# Amicus Curiae Brief — Virginia v. Black

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 343

## Text

_
.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A16. Public record. Not legal advice.