

broadcaster would be prohibited from excluding third-party

candidate from public debate if based on viewpoint); funding of the

arts; NEA v. Finley, 524 U.S. 569 (1998) (funding decisions for

government arts program based on "aesthetic merit" could not

discriminate on political viewpoint); funding for university student

publications, activities and speech, Rosenberger v. Rector & Visitors

of Univ. of Va., supra (prohibiting viewpoint based exclusion of

publication from university forum for funding); Regents of Univ. of

Wisconsin v. Southworth, 529 U.S. 217 (2000) (student association

fees permitted provided neutrally allocated among student

organizations); and programs for legal representation for indigents m

civil matters, Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001)

(striking down Congressional prohibition on constitutional

challenges to welfare law by organizations receiving federal legal

services funding).

for obscenity, defamation and “fighting words.” RA.V. v. St.

Paul, 505 U.S. at 383. As reprehensible as Respondents’ views

are, “The First Amendment does not recognize exceptions for

bigotry, racism, and religious intolerance or ideas or matters

some may deem trivial, vulgar or profane.” Jota Xi Chapter of

Sigma Chi v. George Mason Univ., 773 F.Supp. 792, 795 (E.

Dist. Va. 1991), aff'd, 993 F.2d 386 (4" Cir. 1993); Dambrot

v. Central Michigan University, 839 F.Supp. 477, 484 (E. Dist.

Mich. 1993). In fact, the Court has recognized that the First

Amendment regards dialogue and disputation as a desired end

of protected expression, not just its unfortunate by-product:

[A] function of free speech under our system of

government is to invite dispute. It may indeed best

serve its high purpose when it induces a condition of

unrest, creates dissatisfaction with conditions as they

are, or even stirs people to anger.

Terminiello v. Chicago, 337 U.S. at 4.° The right to freely

speak vile ideas, and the immediate harsh reaction they should

generate from a healthy body politic, are tonic to a free

society. An unspoken idea goes unchallenged, and its

adherents may be emboldened by the false belief that their

views are widely accepted, or would be embraced if allowed to

be broadcast uncensored. It is only the scorching heat of public

debate that withers a despicable idea.

5 See Cantwell v. Connecticut, 310 U.S. 296, 310 (1940) (“In the

realm...of political belief, sharp differences arise. In both fields

[politics and religion] the tenets of one man may seem the rankest

error to his neighbor.”); New York Times v. Sullivan, 376 U.S. 254,

271 (1964).

Il. THE STATUTE IS NOT NARROWLY TAILORED TO

ACHIEVE THE VALID LEGISLATIVE END OF

PREVENTING INTIMIDATING CONDUCT

DIRECTED TOWARD MINORITIES BECAUSE

VIRGINIA ALREADY EMPLOYS STATUTORY

MEANS TOWARD THAT END THAT ARE NOT

CONTENT-BASED.

VIRGINIA CODE ANN. § 18.2-423 cannot be regarded as

narrowly tailored to achieve the end of preventing imtimidating

and threatening actions against racial minorities because less

restrictive means are available and are already in fact employed

by the Commonwealth. Apart from their expressive content,

the actions of Respondents Elliott and O’Mara were in fact

criminal under existing Virginia law.° It is a Class 6 felony to

maliciously set fire to wood, fencing, grass or other flammable

material that is capable of spreading fire to land, the very act

committed by Elliott and O’Mara in buming an object on the

victim’s property. See VA. CODE ANN. § 18.2-86 (2001). As

the Court observed in Wisconsin v. Mitchell, “The First

Amendment does not protect violence.” 508 U.S. 476, 484

(1993).

Moreover, the Commonwealth has already passed a lesser

restrictive version of the cross-burning statute (although the

Statue at issue remains on the books). After the decision of the

Virginia Supreme Court, the Virginia General Assembly

enacted VA. CODE ANN. § 18.2-423.01, which was intended to

redress the constitutional infirmities of the cross-burning

statute. It provides:

® The Court’s amicus does not believe that the actions of

Respondent Black could be prosecuted by the Commonwealth under

any properly drawn criminal statute.

8

18.2-423.01. a eo

a highway or other public place with intent to

intimidate; penalty

A. Any person who, with the intent of intimidating any

person or group of persons, burns an object on a

highway or other public place m a manner having a

direct tendency to place another person in reasonable

fear or apprehension of death or bodily injury is guilty

of a Class 6 felony.

History: 2002, cc 589, 600. This statute eliminates the

reference to a “cross,” replacing it with the content-neutral

term “object.” Jd. The statute also eliminates the burden-

shifting presutuption of intent to mtimidate present in § 18.2-

423, the constitutional effect of which will be discussed below.

Although the present case is not the proper forum to address

the constitutionality of this new provision, it is clearly a less

objectionable means to the end sought by the Virginia General

Assembly.

Ill. THE BURDEN-SHIFTING PROVISION OF THE

STATUTE VIOLATES RESPONDENTS’ RIGHT TO

DUE PROCESS.

Ordinarily, the Court will confine its review to federal

questions raised by or fairly included within the questions

presented to the Court. However, a respondent “may support

the judgment [of the state court] m his favor upon grounds

different from those upon which the court below rested its

judgment,” McGoldrick v. Compagnie Generale, 309 U.S. 430,

434 (1940), provided it is done only in “exceptional cases.”

Heckler v. Campbell, 461 U.S. 458, 468 n.12 (1983). The

Court has stated, “consideration of issues not presented in the

jurisdictional statement or petition for certiorari and not

presented in the [lower court] is not beyond our power, and in

appropriate circumstances we have addressed them.” Vance v.

Terrazas, 444 U.S. 252, 258-59 n_ 5 (1980). The Court has

utilized the plain error doctrine to address constitutional

infirmities of state criminal statutes targeted at speech in —

several important First Amendment cases, notably Terminiello

v. Chicago, 337 U.S. 1, 5-6 (1949) and Stromberg v.

California, 283 U.S. 359 (1931).

The present case presents such an “exceptional

circumstance.” Heckler, supra. The issue of whether a

statutory provision that shifts the burden of proof of an element

of a criminal charge to the defendant comports with the due

process provisions of the Fifth and Fourteenth Amendments

has recently been characterized by the Court as “of surpassing

importance.” Apprendi v. New Jersey, 530 U.S. 466, 477

(2000).

Although it is normally "within the power of the State to

regulate procedures under which its laws are carried out,

including the burden of producing evidence and the burden of

persuasion," Patterson v. New York, 432 U.S. 197, 201-205

(1997), “{t]he Due Process Clause of the Fourteenth

Amendment denies States the power to deprive the accused of

liberty unless the prosecution proves beyond a reasonable

doubt every element of the charged offense.” Carella v.

California, 491 U.S. 263, 265 (1989); Apprendi, 530 U.S. at

477; In re Winship, 397 U.S. 358, 364 (1970). Jury instructions

relieving States of this burden violate a defendant's due process

nghts:

Such directions subvert the presumption of innocence

accorded to accused persons and also invade the

truth-finding task assigned solely to juries in criminal

cases.

10

"8 CEE TZ

Carella v. California, 491 U.S. at 263 (jury instructions

allowing presumption against defendant of intent to steal rented

vehicle after specific number of days have elapsed from the

end of the lease term violated due process); Francis v.

Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442

U.S. 510 (1979).

The Court’s amicus respectfully submits that the

Commonwealth’s cross buming statute contravenes due

process by depriving Respondents of the benefit of a jury of

peers and proof beyond a reasonable doubt of criminal intent

that is subject to the severest possible societal stigma and

disapprobation. Where the state requires a criminal defendant

to negate the existence of culpable mens rea, the determination

that the defendant committed a reprehensible “hate crime”

absolving the defendant of animus. The Supreme Court has

found sentencing schemes violative of due process where they

‘impose an undue burden upon a defendant to negate a state of

mind to avoid culpability. See, e.g., Mullaney v. Wilbur, 421

U.S. 684 (1975) (state could not impose burden on murder

defendant to establish that he acted in the “heat of passion on

sudden provocation” to reduce homicide to manslaughter);

Leary v. United States, 395 U.S. 6 (1969) (due process

prohibited penal provision authorizing jury to mfer from

defendant’s possession of marijuana that he knew of the illegal

importation). Further, “although intent is typically considered

a fact peculiarly within the knowledge of the defendant, this

does not, as the Court has long recognized, justify shifting the

burden to him.” Mullaney, 421 U.S. at 702; cf. Davis v. United

States, 160 U.S. 469 (1895) (reversing murder conviction

because trial judge instructed jury it was their duty to convict

if the evidence was equally balanced regarding the sanity of the

accused). “[D]ue process demands more exacting standards.”

Mullaney, 421 U.S. at 702, n 31. The higher the degree of

11

stigmatization resulting to the defendant from conviction, the

clearer the jury’s adjudication of culpability must be.

Mullaney, 421 U.S. at 699-700; Winship, 397 U.S. at 363, 364.

Because “the penalty authorized by the law of the locality may

be taken ‘as a gauge of its social and ethical judgments,”

Duncan v. Louisiana, 391 U.S. 145, 160 (1968), quoting

District of Columbia v. Clawans, 300 U.S. 617, 628 (1937),

that societal judgment should be subjected to the highest

evidentiary standard of protection for an accused perpetrator of

a hate crime, such as cross buming, not only to protect the

innocent accused, but to preclude a “rush to judgment” in

circumstances which have the potential to inflame community

sensibilities. For this reason, even apart from the question

whether VA. CODE ANN. § 18.2-423 survives the stringent

demands of strict scrutiny as a content-based restriction on

speech, the statutory presumption of culpable state of mind

contained in the statute violates the right of due process, and

the statute cannot therefore pass constitutional muster.

CONCLUSION

As the Court noted in Texas v. Johnson:

The First Amendment does not guarantee that other

concepts virtually sacred to our Nation as a whole —

such as the principle that discrimination on the basis of

race is odious and destructive — will go unquestioned in

the market-place of ideas. We decline, therefore to

create for the flag an exception to the joust of principles

protected by the First Amendment.

491 U.S. at 418. Just as the First Amendment constrained the

State of Texas from consecrating the meaning of the American

flag by force of criminal law, it constrains the Commonwealth

of Virginia from employing the force of law to sanction the

12

buming cross — and the meaning it stands for — as a desecration

of the ideal of racial equality Americans hold dear.

Respectfully submitted,

John W. Whitehead

Steven H. Aden (Counsel of Record)

THE RUTHERFORD INSTITUTE

112 Whitewood Rd.

Charlottesville, VA 22901

Tel.: (434) 978-3888

September 9, 2002

13