Burning Crosses, Hangman’s Nooses, and the Like: State Statutes That Proscribe the Use of Symbols of Fear and Violence with the Intent to Threaten

Congressional research reportOct 5, 2007

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Prepared for Members and Committees of Congress

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Almost half of the states outlaw cross burning with the intent to threaten as such. A few of these

statutes cover the display of hangman’s nooses and other symbols of intimidation as well.

Moreover, the same misconduct also frequently falls under more general state prohibitions on

coercion, terroristic threats, harassment, or hate crimes. Some of these laws feature a hate crime

element without which conviction is not possible; others do not. In either case, there are obvious

first amendment implications.

The Supreme Court has explained that not all speech, particular expressive conduct, is protected

by the First Amendment. However, in R.A.V. v. St. Paul, it held cross burning with the intent to

annoy was protected and did not come within the “fighting words” category of unprotected

speech. Shortly thereafter, in Black v. Virginia, the Court held that cross burning with the intent to

convey a true threat was not protected. Some of the Justices noted another difference between the

two cases: the ordinance in R.A.V. had a hate crime element—the offense had to be motivated by

racial or some other discriminatory animus; the statute in Black had no such element.

In years since Black was announced, the lower courts have continued to recognize true threats as

unprotected, but have also continued to analyze challenges to threat statutes under the First

Amendment’s overbreadth doctrine and the vagueness doctrine of the Fifth and Fourteenth

Amendments’ due process clauses. These laws have generally survived such challenges, although

an imprecisely worded statute has fallen victim to a vagueness attack upon occasion.

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Introduction............................................................................................................................... 1

Cross Burning............................................................................................................................ 1

General Prohibitions.................................................................................................................. 2

Coercion.............................................................................................................................. 2

Terroristic Threats ............................................................................................................... 3

Harassment.......................................................................................................................... 3

Civil Rights ......................................................................................................................... 4

First Amendment Considerations .............................................................................................. 5

Virginia v. Black .................................................................................................................. 5

Overbreadth and Vagueness .............................................................................................. 10

Fighting Words.................................................................................................................. 12

Conclusion ........................................................................................................................ 13

Author Contact Information .......................................................................................................... 14

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Burning crosses, exhibitions of hangman’s nooses and similar displays are the subjects of

criminal statutes in virtually every state in the Union. The coverage of those statutes varies a great

deal. The Supreme Court’s decision in Black v. Virginia1 serves as a reminder that efforts to

enlarge their scope raise serious, but not insurmountable, First Amendment implications.

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Legislatures in almost half of the states have enacted statutes that explicitly outlaw cross burning

in one form or another.2 The most common variety simply states, “It shall be unlawful for any

person, 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.”3 In other places, a

specific cross burning proscription has been affixed to the state’s civil rights law,4 its threat

statute,5 or its harassment provision.6

538 U.S. 343 (2003).

ALA.CODE §13A-6-28; ARIZ.REV.STAT.ANN. §13-1707; CAL. PENAL CODE §11411; CONN.GEN.STAT.ANN. §46a-58;

DEL.CODE ANN. tit.11 §805; FLA.STAT. ANN. §876.17; GA.CODE §16-11-37; IDAHO CODE §18-7902; ILL.COMP.LAWS

ANN. ch.720 ¶5, §12-7.6; LA. REV.STAT.ANN. §14:40.4; MD. CODE ANN.,CRIM. LAW §10-304; MO. ANN. STAT.

§565.095; MONT.CODE ANN.§45-5-221; N.H.REV. STAT.ANN. §631:4; N.J.STAT.ANN. §2C:33-10; N.C.GEN.STAT. §1412.13; OKLA.STAT.ANN. tit.21 §1174; S.C. CODE ANN. §16-7-120; S.D.COD.LAWS ANN. §22-19B-1; VT.STAT.ANN.

tit.13 §1456; VA. CODE ANN. §18.2-423; WASH.REV.CODE ANN.

LA.REV.STAT.ANN. §14:40.4[A.]. Given the individual complexities of state sentencing and correctional structures, a

discussion of the sanctions that follow as a consequence of violation of the statutes examined here is beyond the scope

of this report.

E.g., “(a) It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be

subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the

constitution or laws of this state or of the United Stats, on account of religion, national origin, alienage, color, race, sex,

blindness or physical disability....

“(c) Any person who places a burning cross or a simulation thereof on any public property, or on any private property

without the written consent of the owner, shall be in violation of subsection (a) of this section.” CONN.GEN.STAT.ANN.

§46a-58. As noted below, several states include a hate crime element within their coercion, terroristic threat, or

harassment statutes.

E.g.,”(a) A person commits the offense of a terroristic threat when he or she threatens to commit any crime of

violence, to release any hazardous substance, as such term is defined in Code Section 12-8-92, or to burn or damage

property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or

facility of public transportation or otherwise causing serious public inconvenience or in reckless disregard of the risk of

causing such terror or inconvenience. No person shall be convicted under this subsection on the uncorroborated

testimony of the party to whom the threat is communicated.

“(b) A person commits the offense of a terroristic act when: (1) He or she uses a burning or flaming cross or other

burning or flaming symbol or flambeau with the intent to terrorize another or another’s household; ...” GA.CODE §1611-37(a), (b)(1).

“No person may maliciously and with the specific intent to intimidate or harass another person because of that

person’s race, color, religion, ancestry or national origin: (1) causes physical injury to another person; or (2) Deface

any real or personal property of another person; or (3) Damage or destroy any real or personal property of another

person; or (4) Threaten by word or act, to do the acts prohibited if there is reasonable cause to believe that any of the

acts prohibited in subdivision (1), (2), or (3) of this section will occur,” S.D.COD. LAWS ANN. §22-19B-1.

“For purposes of this chapter, the term ‘deface,’ includes cross-burnings, or the placing of any word or symbol

commonly associated with racial, religious, or ethnic terrorism on the property of another person without that person’s

permission,” S.D.COD.LAWS ANN. §22-19B-2.

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Without more, these proscriptions do not ordinarily reach beyond burning crosses to hangman’s

nooses or other such harbingers of violence. In response several jurisdictions have resorted to

generic condemnation of symbols or exhibitions calculated to intimidate or threaten. One such

example states briefly,

It shall be unlawful for any person or persons to place, or cause to be placed, anywhere in the

state any exhibit of any kind whatsoever with the intention of intimidating any person or

persons, to prevent them from doing any act which is lawful, or to cause them to do any act

which is unlawful. FLA.STAT.ANN. §876.19.7

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Both the states that have explicit cross burning statutes, as well as those that do not, often have

coercion, terroristic threat, harassment or civil rights statutes of sufficient breadth to prosecute

misconduct that might otherwise be tried under a cross burning statute.

Coercion is a crime that dates from the Nineteenth Century Field Code (1865). It is a crime

reminiscent of extortion but without the extraction of property required of that offense.8 In those

states in which it is found, it is essentially the same. It prohibits efforts to compel another through

the use of threats to do or refrain from doing something the victim is legally entitled to do:

A person commits the crime of criminal coercion if, without legal authority, he threatens to

confine, restrain or to cause physical injury to the threatened person or another, or to damage

the property or reputation of the threatened person or another with intent thereby to induce

the threatened person or another against his will to do an unlawful act or refrain from doing a

lawful act.9

A few states characterize as the crime of intimidation the crime known elsewhere as coercion.10 In

either case, the proscription would apply where a cross burning or other symbolic threat is

designed to discourage another from exercising or refraining from exercising a particular lawful

prerogative.

See also, N.C.GEN.STAT. §14-12.13 (“It shall be unlawful for any person or persons to place or cause to be placed

anywhere in this State any exhibit of any kind whatsoever, while masked or unmasked, with the intention of

intimidating any person or persons, or of preventing them from doing any act which is lawful, or of causing them to do

any act which is unlawful.”);and CAL. PENAL CODE §11411; N.H.REV. STAT.ANN. §631:4; N.J.STAT.ANN. §2C:33-10;

S.D.COD.LAWS ANN. §22-19B-1.

Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 405 (2003) (“Eliminating the requirement that

property must be obtained to constitution extortion ... would eliminate the recognized distinction between extortion and

the separate crime of coercion.... ”).

ALA.CODE §13A-6-25(a); see also, ALASKA STAT. §11.41.530; ARK.CODE ANN. §5-13-208; CONN. GEN.STAT.ANN.

§53a-192; DEL.CODE ANN. tit.11 §791; KY.REV.STAT.ANN. §509.080; NEV.REV.STAT. §207.190; NEW YORK PENAL

LAW §§135.60, 135.65; N.D.CENT.CODE §12.1-17-06; OHIO REV.CODE ANN. §2905.12; ORE.REV.STAT. §163.275;

PA.STAT.ANN. tit. 18 §2906; WASH.REV.CODE ANN. §9A.36.070.

MONT.CODE ANN.§45-5-203; IND.CODE ANN. §35-45-2-1.

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State terroristic threat statutes are diverse. At one time, such statutes encompassed only threats to

commit a serious crime against person or property. Today those elements have been replaced and

augmented with an array of provisions relating to hoaxes and false alarms of catastrophic

consequences.11 In those states where one of the elements of the crime is either the fear of

imminent serious injury or property destruction12 or of a threat directed against the general

population,13 prosecution of intimidation by symbolic threats may be difficult if not impossible

under most circumstances. On the other hand, in those states where the terroristic threats statute

proscribes threats of death, serious injury or property destruction,14 particularly where the statute

has a hate crime element,15 the circumstances surrounding a cross burning or similar display may

present all the elements for a prosecution.

Most states have a harassment statute. In various configurations, they cover repetitious

annoyances;16 threats specifically conveyed, orally, electronically, or by telephone or mail;17 and

E.g., WYO.STAT.ANN. §6-2-505(a)(“A person is guilty of a terroristic threat if he threatens to commit any violent

felony with the intent to cause evacuation of a building, place of assembly or facility of public transportation, or

otherwise to cause serious inconvenience, or in reckless disregard of the risk of causing such inconvenience”);

NEB.REV.STAT. (“(1) A person commits terroristic threats if he or she threatens to commit any crime of violence: (a)

With the intent to terrorize another; (b) With the intent of causing the evacuation of a building, place of assembly, or

facility of public transportation; or (c) In reckless disregard of the risk of causing such terror or evacuation.”).

E.g., TEX.PENAL CODE ANN. §22.07; UTAH CODE ANN. §76-5-107.

E.g., LA.REV.STAT.ANN. §14:40.1[A](“Terrorizing is the intentional communication of information that the

commission of a crime of violence is imminent or in progress or that a circumstance dangerous to human life exists or

is about to exist, with the intent of causing members of the general public to be in sustained fear for their safety; or

causing evacuation of a building, a public structure, or a facility of transportation; or causing other serious disruption to

the general public.”); VA. CODE ANN. §18.2-46.4, 18.2-46.5.

DEL.CODE ANN. tit.11 §621(a)(“A person is guilty of terroristic threatening when he or she commits any of the

following: (1) the person threatens to commit any crime likely to result in death or in serious injury to person or

property... ”); see also, ALA.CODE §13A-10-15; ALASKA STAT. §§11.56.807, 810; ARIZ.REV.STAT.ANN. §13-1202;

ARK.CODE ANN. §§5-13-301, 5-54-203; HAWAII REV.STAT. §707-715; KY.REV. STAT. ANN. §508.080;

MINN.STAT.ANN. §609.713; NEB.REV.STAT. §28-311.01; N.H.REV. STAT.ANN. §631:4; N.J.STAT.ANN. §2C:12-3; NEW

YORK PENAL LAW §490.20; N.D.CENT.CODE §12.1-17-04; OHIO REV.CODE ANN. §2909.23; PA.STAT. ANN. tit. 18

§2706.

E.g., OKLA.STAT.ANN. tit.21 §850[A](“No person shall maliciously and with the specific intent to intimidate or

harass another person because of that person’s race, color, religion, ancestry, national origin or disability: 1.Assault or

batter another person; 2. Damage, destroy, vandalize or deface any real or personal property of another person; or 3.

Threaten by word or act, to do any act prohibited by paragraph 1 or 2 of this subsection if there is reasonable cause to

believe that such act will occur.”), see also, CONN.GEN.STAT.ANN. §53a-181k(a); MICH.COMP.LAWS ANN. §750.147b.

As discussed below, the Supreme Court’s decision in Black may cast a shadow over the true threat statutes that feature

a hate crime element.

E.g. , KY.REV.STAT.ANN. §525.070(1)(e)(“A person is guilty of harassment when with intent to harass, annoy or

alarm another person he ...(e) Engages in a course of conduct or repeatedly commits acts which alarm or seriously

annoy such other person and which serve no legitimate purpose.”); ARK.CODE ANN. §5-17-208; COLO.REV.STAT. §189-111; MASS. GEN.LAWS ANN. ch.265 §43A; NEB.REV.STAT. §28-311.02; N.MEX.STAT. ANN. §30-3A-2; S.C. CODE

ANN. §16-3-1700.

E.g., ARIZ.REV.STAT.ANN. §13-2921 [A](“A person commits harassment if, with intent to harass or with knowledge

that the person is harassing another person, the person: 1. Anonymously or otherwise communicates or causes a

communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a

manner that harasses. 2. Continues to follow another person in or about a public place for no legitimate purpose after

being asked to desist 3. Repeatedly commits an act or acts that harass another person. 4. Surveils or causes another

(continued...)

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conduct likely to stimulate an immediate violent response.18 Most are unlikely to reach symbolic

threats and intimidation such as cross burning, hangman’s nooses or their ilk. A few, however,

may qualify, especially those that resemble terroristic threat statutes. The Nevada statute, for

example, states in relevant part:

A person is guilty of harassment if: (a) Without lawful authority, the person knowingly

threatens: (1) To cause bodily injury in the future to the person threatened or to any other

person ... and (b) The person by words or conduct places the person receiving the threat in

reasonable fear that the threat will be carried out. NEV.REV.STAT. §200.571[1].19

Here too, constitutional anxieties aside, coverage is most apparent in those statutes that feature a

hate crime element.20

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Most jurisdictions have hate crime sentencing statutes that enhance the penalties imposed for

commission of other criminal offense when the defendant was motivated by racial, religious or

some other discriminatory animus.21 As already noted, the presence of such animus is an element

in several of the cross burning, harassment and threat statutes. Apart from these, a handful of

states also have statutes that criminalize the deprivation of civil rights generally:

(B) If any person does by force or threat of force, willfully injure, intimidate or interfere

with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person

in the free exercise or enjoyment of any right or privilege secured to him or her by the

Constitution or laws of the State of West Virginia or by the Constitution or laws of the

United States, because of such other person’s race, color, religion, ancestry, national origin,

(...continued)

person to surveil a person for no legitimate purpose. 5. On more than one occasion makes a false report to a law

enforcement, credit or social service agency. 6. Interferes with the delivery of any public or regulated utility to a

person.”); CONN.GEN.STAT.ANN. §§53-182b, 53a-183; IND.CODE ANN. §35-45-2-2; IOWA CODE ANN. §708.7; 18-7903;

KAN.STAT.ANN. §21-4113; MO.ANN.STAT. §565.090; N.D.CENT.CODE §12.1-17-07; OKLA.STAT.ANN. tit.21 §1172;

TENN.CODE ANN. §39-17-308; TEX.PENAL CODE ANN. §42.07; UTAH CODE ANN. in §76-5-106.

E.g., ALA.CODE §13A-11-8(a)(1) (“A person commits the crime of harassment if, with intent to harass, annoy, or

alarm another person, he or she either: a. Strikes, shoves, kicks, or otherwise touches a person or subjects him or her to

physical contact. b. Directs abusive or obscene language or makes an obscene gesture towards another person.”);

ALASKA STAT. §11.61.122; NEW YORK PENAL LAW §240.25; ORE.REV.STAT. §166.065; PA.STAT.ANN. tit. 18 §2709.

See also, DEL.CODE ANN. tit.11 §1311, 1312; MINN.STAT.ANN. §609.749; OKLA.STAT. ANN. tit.21 §850;

WASH.REV.CODE ANN. §9A.46.020; WIS.STAT.ANN. §947.013.

E.g., ORE.REV.STAT. §166.155(1)(“A person commits the crime of intimidation in the second degree if the person: ...

another or of a member of the other’s family, subjects such other person to alarm by threatening: (A) To inflict serious

physical injury upon or to commit a felony affecting such other person, or a member of the person’s family; or (B) To

cause substantial damage to the property of the other person or of a member of the other person’s family.”).

ALA.CODE §13A-5-13; ARIZ.REV.STAT.ANN. §13-702; CAL. PENAL CODE §422.75; CONN.GEN.STAT.ANN. §53a-40a;

DEL.CODE ANN. tit.11 §1304; FLA.STAT.ANN. §775.085; HAWAII REV.STAT. §706-662; ILL.COMP.LAWS ANN. ch.720

¶5, §12-7.1; IOWA CODE §729A.2; KAN.STAT.ANN. §21-4716; KY.REV.STAT.ANN. §532.031; LA.REV.STAT.ANN.

§14:40.4; ME.REV.STAT.ANN. tit.17-A, §1151; MINN.STAT.ANN. §244 App.II.D.2; MO. ANN.STAT. §557.035;

MONT.CODE ANN.§45-5-222; NEV.REV.STAT. §207.185; N.H.REV. STAT.ANN. §651:6; N.J.STAT.ANN. §2C:16-1; N.Y.

PENAL LAW §485.05; N.C.GEN.STAT. §14-3; OHIO REV. CODE ANN. §2927.12; PA.STAT.ANN. tit.18 §2710;

R.I.GEN.LAWS §12-19-38; TENN.CODE ANN. §40-35-114; TEX.PENAL CODE §12.47; UTAH CODE ANN. §76-3-203.3;

VT.STAT.ANN. tit.13 §1456; W.VA. CODE §61-6-21(d); WIS.STAT.ANN. §939.645.

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political affiliation or sex, he or she shall be guilty of a felony.... W.VA.CODE ANN. §61-621(B).22

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No cross burning statute or law of similar comportment can be assessed without considerations of

its First Amendment implications. Generally, these statutes will pass constitutional muster so long

as they can be read only to proscribe expressive conduct that falls outside of the protection of the

First Amendment. The First Amendment provides that “Congress shall make no law ... abridging

the freedom of speech.”23 The Fourteenth Amendment’s due process clause imposes the same

restriction upon the states,24 many of whose constitutions house a comparable limitation on state

legislative action.25

The First Amendment protects both pure speech and expressive conduct used to convey a

message or embody an ideology.26 However, the Supreme Court has long recognized that the First

Amendment does not afford all forms of expression absolute protection, and the government

constitutionally may prohibit the forms of expression that fall outside of the First Amendment’s

protections.27 The First Amendment permits “restrictions upon the content of speech in a few

limited areas, which are of such slight social value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the social interest in order and morality.”28

The proscribable categories of speech include, but are not limited to, obscenity,29 “fighting

words,”30 and “true threats.”31 The Supreme Court recently decided a case analyzing the

constitutionality of a cross-burning statute, categorizing the prohibited conduct as a “true threat.”

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Virginia v. Black considered the constitutionality of a Virginia statute that banned cross-burning

“with the intent to intimidate.”32 Men had been convicted under the statute in two separate cases,

which the Supreme Court consolidated and heard together.33 In the first case, Mr. Black burned a

See also, CAL. PENAL CODE §422.6; ME.REV.STAT.ANN. tit.17 §2931; MASS. GEN.LAWS ANN. ch.265 §37; S.C. CODE

ANN. §16-5-10; TENN.CODE ANN. §39-17-309.

U.S. Const. amend. I.

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 (1996); Gitlow v. New York, 268 U.S. 652, 666 (1925).

E.g., LA. CONST. Art. I §7; MD. DECL. RTS. Art. 40; MO. CONST. Art. I §8; N.H. CONST. Pt. I, art. 22; ORE. CONST.

Art. I §8; TEX. CONST. Art. I §8.

See Tinker v. Des Moines School Dist., 393 U.S. 503, 513-14 (1969) (finding that a school ban on armbands to

protest the Vietnam war was no less offensive to the Constitution than a ban on expressing that opinion verbally in

class discussions).

Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-72 (1942).

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382-83 (1992)(internal citation omitted).

Roth v. United States, 354 U.S. 476, 485 (1957)(holding that obscenity is not protected by the First Amendment).

See Chaplinsky, 315 U.S. at 573 (holding that certain words that would incite an average person to fight may be

prohibited).

See Virginia v. Black, 538 U.S. 343, 363 (2003)(finding that cross-burning is a particularly virulent form of

intimidation that may be punished as a “true threat”).

Id. at 343.

Id. at 348.

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cross on the property of a fellow member of the Ku Klux Klan (“Klan”).34 The property was

located in full view of a public highway where neighbors and passers-by could view the

ceremony and the burning cross.35 In the second case, Mr. Elliot burned a cross on the front lawn

of an African American family who had moved in next door.36

The statute under which the men were convicted read, in pertinent part:

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 such burning of a cross shall be prima facie evidence of an intent to intimidate.37

After laying out the statute, the Court proceeded to trace the history of cross-burning, placing

particular emphasis upon the use of the burning cross as a threat of future bodily harm by the

Klan.38 The Court noted that “while cross burning sometimes carries no intimidating message, at

other times the intimidating message is the only message conveyed.”39

Writing for the Court,40 Justice O’Connor indicated that cross burning, if accomplished with the

intent to intimidate a person or group, could be considered a “true threat” in light of the history of

burning crosses.41 In endorsing the constitutionality of the statutory provision banning cross

burning with the “intent to intimidate,” the Court defined a true threat.42

“True threats” encompass those statements where the speaker means to communicate a

serious expression of an intent to commit an act of unlawful violence to a particular

individual or group of individuals. See Watts v. United States, [394 U.S. 705, 708 (1969)]

(“political hyperbole” is not a true threat); R.A.V. v. City of St. Paul, 505 U.S. at 588. The

speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats

“protects individuals from the fear of violence” and “from the disruption that fear

engenders,” in addition to protecting people “from the possibility that the threatened violence

will occur.” Ibid. Intimidation in the constitutionally proscribable sense of the word is a type

of true threat, where a speaker directs a threat to a person or group of persons with the

intent of placing the victim in fear of bodily harm or death.43

Id.

Id. at 350.

Id. at 348.

Id. at 352-58.

Id. at 357.

Justice O’Connor’s opinion was joined by Chief Justice Rehnquist and Justices Stevens and Breyer, id at 347.

Justices Souter, Kennedy and Ginsburg concurred in the judgment in part and dissented in part, id. at 380; as did Justice

Scalia in a separate opinion, id. at 368; Justice Thomas dissented, although he joined portions of Justice Scalia’s

opinion, id. at 388.

Id. at 359-60.

Id. at 360.

Id. at 359-60 (emphasis added).

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Because cross burning is often intimidating, and often done with the intent of creating pervasive

fear in victims that they are a target of violence, it seems to fall squarely within the type of

constitutionally proscribable speech described by the Court.44

The Court also recognized that, historically, crosses have been burned for reasons that are

protected by the First Amendment.45 The act of burning crosses is common at traditional Klan

meetings, not unlike the meeting Mr. Black held during which the cross was lit, and those

gathered sang songs, including “Amazing Grace.”46 However, the majority declined to find that

once a law discriminates based on this type of content, the law is unconstitutional.47 The First

Amendment does not prohibit all forms of content discrimination within a proscribable area of

speech.48

Within the types of content discrimination that did not violate the First Amendment, the Court

cited R.A.V.49 for the proposition that “when the basis for the content discrimination consists

entirely of the very reason the entire class of speech at issue is proscribable, no significant danger

of idea or viewpoint discrimination exists.”50 In this case, Virginia did not single out crossburning with the intent to intimidate for certain reasons, such as cross-burning with the intent to

intimidate due to racial prejudice, but rather banned all cross burning done with the intent to

intimidate regardless of the underlying animus.51 The majority found the facts of one of the cases

it was deciding illustrative.52 It was unclear from the record whether Mr. Elliot burned a cross on

his neighbor’s lawn to express racial hatred or to express his lack of appreciation for complaints

about guns Mr. Elliot fired in his back yard.53 Because the Virginia statute was written to include

Mr. Elliot’s conduct regardless of his motivation, the statute did not discriminate against his

conduct on the basis of the content of the message the cross-burning conveyed and fell within the

permissible bounds of content discrimination outlined in R.A.V.54

Id.

Id. at 360 (footnote 2).

Id. at 361.

Id.

In R.A.V., the Supreme Court struck down a statute which banned cross-burning similar but not identical to the

statute at issue in this case. R.A.V., 505 U.S. at 379. The statute in R.A.V. read:

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 or race, color,

creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

Id. at 380. The Court held that the statute criminalized speech based on protected features of otherwise proscribable

speech. Id. at 385. In that way, it singled out for opprobrium certain specific ideas and left others untouched. Id.

Though the ordinance had been limited only to apply to “fighting words,” it was clear from the statute that it only

applied to fighting words in connection with hostility on the basis of “race, color, creed, religion or gender.” Id. at 391.

So, for example, conduct otherwise proscribable under the statute, like burning a cross, would not be punishable if done

with animus towards a person’s sexual orientation. Id. The Court found this to be impermissible viewpoint and content

discrimination, but suggested that a statute which was not limited to certain topics would pass constitutional review. Id.

at 396.

Id. at 361-62 (citing R.A.V. 505 U.S. at 388).

Id. at 362.

Id. at 363.

Id.

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The Court acknowledged that cross burning is a particularly virulent form of intimidation.55 As a

result, the Court held that a statute which criminalizes cross-burning “with the intent to

intimidate” is fully consistent with the Court’s previous holdings.56 Likening the situation to its

obscenity cases where a state may regulate only that obscenity “which is most obscene,” the

Court held that a state may choose to prohibit “only those forms of intimidation that are most

likely to inspire fear of bodily harm.”57

Following the “true threat” analysis, Justices O’Connor, Rehnquist, Stevens, and Breyer went on

to strike down the statute, because it contained another provision that made the act of cross

burning prima facie evidence of the intent to intimidate.58 The plurality found that, though it was

constitutional to ban cross burning with the intent to intimidate as a “true threat,” the prima facie

evidence provision could create an unacceptable danger that protected speech would be

criminalized or chilled.59 The issue in this portion of the opinion was a jury instruction delivered

in Mr. Black’s case.60 The instruction stated that “the act of burning a cross, by itself, is sufficient

evidence to infer the required intent.”61 This interpretation of the prima facie evidence provision

rendered the statute unconstitutional, in the plurality’s view.62 “The provision permits the

Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross

burning itself.”63 In the plurality’s view, the provision stripped away “the very reason why a State

may ban cross burning with intent to intimidate,” and created an unacceptable risk of the

suppression of ideas.64 On that basis, the plurality held that the statute was invalid on its face.65

Recognizing that the Virginia Supreme Court had not passed on the meaning of the prima facie

evidence provision, the plurality left open the possibility that Virginia’s highest court could apply

a constitutional interpretation to the prima facie evidence part of the statute, or sever it from the

statute completely.66

Justices Scalia and Thomas dissented from the plurality’s view that the prima facie evidence

provision rendered the statute facially unconstitutional.67 Justice Scalia, joined by Justice

Thomas, argued that prima facie evidence, as interpreted by Virginia courts in the past, “cut[] off

no defense nor interpose[d] any obstacle to a contest of the facts.”68 In Scalia’s view, prima facie

evidence “is evidence that suffices, on its own, to establish a particular fact,” but that is true only

to the extent that presumption remains unrebutted.69 The act of burning a cross is sufficient only

Id.

Id. at 368 (Stevens, J. concurring) (“Cross burning with an intent to intimidate unquestionably qualifies as the kind of

threat that is unprotected by the First Amendment.”).

Id. at 363.

Id. Justice Scalia concurred in “true threat” portion of Justice O’Connor’s opinion of the Court, id. at 368; Justices

Souter, Kennedy and Ginsburg concurred with the result reached in the opinion for the Court.

Id.

Id. at 364.

Id.

Id. at 365.

Id.

Id. at 367.

Id.

Id. at 374.

Id. at 370 (Scalia, J. dissenting).

Id.

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to create an issue for the trier-of-fact with respect to the intent element of the offense, not to

establish an irrebuttable presumption of intent to intimidate.70

Scalia, further, cited a decision in which the Supreme Court emphasized that “where a statute

regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its

overbreadth is not only real, but substantial ... judged in relation to the statutes’ plainly legitimate

sweep.”71 Justice Scalia argued that an instance in which a person would burn a cross in public

view without the intent to intimidate and then refuse to present a defense would be exceedingly

rare and did not rise to a level of substantiality that would render the statute unconsitutional.72

The class of persons the plurality was concerned could be convicted impermissibly under the

prima facie evidence provision was far too insubstantial to justify striking down the statute as

facially invalid.73 Justice Scalia agreed, however, that the jury instruction in Mr. Black’s case was

improper and would have remanded the case for interpretation of the prima facie evidence

provision, rather than hold the entire statute unconstitutional.74

Justice Thomas also wrote separately in dissent. Justice Thomas argued that the prima facie

evidence provision created an inference as opposed to a presumption, and should not raise

concern for the Court. A presumption, Justice Thomas noted, compels the fact-finder to draw a

certain conclusion or a certain inference from a given set of facts.75 On the other hand, an

inference does not compel a specific conclusion, but “merely applies to the rational potency or

probative value of an evidentiary fact to which the fact-finder may attach whatever force or

weight it deems best.”76 Thomas observed that statutes prohibiting possession of drugs implied an

intent to distribute based upon the quantity of drugs held and nothing more.77 In Thomas’s

opinion, these possession with intent statutes operated in much the same way as the statute at

issue in this case.78

Justice Thomas also dissented from the Court’s constitutional analysis of the statute. Justice

Thomas argued that banning cross-burning did not implicate the First Amendment because the

statute banned conduct only.79 In tracing the history of the cross-burning statute at issue, Justice

Thomas noted that the law was enacted in 1952, a time when the Virginia legislature was

controlled by segregationists.80 The legislature recognized that cross-burning was terrorizing

conduct and punishable for that reason.81 It is unlikely, in Justice Thomas’s view, that a state

legislature that thoroughly supported segregation and the superiority of the white race would have

intended to proscribe the message of white racial superiority.82 Rather, the legislature considered

Id. at 374.

Id. at 375. (internal citation omitted).

Id.

Id. at 374.

Id.

Id. at 395. (emphasis in original).

Id. at 398.

Id.

Id. at 388 (Thomas, J. dissenting).

Id. at 393-94.

Id. at 393.

Id. at 394.

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burning a cross to be an act of terrorism and sought to forbid the conduct, not expression.83 As a

result, Justice Thomas saw no reason to analyze the statute under the First Amendment.84

Justice Souter also wrote separately joined by Justices Kennedy and Ginsburg.85 Justice Souter

would have found the statute unconstitutional.86 He disagreed with the Court’s interpretation of

R.A.V. and the application of the “particular virulence” exception outlined in that case to crossburnings.87 Rather, Souter would have analyzed the Virginia statute for whether its “nature” is

such “that there is no realistic possibility that official suppression of ideas is afoot.”88

Regardless of that distinction, Justice Souter did not believe either conviction could be upheld

when considering the entire statute as it was applied to the accused.89 In Souter’s view, the

primary effect of the prima facie evidence clause “is to skew jury deliberations toward conviction

in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with

a solely ideological reason for burning.”90 In that way, Souter viewed the statute as suppressing

ideas to an unacceptable degree.91

On the basis of Black, it would appear that without offending First Amendment precepts a law

may proscribe cross burning and similar exhibits intended to convey “true threats.” Whether it

may proscribe only those true threats that also include a hate crime element of the type found in

the ordinance in R.A.V. is unclear at best.92

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Lower court cases decided after Black continue to address overbreadth and vagueness challenges

to threat, harassment and intimidation statutes.93 An otherwise valid governmental regulation may

be deemed unconstitutional if it “sweeps so broadly as to impinge upon activity protected by the

First Amendment.”94 Where a government proscribes both constitutionally protected speech and

Id.

Id. at 395.

Id. at 380-81.

Id. at 381.

Id. at 382.

Id. at 384. (citation omitted)

Id. at 384-85.

Id.

Id. at 386.

Id. at 362 (internal citations and quotations omitted)(“Similarly, Virginia’s statute does not run afoul of the First

Amendment insofar as it bans cross burning with intent to intimidate. Unlike the statute at issue in R.A.V., the Virginia

statute does not single out for opprobrium only that speech directed toward ‘one of the specified disfavor topics. It does

not matter whether an individual burns a cross with intent to intimidate because of the victim’s race, gender, or religion,

or because of the victim’s political affiliation, union membership, or homosexuality.”).

E.g., United States v. Cassell , 408 F.3d 622, 635 (9th Cir. 2005)(rejected vagueness challenge to a statute that

prohibits interference with a federal land sale by intimidation); Ward v. Utah, 398 F.3d 1239, 1247-254 (10th Cir.

2005)(rejecting overbreadth and vagueness challenges to the state intimidation crimes enhancement statute).

Dandridge v. Williams, 397 U.S. 471, 484 (1970).

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speech that is not protected by the First Amendment, the regulation may be struck down on

grounds that it is overly broad.95

Where a statute proscribes conduct rather than “pure speech,” the Supreme Court is less likely to

invalidate the statute on overbreadth grounds. As the conduct a statute prohibits moves further

from the realm of “pure speech” toward conduct that may fall within the scope of otherwise valid

criminal laws, like harassment or terroristic threats, the protected speech that may be deterred

“cannot, with confidence, justify invalidating the statute on its face.”96 As Justice Scalia pointed

out in Black, “where a statute regulates expressive conduct, the scope of the statute does not

render it unconstitutional unless its overbreadth is not only real, but substantial ... judged in

relation to the statute’s plainly legitimate sweep.”97 As a result, statutes that ban conduct, which

may otherwise be expressive, likely must create a danger of deterring a substantial amount of

protected speech in order to be declared facially overbroad.

Statutes banning expressive conduct that may be considered “true threats” are not immune,

however, to a facial overbreadth challenge. Faced with the problem of potential

unconstitutionality, state courts, by and large, have used the canons of statutory construction to

limit the reach of statutes to proscribe only “true threats” as defined by the Court in Black.98

Accepted rules of statutory construction instruct courts to, when feasible, construe the regulatory

effects of statutes challenged under the First Amendment to punish only expression which falls

outside the Amendment’s protection.99 Using this general principle, courts have read statutes to

prohibit only those constitutionally proscribable forms of expression, taking care to avoid

applying the statute to protected speech.100 As the Supreme Court held in Black, statutes such as

those addressed in this report, if interpreted by state courts only to prohibit conduct that amounts

to intimidation or expressions meant to communicate a serious threat of harm, would likely pass

constitutional muster.

Virginia v. Hicks, 539 U.S. 113, 118 (2003)(citation omitted)(noting that when a law is shown to punish a substantial

amount of free speech beyond the legitimate scope of the law, the statute is unconstitutional).

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

Black, 538 U.S. at 375 (Scalia, J. concurring in part, concurring in the judgment in part, and dissenting in part)(citing

Osborne v. Ohio, 495 U.S. 103, 112 (1990)).

See e.g., Washington v. Johnston, 127 P.3d 707, 709 (Wash. 2006)(finding that a Washington statute must be

construed to prohibit only true threats to avoid invalidation on overbreadth grounds), Wise v. Commonwealth., 641

S.E.2d 134, 138 (Va. Ct. App. 2007)(holding that a Virginia statute that prohibited threats constitutional because it

encompassed only “threats of bodily harm” and that threatening the life of an officer, even in the heat of the moment,

was a “true threat”).

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)(noting that an overbroad statute may not be given effect unless

and until “a limiting instruction or partial invalidation so limits it as to remove” the threat of deterring protected

expression).

100

See e.g., Washington v. Johnston, 127 P.3d at 709, Citizen Publishing Co. v. Arizona, 115 P.3d 107, 114 (Ariz.

2005)(holding that a statute which prohibited “threatening” or “intimidating” did not apply to a letter to the editor

published in a newspaper, because the letter could not be considered a “true threat”), Michigan v. Osantowski, 736

N.W.2d 289, 296-99 (Mich. Ct. App. 2007)(holding that a statute which prohibited acts of terrorism only prohibited

“true threats” and that commenting repeatedly in and internet chat room about killing school classmates constituted a

“true threat”), Wise v. Commonwealth of Va, 641 S.E.2d at 138 (holding a Virginia statute that prohibited threats

constitutional because it encompassed only “threats of bodily harm” and that threatening the life of an officer, even in

the heat of the moment, was a true “threat”), Dunham v. Roer, 708 N.W.2d 552, 566 (Minn. Ct. App. 2006)(upholding

the constitutionality of a statute where the focus was to prohibit unwanted acts, words, or gestures and its application to

the appellant where the appellant had repeatedly called the respondent derogatory names and used offensive gestures to

communicate her anger).

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“Even if an enactment does not reach a substantial amount of constitutionally protected conduct,

it may be impermissibly vague because it fails to establish standards for the police and public that

are sufficient to protect against the arbitrary deprivation of liberty interests.”101 Yet, there is

nothing inherently vague about statutes that outlaw the use, with the intent to threaten, of burning

crosses or other harbingers of violence, although as with any type of statute they may be

imprecisely drawn upon occasion.102

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Cross burning and comparable exhibits may provoke anger as well as fear. Laws that condemn

threats have sometimes been defended on the ground “fighting words” lie beyond the pale of the

First Amendment’s protection. This category of unprotected speech is of somewhat uncertain

dimensions. R.A.V. is a “fighting words” case, yet the Court in Black opted for a “true threat”

mode of analysis instead. On the other hand, in Black it elected to distinguish rather than reject or

ignore R.A.V.

The “fighting words” doctrine begins in Chaplinsky v. New Hampshire, where the Court held that

fighting words, by their very utterance inflict injury or tend to incite an immediate breach of the

peace and may be punished consistent with the First Amendment.103 In Chaplinsky, the Court

upheld a statute which prohibited a person from addressing “any offensive, derisive or annoying

word to any other person who is lawfully in any street or other public place,” calling “him by any

offensive or derisive name,” or making “any noise or exclamation in his presence and hearing

with the intent to deride, offend or annoy him, or to prevent him from pursuing his lawful

business or occupation.”104 The state court construed the statute as forbidding only those

expressions “as have a direct tendency to cause acts of violence by the person to whom,

individually, the remark [was] addressed.”105 Given the limited scope of application, the Supreme

Court held that the statute at issue did not proscribe protected expression.106

101

Chicago v. Morales, 525 U.S. 41, 52 ((1999)(citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)).

Lansdell v. State, ___ So.2d ___, ___, 2007 WL 2811969, (Ala.Crim.App. Sept. 28, 2007)(“Finally, we note that

Alabama is not alone in criminalizing conduct by which an individual terrorizes others by threatening violence or

damage to property. Indeed, numerous other states have criminalized such conduct. Moreover, those statutes have

withstood constitutional challenges based on overbreadth and vagueness. See Allen v. State, 759 P.2d 541, 545

(Ak.Ct.App.1988); In re Ryan A., 202 Ariz. 19, 39 P.3d 543 (Ariz.Ct.App.2002); People v. Maciel, 113 Cal.App. 4th

679, 685, 6 Cal.Rptr.3d 628, 634 (2003); State v. Crudup, 81 Conn.App. 248, 263, 838 A.2d 1053, 1064 (2004); Saidi

v. State, 845 So.2d 1022, 1026 (Fla.Dist.Ct.App.2003); Reilly v. State, 847 F.Supp. 951, 958 (M.D.Fla.1994); Lanthrip

v. State, 235 Ga. 10, 218 S.E.2d 771 (1975); Masson v. Slaton, 320 F.Supp. 669, 672-73 (N.D.Ga.1970); State v.

Chung, 75 Haw. 398, 862 P.2d 1063 (1993); Thomas v. Commonwealth, 574 S.W.2d 903, 909 (Ky.Ct.App.1978); Sykes

v. State, 578 N.W.2d 807 (Minn.Ct.App.1998); State v. Schmailzl, 243 Neb. 734, 740-41, 502 N.W.2d 463, 467-68

(1993); Commonwealth v. Bunting, 284 Pa.Super. 444, 455, 426 A.2d 130, 136 (1981); State v. Lanier, 81 S .W.3d 776

(Tenn.Crim.App.2000).”). Examples of imprecision include, Botts v. State, 604 S.E.2d 512 (Ga. 2004)(finding

unconstitutionally vague a hate crime penalty statute that enhanced the penalties for crimes motivated by “bias” and

“prejudice” but failed to distinguish between invidious bias or prejudice and lawful bias or prejudice); State v.

Williams, 26 P.3d 890 (Wash. 2001)(finding unconstitutionally vague a statute that outlawed threats to “mental health”

without defining “mental health”).

103

Chaplinsky, 315 U.S. at 572.

104

Id. at 569.

105

Id. at 572.

106

Id.

102

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This category of proscribable speech appears to be more difficult to define within the bounds of

the Constitution and requires the threat of an immediate breach of peace in order to be

punishable. In Cohen v. California, the Supreme Court held that words on a t-shirt that contained

an expletive were not directed at a person in particular and could not be said to incite an

immediate breach of the peace.107 For that reason, profane words that are not accompanied by any

evidence of violence or public disturbance are not “fighting words.”108 The Court went on to

describe the value of expression in communicating emotion.109 In the Court’s view, certain words,

including expletives, which could in other contexts be construed as fighting words, may be

indispensable in effectively communicating emotion, a form of expression protected by the First

Amendment.110 In Brandenburg v. Ohio, the Supreme Court struck down an Ohio statute that

criminalized advocating violent means to bring about social and economic change.111 The Court

found that the statute failed to distinguish between advocacy, which is protected by the First

Amendment, and incitements to “imminent lawless action,” which are not protected.112 These

cases illustrate that “fighting words” require an immediate risk of a breach of peace in order to be

proscribable. What speech is proscribable, therefore, appears highly dependent upon the context

in which it arises.113 Moreover, it can hardly escape notice that R.A.V. involved a law that

outlawed cross burning with the intent to annoy, while Black involved a law that outlawed cross

burning with the intent to threaten. The first the Court found impermissible. The second it said

offended only because an attendant provision effectively read the intent to threaten out of the

proscription.

To the extent that statutes of the types identified in this report ban expressive conduct that falls

outside the protection of the First Amendment, the laws generally pass constitutional muster.

When the laws can be read to encompass expressive conduct that is normally protected by the

United States Constitution as well as traditionally criminal conduct, the statute likely must chill a

substantial amount of protected conduct in order to be deemed facially invalid. Courts may limit

their interpretations of statutes that appear to sweep too broadly on their faces to encompass only

those forms of expression that are constitutionally proscribable.

107

403 U.S. 15, 20 (1971).

Id.

109

Id. at 26.

110

Id.

111

395 U.S. 444, 446 (1969)(per curiam).

112

Id. at 448.

113

See Odem v. Mississippi, 881 So.2d 940, 948 (Miss. Ct. App. 2004)(finding that complaints and shouts of profanity

from the defendant rose to the level of “fighting words” where the officer to whom he spoke did not initiate the

conversation nor did the officer have the opportunity to walk away); see also Washington v. King, 145 P.3d 1224

(Wash. Ct. App. 2006)(noting that “it is context that makes a threat “true” or serious), Commonwealth v. Pike, 756

N.E.2d 1157, 1158-60 (Mass. App. Ct. 2001)(upholding the conviction of a woman for violation of her neighbor’s civil

rights where she posted signs in her yard accusing homosexuals of molesting young children and yelled insulting

names as well as invitations to a physical fight because the words and conduct constituted “fighting words”).

108

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ȱȱ ȱ

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

ȱȱȱ

(name redacted)

Senior Specialist in American Public Law

[redacted]@crs.loc.gov, 7-....

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