Amicus Curiae Brief — Virginia v. Black

No. 01-1107 SEP 9 2002

a cure _|

Jn The

Supreme Court of the Anited 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

+

BRIEF OF AMICUS CURIAE

COUNCIL OF CONSERVATIVE CITIZENS

FILED IN SUPPORT OF RESPONDENTS

SJ

EDGAR J. STEELE*

Attorney at Law

1840 Gateway Drive, 2nd Floor

San Mateo, CA 94404

(650) 349-1400

*Counsel of Record

CC CKLE LAW BRIEF PRINTING CO: (800) 225-6964

OR CALL COLLECT (402) 342-2831

‘BEST AVAILABLE COPY!

TABLE OF CONTENTS

Page

I. STATEMENT OF INTEREST OF AMICUS

AIA Nee ee cee STO 1

II. SUMMARY OF ARGUMENT.......................05. 1

I~ ca aidan 3

ee TTI cecal tai nce aria atnalieeen 14

ii

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Free Speech Coalition, 535 U.S. __, 122

S. Ct. 1889, 152 L. Ed. 2d 403 (2002) ................... 2, 11-13

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

FEB CBBBA) ..cccesecccesevsscesssesesssseusnsnssensmunnnnianaaeneee 14

Boos v. Barry, 485 U.S. 312 (1988)............ccccccssssssecceccreseees 4

Brandenburg v. Ohio, 395 U.S. 444 (1969).................... 2,13

Broadrick v. Oklahoma, 413 U.S. 601 (1978)..................08 5

Dombrowski v. Pfister, 380 U.S. 479 (1965) ....... cee eeeeeeees 8

Frisby v. Schultz, 487 U.S. 474 (1988)... ccceeceeeeeeseeeees 9

N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886

(TGR) ...ccccecccccoeseconceccscesesenuetensnsnnnnnansusnnsiaaninannaaannnnEEE 5

New York Times Company v. Sullivan, 376 U.S.

254, 84S. Ct. 710, 11 L. Ed. 2d 686 (1964)..................... 7

Nicely v. Commonwealth, 25 Va. App. 579, 490 S. E.

98 BBL (12GB 7) necececoccessessescrsensssesenaa 5

Stanley v. Georgia, 394 U. S. 557, 89 S. Ct. 1243, 22

Fe 8 Fle a 12

TABLE OF AUTHORITIES - Continued

Page

Texas v. Johnson, 491 U.S. 397 (1989) .........0c0..0- 3, 4, 9, 10

Thornhill v. Alabama, 310 U.S. 88 (1940)........cccccccceccceceee. 5

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

STATUTES

Nee csesceneounesecneees 6

Child Pornography Prevention Act of 1996, 18

i cescomecnnononsnans 11

2, 3, 5, 14

1

I. STATEMENT OF INTEREST OF AMICUS

CURIAE.’

The Council of Conservative Citizens is interested in

this case because it ardently supports the right of freedom

of expression of all of the citizens of the United States and

of all persons who lawfully reside or sojourn within the

boundaries of this nation. The particular emphasis of the

Council is the protection of the expressive rights of the

millions of Americans of British and European descent

who hold to conservative views on matters of racial and

ethnic relations. For this reason it submits this brief in

support of the position of the Respondents Barry Elton

Black, Richard J. Elliot and Jonathan O’Mara.

II. SUMMARY OF ARGUMENT.

While the burning cross has undoubtedly been utilized

in the perpetration of criminal acts, it also has significance

as a means of communication of political thoughts and

sentiments. Because it is a symbolic expression of political

speech, government cannot criminalize cross burning on

account of the fact that various persons and groups who

may have the occasion to view such conduct may become

angry or fearful.

* Pursuant to Rule 37(6) of the Court, no party to this action has

written any portion of this brief. The Council of Conservative Citizens

is the group solely responsible financially fo: the preparation of the

document and not any party to this action. Sam G. Dickson, a member

of the Council’s Board of Directors, is the financial contributor to the

process of preparing and submitting this brief.

2

The statute at issue, Va. Code § 18.2-423, is overbroad

for the reason that it punishes someone who lights a cross

solely with the intent of intimidating a person or persons.

It is expansive because the term “intimidation” can simply

connote symbolic expression which causes certain persons

and groups to feel a sense of fear and anger merely on

account of having viewed such a spectacle. Furthermore, it

purports to punish someone who burns a cross on the basis

that the defendant intended to intimidate another person

or persons without requiring proof that such conduct did

in fact intimidete someone.

Finally, the statute allows the trier of fact in any

prosecution under this enactment to infer an intent to

intimidate merely from the fact of burning a cross. For

that reason it empowers the Commonwealth of Virginia to

arrest and prosecute anyone who burns a cross in any

circumstances regardless of the context in which such

conduct took place.

The overbroad nature of this statute required it to be

struck down regardless of the conduct of the Respondents

because of the danger that this law poses to the exercise of

First Amendments rights.

The Court must affirm the decision of the Supreme

Court of Virginia if the Court is to continue to adhere to

the “incitement to imminent lawless action” test for

determining the legality of speech, particularly political

speech, explicated in Brandenburg v. Ohio, 395 U.S. 444

(1969) and most recently reiterated and reaffirmed in

Ashcroft v. Free Speech Coalition, 535 U.S. __, 122

S. Ct. 1389, 152 L. Ed. 2d 403 (2002).

The burning of a cross cannot be punished as so-called

“hate speech” because of what many persons believe to be

3

the tendency of such expression to either cause or facili-

tate the commission of violent and terroristic acts against

racial and religious minorities and other vulnerable

groups. Speech and expression cannot be prohibited on the

grounds that it may encourage violent conduct at some

indefinite and undetermined future time. This precept

must be as applicable to the putative consequences of

provocative and unpopular political speech and expression

as it is to the alleged deleterious social effects of depictions

and portrayals of explicit sexual conduct, even those simu-

lating such conduct on the part of minors.

Ill. ARGUMENT.

Despite the disdain and the revulsion that most

people feel for such a sight, the burning cross is an expres-

sion of political thought and sentiment —- typically the

doctrine of white separatism. It is for that reason a mode

of expression protected in its most elemental form by the

First Amendment. “The First Amendment does not guar-

antee 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 not go un-

questioned in the marketplace of ideas.” Texas v. John-

son, 491 U.S. 397, 418 (1989).

When the Virginia statute in question is examined,

the overbroad and inexact nature of this enactment

becomes self-evident. It declares 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, or highway or

other public place.” Va. Code § 18.2-423. The statute does

not further define what manner of conduct, other than the

4

burning of the cross itself, shall constitute the act of

“intimidating”. Nor have the Virginia courts adopted a

narrowing construction of this term which explicitly states

the proposition that the expression of political opinions is

not embraced within the concept of intimidation insofar as

the interpretation of this statute is concerned.

The lighting of a cross in an area where it is plainly

visible to large numbers of minority group members is

surely in one sense “intimidating”. The person or persons

who have undertaken such a mode of expression are

thereby stating in the most unequivocal means possible

their unyielding opposition to what they believe is a

minority-liberal program of affirmative action in education

and employment, “set asides” in the granting of govern-

ment contracts, less restrictive immigration laws and

other forms of government-sponsored empowerment of

non-white ethnic and racial groups. A large number of non-

whites — in all probability a decided majority of them —

who view such a demonstration would for that reason be

likely to feel a sense of fear and anger upon observing it

and consequently they would undoubtedly describe them-

selves as having been “intimidated” because the cross

burning transpired within their range of perception.

The principle of First Amendment jurisprudence is

nevertheless axiomatic that speech and equivalent forms

of expression can be neither prohibited nor punished

because those persons who hear it or see it may be of-

fended or otherwise detrimentally effected emotionally by

it. Texas v. Johnson, supra at 407-410 (1989); Boos v.

Barry, 485 U.S. 312 (1988). Consequently, the fact that a

manner of speech or expression may have a tendency to

coerce or intimidate some listeners is not a basis for

holding that it falls outside the ambit of First Amendment

5

protection. In Thornhill v. Alabama, 310 U.S. 88 (1940)

this Court held that peaceful picketing was entitled to

constitutional protection even though the purpose of the

picketing was to advise customers and prospective cus-

tomers of an adversarial relationship existing between the

employer and its employees and to thereby induce such

customers not to patronize the employer. The constitu-

tional protection afforded to such ostensibly coercive and

intimidating speech was reaffirmed in N.AAC.P. v.

Claiborne Hardware Co., 458 U.S. 886, 908-910 (1982)

when this Court held that the N.A.A.C.P’s publication of

the names of Black people who violated that organization’s

boycott of Port Gibson, Mississippi merchants could not

subject that group to a successful civil lawsuit. The Court

so ruled despite the fact that there was no doubt that this

particular speech had had a substantial intimidating effect

on those Blacks who did not desire to adhere to the

N.A.A.C.P. strategy in the Port Gibson controversy.

The proscription contained in Va. Code § 18.2-423

must therefore be said to sweep within its circumference a

great deal of conduct that would otherwise be fully protected

expression. The statute in its entirety for that reason must

be held to be overbroad and therefore unconstitutional.

Broadrick v. Oklahoma, 413 U.S. 601 (1973).

This conclusion is buttressed by consideration of the

second paragraph of the statute which states that “Any

such burning of a cross shall be prima facie evidence of an

intent to intimidate a person or group of persons.” In

Virginia “prima facie evidence” means evidence sufficient

to raise a presumption of fact or establish the fact in

question unless rebutted. Nicely v. Commonwealth, 25

Va. App. 579, 490 S. E. 2d 281, 282 (1997).

6

Allowing the state to establish a prima facie case

against a defendant charged with a violation of the stat-

ute, sufficient to get the case to a jury, merely on the basis

of that person’s conduct in burning a cross in a public

place or on the property of another without the introduc-

tion of any actual evidence of his or her intent in doing so

directly contravenes this Court’s holding in Watts v.

United States, 394 U. S. 705 (1969). While at a political

gathering assembled to protest the Vietnam War the

defendant Watts said that “If they (referring to the United

States Army) ever make me carry a rifle the first man I

want to get in my sights is L.B.J. (speaking of then Presi-

dent Lyndon Johnson)”. 394 U.S. at 706. On the basis of

that statement Watts was prosecuted and convicted of

violating 18 U.S.C. § 871(a), the federal law that makes it

a crime for any person to threaten the life of the President

of the United States.

In reviewing Mr. Watts’ conviction this Court upheld

the constitutionality of 18 U.S.C. § 871(a) but it further

ruled that Mr. Watts could not be prosecuted for that

crime in the circumstances in which he made the offending

utteranc..

... the statute initially requires the Gov-

ernment to prove a true threat. We do not

believe that the kind of political hyperbole

indulged in by petitioner fits within that

statutory term. For we must interpret the

language Congress chose “against the

background of a profound national com-

mitment to the principle that debate on

public issues should be uninhibited, robust,

and wide-open, and that it may well include

vehement, caustic, and sometimes unpleas-

antly sharp attacks on government and

7

public officials.” New York Times Company

v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710,

721, 11 L. Ed. 2d 686 (1964). The language of

the political arena, like the language used

in labor disputes, see Linn v. United Plant

Guard Workers of America, 383 U.S. 53, 58,

86 S. Ct. 657, 15 L. Ed. 2d 582 (1966) is often

vituperative, abusive, and inexact. We agree

with petitioner that his only offense here

was “a kind of very crude offensive method

of stating a political opposition to the

President.” Taken in context, and regarding

the expressly conditional nature of the

statement and the reaction of the listeners,

we do not see how it could be interpreted

otherwise.

394 U.S. 708.

In contrast, the Virginia statute would allow law

enforcement authorities to arrest anyone charged with

burning a cross in a public area, which could include such

a defendant’s own property. Such an unfortunate person

could further be indicted and tried on such meager evi-

dence. And according to this statutory scheme, the feloni-

ous intent can be implied from the singular act of the

defendant in burning the cross.

Thus under the terms of this statute a defendant can

be arrested, indicted and tried solely for lighting a cross

regardless of the circumstances and context within which

this expressive conduct took place. The mere possibility

that a person could even be threatened with prosecution

pursuant to this seriously flawed enactment mandated

that it be struck down. Such judicial action was required

notwithstanding the fact that not a few persons charged

with violating the statute had, in fact, been engaged in

8

morally culpable conduct. For that reason alone the Virginia

Supreme Court was amply justified in declaring this statute

unconstitutional, particularly in light of its all-encompassing

presumption of intent to intimidate arising merely from the

exercise of this form of symbolic expression.

A criminal prosecution under a statute

regulating expression usually involves im-

ponderables and contingencies that them-

selves may inhibit the full exercise of First

Amendment freedoms. See, e.g., Smith v.

People of the State of California, 361 U.S.

147, 80 S. Ct. 215, 4 L. Ed. 2d 205. When the

statutes also have an overbroad sweep, as

here alleged, the hazard of loss or substan-

tial impairment of those precious rights

may be critical. For in such cases, the stat-

utes lend themselves too readily to denial

of those rights. The assumption that the

defense of a criminal prosecution will gen-

erally assure ample vindication of con- stitu-

tional rights is unfounded in such cases.

* * *”

. we have not thought that the improb-

ability of successful prosecution makes the

case different. The chilling effect upon the

exercise of the First Amendment rights may

derive from the fact of prosecution, unaf-

fected by the prospects of its success or

failure.

Dombrowski v. Pfister, 380 U.S. 479, 486, 487 (1965).

Despite the palpable unconstitutionality of this

statute, the Council does not dispute the proposition that

Virginia or any other jurisdiction in the United States may

properly pass an act which makes it illegal for anyone to

os

9

burn a cross on the property of another without that

person’s permission or to do so in close proximity to an-

other person’s home with the further intention of intimi-

dating or terrorizing that person. The Council concedes

the validity of such legislation because of its high regard

for property rights and on account of the obvious duty of

government to protect the tranquility and the sanctity of

the homes of all of its citizens. See Frisby v. Schultz, 487

U.S. 474 (1988) (government can prohibit continuous

picketing in front of a person’s home).

In its decision striking down a statute of the state of

Texas prohibiting the burning of the flag of the United

States, the Court held that it was impelled to do so be-

cause a contrary opinion would effectively overrule much

of its modern jurisprudence delineating the scope and

protection of the First Amendment, particularly that

concerning political speech and expression.

Thus, we have not permitted the gov-

ernment to assume that every expression of

a provocative idea will incite a riot, but

have instead required careful consideration

of the actual circumstances surrounding

such expression, asking whether the expres-

sion “is directed to inciting or producing

imminent lawless action and is likely to

incite such action.” Brandenburg v. Ohio,

395 U. S. 444, 447, 89 S.Ct. 1827, 1829, 23

L. Ed. 2d. 430 (1969) (reviewing circumstances

surrounding rally and speeches by Ku Klux

Klan). To accept Texas’ argument that it

need only demonstrate “the potential for a

breach of the peace”, Brief for Petitioner

37, and that every flag burning necessarily

10

possesses that potential would be to evis-

cerate our holding in Brandenburg. This we

decline to do.

Texas v. Johnson, supra at 409 (1989).

Any careful weighing of the arguments both for and

against the constitutionally of this Virginia statute must

inexorably lead to the conclusion that this Court cannot

reverse the decision of the Supreme Court of Virginia and

still adhere to the Brandenburg formula, as upheld and

reaffirmed in Texas v. Johnson. Intellectual integrity and

the institutional necessity of maintaining a coherent body

of First Amendment jurisprudence demands affirmance of

the opinion of the lower court for that reason alone.

The Council anticipates that the most powerful

arguments in support of the position of the petitioner in

urging reversal will be the emotive ones. If they are not

expressly set forth by the Commonwealth and the various

amici who have submitted briefs in support of its position,

they will certainly be a discernible undercurrent which

will run through virtually all of the arguments advanced

by that side of this controversy. The essence of that argu-

ment is this:

In an increasingly diverse and plural-

istic America we can neither tolerate nor

indulge the kind of hate-laden rhetoric and

expression represented by the burning of a

cross and by the open display of other such

symbols. The corrosive and destructive

ideas represented by these symbols do have

palpable, real-life consequences. These con-

sequences are the perpetration of hate

crimes such as took place in Jasper, Texas

several years ago - the James Byrd truck

11

dragging case - and more generally the op-

pression and persecution of racial and eth-

nic minorities and other vulnerable groups

such as gay people. Indeed, the most trau-

matic and horrific event of modern times -

the Holocaust - was the end result of allow-

ing in the name of “free speech” such perni-

cious discourse to permeate the infected

societies out of which that terrible event

arose.

The Council will not respond to this argument because

this Court, speaking through Justice Kennedy, has already

done so in terms that are directly applicable to this case

and which should clearly dictate its outcome. In Ashcroft

v. Free Speech Coalition, 535 U.S. __, 122 S. Ct. 1389,

152 L. Ed. 2d 403 (2002), the Court grappled with the

constitutionality of certain provisions of the Child Pornog-

raphy Prevention Act of 1996, 18 U.S.C. § 2251 et seq.,

which, among other things, in § 2256(8)B) banned any

visual depiction that “is, or appears to be, of a minor

engaged in sexually explicit conduct”. The target of that

provision is what has come to be known as “virtual child

pornography” — images that appear to depict minors which

are produced by means other than the use of real children,

as, for example, the production of computer-generated

images and images of adults that have been electronically

altered to appear to be minors.

One of the most powerful and forcefully advanced

arguments of the proponents of the constitutionality of

this provision, among whom were numbered the United

States government speaking through its Solicitor General,

was that such images had to be placed beyond the pale of

First Amendment protection because the widespread

dissemination of such materials to persons who have

12

sexual inclinations and attractions toward children would

invariably encourage them to act on those impulses and to

consequently molest and victimize children as a means of

satiating their desires. The proponents of censorship in

this very sensitive area of human sexuality understanda-

bly and plausibly argued that the fantasies of such persons

would necessarily be fed by the widespread proliferation of

such depictions if they were not criminalized and sup-

pressed.

In speaking for the majority of this Court which held

this and similar provisions of the act to be unconstitu-

tional as violative of the First Amendment, Justice Ken-

nedy expressly and emphatically rejected this “future

harm” argument.

The Government submits further that

virtual child pornography whets the appe-

tites of pedophiles and encourages them to

engage in illegal conduct. This rationale

cannot sustain the provision in question.

The mere tendency of speech to encourage

unlawful acts is not a sufficient reason for

banning it. The government cannot consti-

tutionally premise legislation on the desir-

ability of controlling a person’s private

thoughts. Stanley v. Georgia, 394 U. S. 557,

566, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969).

First Amendment freedoms are most in

danger when the government seeks to con-

trol thought or to justify its laws for that

impermissible end. The right to think is the

beginning of freedom, and speech must be

protected from the government because

speech is the beginning of thought.

13

To preserve these freedoms, and to pro-

tect speech for its own sake, the Court’s

First Amendment cases draw vital distinc-

tions between words and deeds, between

ideas and conduct. See Kingsley Interna-

tional Pictures Corp., 360 U. S., at 689, 79

S. Ct. 1362; see also Bartnickhi v. Vopper, 532

U. S. 514, 529, 121 S. Ct. 1753, 149 L. Ed. 2d

787 (2001) (“The normal method of deter-

ring unlawful conduct is to impose an ap-

propriate punishment on the person who

engages in it.”). The government may not

prohibit speech because it increases the

chance an unlawful act will be committed

“at some indefinite future time”. Hess v.

Indiana, 414 U. S. 105, 108, 94 S. Ct. 326, 38

L. Ed. 2d 303 (1973) (per curiam). The gov-

ernment may suppress speech for advocat-

ing the use of force or a violation of law

only if “such advocacy is directed to incit-

ing or producing imminent lawless action

and is likely to incite or produce such ac-

tion”. Brandenburg v. Ohio, 395 U.S. 444,

447, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969)

(per curiam). There is here no attempt,

incitement, solicitation or conspiracy. The

government has shown no more than a re-

mote connection between speech that might

encourage thoughts or impulses and any

resulting child abuse. Without a signifi-

cantly stronger, more direct connection, the

government may not prohibit speech on the

ground that it may encourage pedophiles to

engage in illegal conduct.

122 S. Ct. 1403.

14

The necessity of maintaining a coherent corpus of

First Amendment law dictates that this Court cannot have

varying standards for determining whether or not so-

called hate speech can be banned because of its putatively

harmful effects on society in contradistinction to those

utilized in deciding whether or not sexually explicit

materials can be proscribed because of their possible use

in victimizing children. Elementary fairness dictates that

all of the purveyors of speech and expression which is

widely believed to be socially harmful in some respects

must be “fed out of the same spoon” insofar as the judicial

determination of the purview and contours of First

Amendment protection of their views is concerned.

IV. CONCLUSION.

Clearly, the Supreme Court of Virginia made the

correct decision in holding Va. Code § 18.2-423 to be

unconstitutional and therefore unenforceable. A contrary

decision would have been wholly inconsistent with the

entire body of this Court’s First Amendment jurisprudence

as explicated up to April 16, 2002 when Ashcroft v. Free

Speech Coalition was handed down. The decision of the

Supreme Court of Virginia in Black v. Commonwealth,

262 Va. 764, 553 S. E. 2d 738 (2001) should therefore be

affirmed by this Court.

This 9th day of September 2002.

EDGAR J. STEELE

Attorney at Law

1840 Gateway Drive, 2nd Floor

San Mateo, CA 94404

(650) 349-1400