Amicus Curiae Brief — Virginia v. Black

NO. Vi-L10/

SFE bs 2002

In the SEP 9

SUPREME COURT OF THE UNITED sect

October Term, 2002

COMMONWEALTH OF VIRGINIA

PETITIONER

A

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

THE THOMAS JEFFERSON CENTER FOR

THE PROTECTION OF FREE EXPRESSION

In support of the Respondent

Robert M. O’Neil J. Joshua Wheeler

Counsel of Record The Thomas Jefferson Center for

The Thomas Jefferson Center for _ the Protection of Free Expression

the Protection of Free Expression 400 Peter Jefferson Place

400 Peter Jefferson Place Charlottesville, VA 22911

Charlottesville, VA 22911 434-295-4784

434-295-4784

TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES ooo eccccccsessessnesseeees il

STATEMENT OF INTEREST OF AMICUS CURIAE ]

NATURE OF THE CASE AND STATEMENT OF FACTS... l

i FE 3

I. CRIMINAL SANCTIONS IMPOSED ON EXPRESSIVE

ACTIVITY MUST INVOKE A RECOGNIZED EXCEPTION

TO THE FIRST AMENDMENT’S PROTECTIONS 4

B. The Virginia Supreme Court correctly ruled that Virginia

Code § 18.2-423 ungonstitutionally discriminates on the

LAA 7

C._ The dictates of the First Amendment cannot be avoided by

(“TT 13

D. The Commonwealth is not without constitutionally valid

means by which to achieve its laudable goals... 14

I. THE SWEEP OF VIRGINIA CODE § _18.2-423’S

PROHIBITION REACHES EXPRESSION BEYOND “TRUE

THREATS” AND IS THEREFORE CONSTITUTIONALLY

ia cidelsciisinindoncannnlbose 16

TABLE OF CASES AND AUTHORITIES

Cases: Page

Black v. Commonwealth, 262 Va. 764 (2001).....2, 4, 10, 11, 12, 16

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753

(BDDG)..........cesscccessessceassssssaseessiaisissmmmiiam 12

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ooo 8

City of Ladue v. Gilleo, 512 U.S. 43 (1994) oo eccsssessesssssnesseen 19

Cohen v. California, 403 U.S. 15 (1971)... ccccsesscssseessssssneeesssnees 13

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) oo... 19

Forsyth County v. Nationalist Movement, 50S U.S. 123 (1992).....7

NAACP v. Button, 371 U.S. 415 (1963)... cccsesecsssessssseeenssssesessees 18

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)... 18

People v. Steven S., 31. Cal. Rptr. 2d 644 (Cal. App. 1 Dist. 1994)

ssscesccusesssncsoesttentanssiasensssetsetnsseneiniiiman 19

RA.V. v. City of St. Paul, 505 U.S. 377 (1992) oon passim

Schacht v. United States, 398 U.S. 58 (1970)...0......cssssssssseeessssnnesees 4

Spence v.Washington, 418 U.S. 405 (1975)... .sscssssessecseenssenssne 19

State v. Talley, 858 P.2d 217 (Wash. 1993)... ccccssecccseeseeeen 19

State v. T.B.D., 656 So. 24 479 (Fla. 1995) ooo ccccsesssesensennee 19

Sutton v. Commonwealth, 228 Va. 654 (1985). 16

Texas v. Johnson, 491 U.S. 397 (1989) ooo ccccssesssseeenssnnenensen 4

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

ee 4,17

United States v. Eichman, 496 U.S.310(1990).. 10, 11

United States v. Hayward, 6 F.3d 1241 (7" Cir. 1993). 15

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

PPP Pee eee ee eee

Constitution, statutes, regulations and rules:

U.S. Const

EE passim

Virginia Code § 18.247 vsocununvunnsstneneees 1s

Virginia Code § 182-60 ocscoononsesonentessneee 1s

Virginia Code § 18.2-61 oo vvnusnsumunusunenee 1s

Virginia Code § 18.2423. occwusssumuunnnnnneoe passim

Virginia Code § 18.2-460 oo cvssmuuununnunesneen 1s

Virginia Code § 24.2-1000 oo ocvemuuunnnnneessen aS

i sisiisiinscinisitbinsiniainiistindaibiolaaiiacaaiiaa 15

St. Paul, Minn., Legs. Code § 292.02 ooo cccssesssseeessnseeecssneeses 8

Other:

Brief of Petitioner, Commonwealth of Virginia... passim

Norman Dorsen, Joel Gora, Free Speech, Property, and the Burger

Court: Old Values, New Balances, Supreme Court Review, 195

(1982). 19

Poe ee eU ECE O CCC ORCC O CCU U EEUU UCU COCO Pee eee eee eee ee eee eee eee eee

iv

STATEMENT OF INTEREST OF AMICUS CURIAE

The Thomas Jefferson Center for the Protection of Free

Expression is a nonprofit, nonpartisan organization located in

Charlottesville, Virginia. Founded in 1990, the Center has as its

sole mission the protection of free speech and press against threats

in many forms. The Center has participated actively in the

litigation of First Amendment issues, and has filed amicus curiae

briefs in the United States Supreme Court, the Federal Courts of

Appeals, and in numerous state courts. In the instant matter as it

pertains to Respondent Barry Black, the Center filed briefs as

amicus curiae in the Circuit Court of Carroll County, the Virginia

Court ot Appeals, and the Virginia Supreme Court. Consent to file

in this Court was granted by all the parties.

NATURE OF THE CASE AND STATEMENT OF FACTS

This matter involves a consolidated appeal arising out of two

separate incidents and three convictions of violating Virginia Code

§ 18.2-423, which reads:

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, a highway or other public place. Any person who

shall violate any provision of this section shall be guilty of

a Class 6 felony. Any such burning of a cross shall be

prima facie evidence of an intent to intimidate a person or

group of persons.

The first incident took place on May 2, 1998 in Virginia Beach,

Virginia. Respondents Richard J. Elliott and Jonathan O’Mara

attended a party at the home of David Targee. While at the party,

Elliott told several people that his neighbor, James J. Jubilee, an

African-American, had complained about the discharge of firearms

in Elliott’s backyard. In response, Elliott suggested they burn a

cross in Jubilee’s yard. Elliott, O’Mara, and Targee constructed a

crude wooden cross in Targee’s garage, transported it to Jubilee’s

yard, placed it in the ground, and lit the cross.

The second incident occurred on August 22, 1998 in Cana,

Virginia. Respondent Barry Elton Black led a Ku Klux Kian rally

on private property. The rally was conducted with the permission

of the landowner, who was present during the rally. In the course

of the rally, Klan members set fire to a cross, approximately 25 to

30 feet in height. The burning cross was observable from parcels

of land adjoining that on which the rally took place. While the

cross burned, the hymn Amazing Grace played over a loudspeaker

system. In a jury trial in the Circuit Court of Carroll County,

Respondent Black was convicted of violating Virginia Code §

18.2-423.

In a consolidated appeal, the Virginia Supreme Court reversed

the convictions of O’Mara, Elliott, and Black, finding that Virginia

Code § 18.2-423’s targeting of cross burning was a viewpoint-

based restriction in violation of the First Amendment. Black v.

Commonwealth, 262 Va. 764 (2001).

2

SUMMARY OF ARGUMENT

This case presents a stark contrast between two values of the

highest order within our Constitutional system. On the one hand,

the Commonwealth admirably seeks to regulate hateful actions and

expression that threatens its citizens. Yet whatever sanctions

government may impose for this purpose must satisfy the rigorous

standards established by this Court for the protection of free

expression under the First Amendment. The policies reflected in

the statute under challenge in this case are wholly consonant with

the laudable goals of protecting citizens from fear and intimidation.

Yet, as the Virginia Supreme Court ruled, the means chosen by the

Commonwealth to serve that end restricts expression protected by

the First Amendment. For that reason, they may not be used even

for the worthiest of purposes.

Moreover, states possess constitutionally acceptable means for

achieving these goals. The activity charged as criminal in this case

is indisputably expressive, however hateful and abhorrent it may be

to thoughtful citizens. Indeed, were the burning of a cross not

highly communicative, it is doubtful that states would seek so

consistently to punish the act. Because cross burning is expressive,

and conveys a distinctive message to those who view it, a statute

that punishes those who burn crosses must be viewpoint-neutral.

The statute must also be precise enough to afford adequate

guidance to persons who are potentially subject to its provisions.

The scope of such a law must not be so broad as to reach, and

3

potentially subject to legal sanctions, any substantial amount of |

expression that the First Amendment protects. The challenged

statute fails appreciably to meet each of these tests. it is for these

reasons that amicus urges affirmance of the judgment of the court

below.

I. CRIMINAL SANCTIONS IMPOSED ON EXPRESSIVE

ACTIVITY MUST INVOKE A _ RECOGNIZED

EXCEPTION TO THE FIRST AMENDMENT’S

PROTECTIONS.

As the court below recognized, the burning of a cross is

undeniably expressive activity, “however pernicious the expression

may be.” Black, 262 Va at 771. It is as fully expressive as the

actions which this Court found to be communicative in Jinker v.

Des Moines Independent School Dist., 393 U.S. 503 (1969)

(wearing of armbands) and Texas v. Johnson, 491 U.S. 397 (1989)

(burning the United States flag). In such cases, and many others

involving nonverbal expression, this Court has insisted that such

expression may be punished only under conditions that fully satisfy

the safeguards of the First Amendment. Most clearly, a particular

message may not be made the subject of criminal sanctions because

government finds objectionable its content or the viewpoint it

expresses. While this principle emerged most clearly in R.A.V. v.

City of St. Paul, 505 U.S. 377 (1992), its roots trace to much earlier

decisions, e.g., Schacht v. United States, 398 U.S. 58, 63

(1970\“[A law] which leaves Aniericans free to praise the war in

Vietnam but can send persons...to prison for opposing, cannot

4

survive in a country which has the First Amendment.”) Even

where, as in RAV. itself, a category of expression may be

presumptively unprotected, government may not selectively favor

or disfavor particular messages. The only question posed by the

present case, and one which the parties centrally dispute, is

whether or not the challenged statute selectively disfavors a

particular message.

._ Virgini 8.2-423 i .

on speech.

Perhaps because the Commonwealth recognizes the presumed

unconstitutionality of content-based restrictions on speech, a

substantial portion of petitioner’s brief argues that Virginia Code §

18.2-423 is content-neutral because its sanctions apply to all

persons, regardless of their motives, who burn crosses with an

intent to intimidate. See, e.g., Brief .* Petitioner, Commonwealth

of Virginia, at 9. But neutral or uniform application of a law, in

terms of the persons who are subject to its sanctions, in no way

removes or avoids a charge of selectivity in the content of its

provisions, of the type that the court below found to be a fatal flaw

in the statute now under review. In addition, the Commonwealth’s

argument reflects a basic misperception of First Amendment

jurisprudence because it confuses restrictions that are content-

based with those that are directed against a particular viewpoint.

While all viewpoint restrictions are content-based, not all content-

based restrictions necessarily involve viewpoint discrimination. A

5

content-based regulation of speech is one that is directed at the

subject matter - the content - of the expression. A content-based

Statute is presumptively invalid unless it disfavors, or singles out

for special treatment, an entire category of speech that traditionally

has received less than full First Amendment pyrotection. “Content-

based restrictions are presumptively invalid. From 1791 to the

present, however, our society, like other free but civilized societies,

has permitted restrictions upon the content of speech in a few

limited areas...” RA.V. v. City of St. Paul, 505 U.S. 377, 382

(1992) (citations omitted). The fact that a statute criminalizes

obscenity, for example, does not mean that the statute is content-

neutral. Rather, an obscenity statute is a ban upon a category of

expression to which, despite its content-based focus, the

presumption of constitutional invalidity does not apply.

By recognizing that “the focus of the Virginia statute is

intimidation,” Petitioner's Brief at 9, the Commonwealth

effectively concedes that the statute is directed at the content of the

expression, specifically at threats. The inescapable conclusion that

Virginia Code § 18.2-423 is content-based gains added force from

the fact that the very harm that the statute seeks to prevent is the

probable reaction or response of persons who witness the highly

evocative burning of a cross. Such a concern, however laudable it

may be as a matter of state policy or legislative action, hardly

serves to remove the content-selectivity of a statute that reflects

such a focus. As this Court has consistently cautioned, “Listener’s

6

—_———

—e

reaction to speech is not a content-neutral basis for regulation.”

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

(1992).

The Commonwealth correctly argues, however, that even if

Virginia Code § 18.2-423 is content-based, that fact does not

entirely dispose of First Amendment analysis. If, indeed, such a

law could be shown to target specifically an entire category of

unprotected expression, it might nonetheless survive scrutiny.

Threats, for example, comprise a category of proscribable speech.

See, e.g., Watts v.United States, 394 U.S. 705 (1969). A statutory

ban on all threats — at least all “true threats” within the meaning of

the Watts decision — would presumably pass constitutional muster.

Accordingly, the proper inquiry here is whether Virginia may

single out, within the larger category of all threatening expression,

only those threats that involve the burning of a cross. The court

below concluded that such a specific focus — admittedly a form of

expression with great potential to instill fear in viewers — rendered

the law constitutionally infirm.

B. Tne Virginia Supreme Court correctly ruled that

Virginia Code § 18.2-423 _unconstitutionally

discriminates on the basis of viewpoint. q

The Virginia Supreme Court correctly ruled that Virginia Code

§ 18.2-423 is “analytically indistinguishable” from the ordinance

that this Court invalidated in RA.V. At issue in R.A.V. was a St.

Paul, Minnesota ordinance that provided:

7

Whoever places on public or private property a symbol,

object, appellation, characterization or graffiti, including,

but not limited to, a burning cross or Nazi swastika, which

one knows or has reasonable grounds to know arouses

anger, alarm, or resentment in others on the basis of race,

color, creed, religion or gender commits disorderly conduct

and shall be guilty of a misdemeanor.

505 U.S. at 380 (quoting St. Paul, “4inn., Legs. Code § 292.02

(1990)).

Although this Court felt bound by the Minnesota Supreme

Court’s “authoritative statement that the ordinance reaches only

those expressions that constitute ‘fighting words’ within the

meaning of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942),”

it nevertheless found the statute facially unconstitutional because

“jt prohibits otherwise permitted speech solely on the basis of the

subject the speech addresses.” RA.V., 505 U.S. at 381. Because

“{iJn its practical operation...the ordinance goes even beyond mere

content discrimination, to actual viewpoint discrimination,”

Minnesota’s claim that the statute criminalized only “fighting

words” did not save the law under the First Amendment. /d. at 391.

In its brief before this Court, the Commonwealth presses the

validity of a law that is, in several respects, strikingly similar in

structure and effect to the St. Paul ordinance. First, Virginia Code

§ 18.2-423 specifically targets a highly evocative symbol that

reflects virulent notions of racial supremacy. See id at 392.

Indeed, the potential harm to First Amendment freedoms is even

A A

~~ a

greater in this case than it was under the St. Paul ordinance,

because Virginia Code § 18.2-423 makes it unnecessary for the

Commonwealth to initially establish any element of mens rea, and

instead treats the expressive activity itself as prima facie evidence

of an intent to intimidate.

Second, in this case as in R.A.V., the fact that a criminal statute

targets expression falling within-a-catégory of less than fully

protected speech in no way avoids First Amendment scrutiny. The

Commonwealth’s claim that the targeted expression entails

“threats” does not differ in substance from the comparable claim in

RA.V. that the conviction was valid because the focus was

“fighting words.” The rationale of R.A.V. — that government may

not disfavor certain viewpoints even when they are conveyed by

less than fully protected means — applies with equal force here:

“The point of the First Amendment is that majority preferences

must be expressed in some fashion other than silencing speech on

the basis of its content.” Jd. at 392.

Nor, as the Commonwealth argues, does the fact that the

ordinance in R.A.V. prohibited cross burning carried out "on the

basis of race, color, creed, religion or gender," whereas Virginia

Code § 18.2-423 contains no such explicit viewpoint-based

provision, serve to distinguish the two cases for First Amendment

purposes. To reach that conclusion would require this Court to

review Virginia Code § 18.2-423 wholly out of its context, taking

no note of the real world rationale for such a statute. Any notion

9

that the Virginia statute served a purpose markedly different from

the St. Paul ordinance is in fact belied by the Virginia Supreme

Court’s finding that the historical context of cross burning makes it

“clear that the Commonwealth’s interest in enacting the cross

burning statute is related to the suppression of free expression.”

Black, 262 Va. at 775. Further, such a non-contextual approach to

analyzing Virginia Code § 18.2-423 would also be wholly at

variance with this Court’s analysis in United States v. Eichman,

496 U.S. 310 (1990), which held that First Amendment scrutiny is

not avoided because the terms of a statute may not expressly target

only a single message or viewpoint. Such exacting review is

appropriate where, as here, analysis of the law and its impact reveal

beyond doubt that “the Government’s asserted interest is related to

the suppression of free expression.” /d. at 315 (internal quotation

marks omitted).

Nonetheless, the Commonwealth insists that, in contrast the

federal statute invalidated in Eichman, the target of Virginia Code

§ 18.2-423 is not the message or viewpoint conveyed by the

burning of a particular object, but is instead the threat potentially

created, or the fear potentially instilled, by such an act. “The

Virginia Gene.»! Assembly long ago enacted a ban on cross

burning, but only when accompanied by an attempt to intimidate

someone.” Petitioner's Brief at 9. “Where there is no intent to

intimidate, the statute does not apply.” Jd at 18. “[A]n innocent

cross burner—i.e., one who burns a cross without an intent to

10

intimidate...is not barred by the statute." Jd at 43 (emphasis in

original).

The Commonwealth seeks to avoid the impact of Eichman

upon comparable viewpoint discrimination grounds simply by

arguing that individuals who wish to use the symbol of a burning

cross to express their views are free to do so as long as they do it

without the intent to threaten another person.’ The Virginia

Supreme Court correctly rejected this theory, recognizing that the

real target of Virginia Code § 18.2-423 is all cross burnings and the

racist values they have come to symbolize. As the court below

observed, “[w]hen asked how the Commonwealth could justify the

inference of intimidation provided in the last sentence of the

statute, the Commonwealth relied upon the historical context of

cross burning.” Black, 262 Va. at 776. It seems abundantly clear

that the Commonwealth takes the position that all cross burnings

should be prohibited because of their potential effect upon those

who view them. “Cross burning is a form of intimidation — a threat

of harm.” Petitioner's Brief at 34. “Cross burning presents a

special case of intimidation.” /d. at 37. “To treat cross burning as

intimidation is simply to recognize the ‘shorthand’ already in use

' The Commonwealth further attempts to distinguish Eichman on the grounds that

it involved flag desecration, “an act that enjoys the full protection of the First

Amendment,” whereas this case involves the constitutionally proscribable

expression of threats. Petitioner's Brief at 18. This is an apples and oranges

comparison. Such a distinction would be valid only if the statute struck down in

Eichman prohibited flag desecration undertaken with the intent of intimidating

another person. Ironically, under the Commonwealth’s theory such a statute would

be constitutional because it targets not the expressive act of burning a flag but the

11

and already understood by perpetrator and victim alike.” /d. at 41.

Thus, the Commonwealth seems to claim both that (1) Virginia

Code § 18.2-423 is viewpoint-neutral because its sweep does not

include cross burnings undertaken without an intent to intimidate,

and, (2) every cross burning is an act of intimidation. The Virginia

Supreme Court correctly held that “the Commonwealth cannot

have it both ways.” Black, 262 Va. at 776.

Virginia Code § 18.2-423 unmistakably targets the viewpoint that

the symbolic act of burning a cross conveys. To consider the statute

viewpoint-neutral would require a finding that the concern motivating

§18.2-423 is simply the igniting of two pieces of wood joined at right

angles. To the contrary, this section singles out for criminal

punishment a particular and widely recognized message, on the basis

of its content and viewpoint, and because of its potential effect upon

observers. The public burning of a cross is a symbolic act deeply

offensive and odious to the vast majority of American citizens, but not

to all. For those few, a burning cross is a symbol of white supremacy.

See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S.

753, 770-71 (1995) (Thomas, J., concurring). That Virginia Code

§18.2-423 may not specify the Ku Klux Klan as the only potentially

affected speaker does not avoid constitutional challenge, for this

section clearly targets the use of a particular symbol that has come

to represent the Ku Klux Klan and its viewpoint on issues of race.

See id. (Thomas, J., concurring). By targeting a particular symbol,

sbabl sin althettiabieal

_

the Commonwealth essentially is attempting to do what concerned

this Court in Cohen v. California, when it stated, “we cannot

indulge the facile assumption that one can forbid particular words

without also running a substantial risk of suppressing ideas in the

process. Indeed, governments might soon seize upon the

censorship of particular words as a convenient guise for banning

the expression of unpopular views.” 403 U.S. 15, 26 (1971).

The clear implication of the Commonwealth’s defense of the

Virginia Code § 18.2-423 is that the phrase “with the intent of

intimidating” serves to validate, under the First Amendment, a

prohibition that would otherwise be suspect as content- and

viewpoint-specific regulation of expression. The Commonwealth’s

rationale, for example, would seem to justify a statute that

criminalized “the public display of a cross erected with the intent to

intimidate,” and went on to state that “any such display of a cross is

prima facie evidence of an intent to intimidate.” So long as a

Statute is limited to displaying a cross “with the intent to

intimidate,” the Commonwealth would presumably argue, the First

Amendment would be satisfied. It seems, however, highly doubtful

that any court would rule against the myriad Christian churches

which undoubtedly would mount a facial challenge to any such

Statute. These churches would prevail in their challenge for the

same reason that appellant must succeed in his challenge to

13

Virginia Code § 18.2-423 — the symbolic expression targeted by

such a statute is fully protected under the First Amendment.

Such a hypothetical scenario, though analytically apposite,

casts in bold relief the basic flaw in the Commonwealth’s

argument: The insertion of the phrase “with the intent of

intimidating” as a talismanic appendage to an otherwise viewpoint

discriminatory statute simply will not satisfy the First Amendment,

particularly when government, as discussed below, has viewpoint-

neutral means at its disposal to protect citizens from intimidation.

Invalidating Virginia Code § 18.2-423 does not deprive the

Commonwealth or other states of the capacity to enact and enforce

forms of similar conduct. In RA.V., this Court stressed both the

obligation of, and the options for, government in areas where

overly broad regulation abridges protected expression:

[T]he danger of censorship presented by a facially content-

based statute requires that that weapon be employed only

where it is necessary to serve the asserted [compelling]

interest. The existence of adequate content-neutral

alternatives thus undercut[s] significantly any defense of

such a statute, casting considerable doubt on the

government’s protestations that the asserted justification is

in fact an accurate description of the purpose and effect of

the law.

14

505 U.S. at 395 [internal quotation marks and citations omitted,

alterations in original]. Such content-neutral alternatives would

involve, for example, targeting conduct such as trespass and arson.

Government may also narrowly target certain forms of expression

such as threats to kill or do serious bodily harm, cf Virginia Code §

18.2-60. In United States v. Hayward, two trespassing cross

burners were convicted under a content-neutral federal law

prohibiting the use of “fire or an explosive to commit a felony.” 6

F.3d 1241, 1246 (7 Cir. 1993)(emphasis added).

Any concern that striking down Virginia Code § 18.2-423

could benefit lawless actors by invalidating other laws aimed at

intimidation seems unwarranted. That suggestion assumes,

incorrectly, that intimidation is the gravamen of every offense in

which “intimidation” is an element. In fact, in most such crimes

the gravamen of the offense is the specific goal or object of

coercing another person to act — or to refrain from acting — in ways

that the person would not otherwise have acted. See, e.g., Virginia

Code § 18.2-47 (kidnapping); Virginia Code § 18.2-61 (rape);

Virginia Code § 18.2-460 (obstruction of justice); Virginia Code §

24.2-1000 (hindering election officials); Virginia Code § 40.1-53

(interference with employment). In making such actions as these

unlawful, intimidation is not the focus of the criminal charge, but

rather the means by which one carries out what is clearly an illegal

— and constitutionally unprotected — activity or enterprise. In the

instant case, by contrast, intimidation is the end result which the

15

Commonwealth suggests it wishes to prevent; it may not do so,

however, by prohibiting lawful, constitutionally protected speech

or activities.

Virginia Code § 18.2-423 makes criminal the expression of a

particular viewpoint, hateful and abhorrent though it may be to the

vast majority of Virginians and Americans. That is precisely what

the Supreme Court has consistently ruled that states may not do,

however laudable their reasons. The Commonwealth, like St. Paul,

Minnesota, “has sufficient means at its disposal to prevent such

behavior without adding the First Amendment to the fire.” RAV,

505 U.S. at 396.

I. THE SWEEP OF VIRGINIA CODE § 18.2-423’S

PROHIBITION REACHES EXPRESSION BEYOND

“TRUE THREATS” AND IS’ THEREFORE

CONSTITUTIONALLY OVERBROAD.

Thus far, amicus has accepted arguendo the Commonwealth’s

assertion that Virginia Code § 18.2-423 prohibition of cross

burning “with the intent of intimidating” is a prohibition of “true

threats,” a category of expression that receives less than the full

protection of the First Amendment. Yet, as Justice Kinser noted in

a concurring opinion, under Virginia law “[t]here is a difference

between threat and intimidation.” Black, 262 Va. at 780 (Kinser, J.

concurring\(quoting Sutton v. Commonwealth, 228 Va. 654, 663

16

(1985)). “An act performed with the intent to intimidate... does not

rise to the same level as a threat...” Jd.

Freedom of speech requires the tolerance of expression that

makes us uncomfortable, or that even frightens us. “{I]n our

system, undifferentiated fear or apprehension of disturbance is not

enough to overcome the right to freedom of expression.” Tinker,

393 U.S. at 508 (emphasis added). Further, fear has sources other

than threats. “Any variation from the majority's opinion may

inspire fear.” Jd.

Despite the Commonwealth’s claim to the contrary, it is readily

apparent that the “intimidating” language of Virginia Code § 18.2-

423 applies to expression beyond what this Court has deemed to be

a “true threat.” The precedent that is consistently cited for the

principle that “true threats” receive little (if any) First Amendment

protection is Watts v. United States, 394 U.S. 705 (1969). See, e.g.,

Petitioner's Brief at 14, fn. 7. Few who cite Watts for this purpose,

however, call attention to the fact that the expression at issue there

- a fairly explicit threat to kill the President of the United States -

was found, when viewed in context, to be “political hyperbole” and

therefore constitutionally protected. Watts, 394 U.S. at 708. “[A]

Statute such as this one, which makes criminal a form of pure

speech, must be interpreted with the commands of the First

Amendment clearly in mind. What is a threat must be distinguished

from what is constitutionally protected speech.” Jd. at 707. To cite

17

Watts without any reference to its factual disposition misconstrues

the holding of the case and is misleading.

The statute at issue in Watts provided, in pertinent part, that it

was unlawful to make “any threat to take the life of or inflict bodily

harm upon the President of the United States...” /d. at 705. Thus,

the law explicitly defined both the target of the threat and that it

had to be a threat of physical harm. Without these or similar

specifics in a threat prohibition, the danger is far greater that

“political hyperbole” and other forms of protected expression will

fall under the sweep of the prohibition. Although the First

Amendment does not protect threatening behavior, “[w]Jhen such

conduct occurs in the context of constitutionally protected activity,

[ ] ‘precision of regulation’ is demanded.” NAACP v. Claiborne

Hardware Co., 458 U.S. 886, 916 (1982) (citing NAACP v. Button,

371 U.S. 415, 438. n52 (1963)).

The best evidence that Virginia Code § 18.2-423 lacks such

requisite precision is the conviction of Barry Black. Mr. Black was

convicted for burning a cross at a political rally. The rally took

place on private property, with the permission of the owner, in a

location where it was far from certain that any members of the

groups (much less any specific individuals) that were targets of his

alleged intimidation would see the burning cross. A conviction

under these circumstances would not be possible even under the

three cross burning statutes from other states that the

Commonwealth cites in support of Virginia Code § 18-2-423.

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Under the California and Florida statutes at issue in, respectively,

People v. Steven S., 31. Cal. Rptr. 2d 644 (Cal. App. 1 Dist. 1994),

and State v. T.3.D., 656 So. 2d 479 (Fla 1995), there is a

requirement that the cross burning take place on the property of

another without the permission of the owner. (Indeed, in Steven S.,

the court specifically recognized that a cross burnir.g at a Ku Klux

Klan rally would be constitutionally protected. 31 Cal. Rptr. 2d at

648.) In its brief, the Commonwealth questions the distinction

between burning a cross on someone’s yard without their

permission and burning a cross just beyond that same person’s

property line. Petitioner's Brief at 33, n. 19. The answer to the

Commonwealth’s query is that linking criminal culpability with

unauthorized access to property limits the circumstances under

which a prosecution can be initiated. Thus, the potential of the

statute reaching protected expression is greatly reduced.’

Although the Washington statute at issue in State v. Talley, 858

P.2d 217 (Wash. 1993) contained no requirement of owner

? Where the speech takes place on private proper with the owner’s consent or at

the owner’s invitation, the extension of criminal sanctions is particularly ominous

for both free speech rights and property rights. Cf City of Ladue v. Gilleo, $12

U.S. 43 (1994)(placing of political signs at private residence has distinct expressive

value); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)(potential

offensiveness to unwilling viewers of movies with scenes of nudity is insufficient to

justify ban of such movies being shown at privately-owned drive-in theaters with

screens visible from the street); Spence v.Washington, 418 U.S. 405

(1975)(property concept central in overturning conviction of individual who, on

private property, violated statute prohibiting improper use of American flag); see

also Norman Dorsen, Joel Gora, Free Speech, Property, and the Burger Court:

Old Values, New Balances, Supreme Court Review, 195 (1982).

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authorization, it did contain a limiting provision requiring that the CONCLUSION

For the foregoing reasons, amicus curiae respectfully urges this

Court to affirm the judgment of the Supreme Court of Virginia.

context of the cross burning be taken into account.

[I]t does not constitute malicious harassment for a person

to speak or act in a critical, insulting, or deprecatory way

unless the context or circumstances surrounding the words

or conduct places another person in reasonable fear of

harm to his or her person or property or harm to the person

or property of a third person . . . [.] .

Id. at 221 (emphasis added). On the basis of this provision, the

Washington State Supreme Court affirmed the dismissal-of charges

against a defendant who burned a cross on his own property but

was targeting a group of African-Americans on the adjoining

property. Jd.

Virginia Code 18.2-423 contains no provisions to ensure that

its sweep is limited to the “true threats” envisioned in Watts v.

United States. Without such limiting provisions, it is

unconstitutionally overbroad.

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Respectfully submitted,

Ruta Ag)

Robert M. O’Neil

Counsel of Record

The Thomas Jefferson Center for

The Protection of Free Expression

400 Peter Jefferson Place

Charlottesville, VA 22911

J. Joshua Wheeler

The Thomas Jefferson Center for

the Protection of Free Expression

400 Peter Jefferson Place

Charlottesville, VA 22911

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