# Amicus Curiae Brief — Virginia v. Black

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A17

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A17. Public record. Not legal advice.