← Autodidact Archive · Original Dissent · Texas Dissident
Thread ID: 4033 | Posts: 8 | Started: 2002-12-15
2002-12-15 21:33 | User Profile
[url=http://story.news.yahoo.com/news?tmpl=story2&cid=68&ncid=68&e=18&u=/nyt/20021212/ts_nyt/an_intense_attack_by_justice_thomas_on_cross_burning]An Intense Attack by Justice Thomas on Cross- Burning[/url]
Thu Dec 12, 9:00 AM ET
By LINDA GREENHOUSE
WASHINGTON, Dec. 11 The question for the Supreme Court in an argument today was whether a state may make it a crime to burn a cross without at the same time trampling on the protection that the First Amendment gives to symbolic expression. The case, concerning a 50-year-old Virginia law, raised tricky questions of First Amendment doctrine, and it was not clear how the court was inclined to decide it until Justice Clarence Thomas (news - web sites) spoke.
A burning cross is indeed highly symbolic, Justice Thomas said, but only of something that deserves no constitutional protection: the "reign of terror" visited on black communities by the Ku Klux Klan for nearly 100 years before Virginia passed the law, which the Virginia Supreme Court declared unconstitutional a year ago.
A burning cross is "unlike any symbol in our society," Justice Thomas said.
"There's no other purpose to the cross, no communication, no particular message," he continued. "It was intended to cause fear and to terrorize a population."
During the brief minute or two that Justice Thomas spoke, about halfway through the hourlong argument session, the other justices gave him rapt attention. Afterward, the court's mood appeared to have changed. While the justices had earlier appeared somewhat doubtful of the Virginia statute's constitutionality, they now seemed quite convinced that they could uphold it as consistent with the First Amendment.
Justice Thomas addressed his comments to Michael R. Dreeben, a deputy federal solicitor general who was arguing in support of Virginia's defense of its statute. But he did not have questions for Mr. Dreeben, who in any event agreed with him in nearly all respects. The threat of violence inherent in a burning cross "is not protected by the First Amendment" but instead is "prohibited conduct," Mr. Dreeben had just finished arguing.
Rather, Justice Thomas appeared driven to make the basis for his own position unmistakably clear.
"My fear is you are actually understating the symbolism of and effect of the burning cross," he said, adding, "I think what you're attempting to do is fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish."
It was a gripping made-for-television moment except, of course, for the fact that television cameras are not permitted inside the courtroom. Justice Thomas speaks in a rich baritone that is all the more striking for being heard only rarely during the court's argument sessions. His intervention, consequently, was as unexpected as the passion with which he expressed his view.
He referred to an opinion he wrote in 1995, concurring with the majority that the City of Columbus, Ohio, had no basis for refusing permission to the Klan to place a cross among other Christmastime displays in a downtown park that served as an open forum for religious expression. In that opinion, Justice Thomas said he was joining the decision despite his belief that the Klan's cross was not a form of religious expression but rather "a symbol of white supremacy and a tool for the intimidation and harassment" of racial and religious minorities.
There was a suggestion in his remarks today that perhaps he now regretted his effort in that case to meld his own views into the court's jurisprudence and, after 11 years on the court, no longer felt obliged to try.
Afterward, Justice David H. Souter addressed Rodney A. Smolla, the lawyer for three men who were convicted under the cross-burning statute in two incidents. Mr. Smolla, a well-known First Amendment scholar at the University of Richmond, had just argued that the government could make it a crime to brandish a gun but not to burn a cross because a gun has physical properties that make it dangerous while the danger inherent in a burning cross comes from the ideas it symbolizes and not its physical properties.
That might have been a winning argument two centuries ago, Justice Souter said, "but how does your argument account for the fact that the cross has acquired potency at least akin to a gun?"
Justice Souter called a burning cross "a kind of Pavlovian symbol, so that the person who sees it responds not to its message but out of fear." He added that "other symbols don't make you scared," suggesting that a burning cross might be "a separate category."
Mr. Smolla recalled the court's decision upholding a First Amendment right to burn an American flag.
"You must concede," he said, that the cross itself "is one of the most powerful religious symbols in human history." As with burning the flag, the act of burning a cross involves "calling on that repository of meaning" to make a symbolic point, he said.
Justice Ruth Bader Ginsburg (news - web sites) objected that there was "a big difference" between the two acts.
"The flag is a symbol of the government," Justice Ginsburg said, and it is inherent in the constitutional system that "anyone can attack the government." But burning a cross means "attacking people, threatening life and limb," she said.
The Virginia law prohibits burning a cross "with the intent of intimidating any person or group of persons." Mr. Smolla said it would be effective as well as constitutional to make threats and intimidation a crime without singling out a particularly threatening symbol.
"A burning torch and a burning cross what's the difference?" he asked, evidently intending to emphasize the expressive nature of cross-burning. But Justice Anthony M. Kennedy found a different answer. "One hundred years of history," he said.
Mr. Smolla made the best of the moment, saying, "Thank you, Justice Kennedy, and that 100 years of history is on the side of freedom of speech."
William H. Hurd, Virginia's state solicitor, argued on behalf of the statute in Virginia v. Black, No. 01-1107.
"We have not tried to suppress freedom of speech," Mr. Hurd said. "All we've tried to do is protect freedom from fear."
2002-12-15 22:08 | User Profile
**A burning cross is indeed highly symbolic, Justice Thomas said, but only of something that deserves no constitutional protection: the "reign of terror" visited on black communities by the Ku Klux Klan for nearly 100 years before Virginia passed the law, which the Virginia Supreme Court declared unconstitutional a year ago.
A burning cross is "unlike any symbol in our society," Justice Thomas said.
"There's no other purpose to the cross, no communication, no particular message," he continued. "It was intended to cause fear and to terrorize a population."**
I heard about this on the news. Because of who Clarence Thomas is, his comments will likely cause the general outlawing of cross lighting, even as rituals on private property where there are no non-whites around to feel "intimidated."
This case seems to be confusing two separate issues, and I suspect the government is deliberately fostering this confusion in collusion with the media.
Obviously, if someone lights a cross on a Black person's front lawn, that should be illegal since that is a violation of that person's private property--there's trespassing, vandalism, and probably fire codes that already prohibit this.
But this law appears to affect cross lighting rituals that Klansmen perform on their own property, say at their national conventions and the like. That should be legal. No one is being harmed by that, and the people hosting the event and attending the event all approve of it and authorize it.
Thomas is dead wrong about cross lighting having no legitimate political message behind it. It is an attempt to emulate an ancient Scottish practice of lighting crosses on hill sides to call their fellows together in defense of their freedom. Call it an ancient version of "the Bat Signal."
Here's an excerpt from a page explaining the practice:
-- from [url=http://www.kukluxklan.org/cross.htm]http://www.kukluxklan.org/cross.htm[/url] --
**The cross lighting ceremony is another example of how the national media distorts the Klan image. They purposely use the word "burn" because of the negative image that is conjured up in the minds of many people. To them it is a desecration, a desire to destroy the cross.
The Knights definitely does not burn the cross, but we do light the cross. The lighted cross of The Knights is no different than the average church that has a lighted cross either on top or in front of their church building. The light of the cross symbolizes the Light of Christ dispelling darkness and ignorance. It is the fire of the cross that reminds us of the cleansing "fire" of Christ that cleanses evil from our land. The fiery cross is a symbol that has long been popular with the Christian faith, for example the Methodist denomination uses the fiery cross as their symbol.
We don't burn the cross, we Light the cross. We recognize that Christ is the light of the world.
The Klan adopted the fiery cross from the traditions of old Scotland where the fiery cross was used as a symbol against tyranny and often the hills of Scotland would be lit aglow with the lighted cross -the symbol of freedom - freedom from sin - freedom from tyranny.
**
The media will never allow the other side of the story to be heard.
Should the Court outlaw the practice, civil disobedience is called for.
2002-12-15 22:18 | User Profile
The fiery cross is a Christian Scots concept, they would light the cross in the calling of the clans from which the Ku Klux Klan got it.
2002-12-16 00:08 | User Profile
The Council of Conservative Citizens' amicus brief submitted to the SC on this matter: [url=http://www.cofcc.org/amicus.htm]http://www.cofcc.org/amicus.htm[/url]
2002-12-16 02:15 | User Profile
There is only one remedy left to correct what is transpiring inevitablhy, unless stoped.
Overnight formation of a NEW AMERICAN CONSERVATIVE PARTY
Growing out of the Pure
American
Communication
NEW PAC* MOVEMENT !!
spawned by the inclusiveness and perspective of this board. (Motto: Give the people the truth, and the freedom to discuss it, and all will go well.)
It will welcome the vote and participation of all who include themselves under the unity of the original US Constitution, understood as in the election of 1800, John Adams vs. Thomas Jefferson, before political partisanship ruled entirely;
-understood to have been deficient in the extension of the rights granted by it to citizens, called "civil rights", in three respects, subsequently corrected by history:
1. The equaity of status of women and men in all things, before the law and in politics.
2. The equality of status of people of all races in all thingsw, before the law and in politics.
3. The exclusion of use of religious terms, e.g., "God", under which the Constitution was signed, from use by any public official, candidated for public office, or spokesperson for any government connected or sanctioned organization, without labelling themselves, by religious denomination, as the origin, as ib "AS A JEW", or "AS A CATHOLIC" or "AS A BLACK MAN", or "AS A WOMAN"< etc,.
The point of this major legislative correction is to undo a grievous misunderstanding that has crept into use of "God" in the context of the Constitution. Without it, people wind up voting for "God", which is not right. Any "spiritual entrepreneur" (cf. Elmer Gantry) might come along, whip out some well-armed body guards, set up a revival tent in downtown Detroit, station his security forces on top of the relevant roofs and windows, and send out MoTherJones helpers in a blue bonnet to bring the good news of new salvation. God has just appointed the One previously called "Mr. President", to a new status. From now on, he will be referred to as "Mr. God Himself". Call on his name, and thou shalt be saved. Blaspheme it, and you will be shot in the back, or lynched in the public square on scaffolds Mr. God Himself has erected, called Busted Faith Initiative. The Great Khan did it. Could he be any more divine that this one?
After these problems with the constitution get corrected, and most of them have, then we can turn to look at the effect various religions that filtered in, since, have had on the national polity. This would show a hugely distorting effect by bloc votes now tied to off-shore powers centered in Tel Aviv and The Vatican. To the point of bringing on a new civil war, not unlike the lines along which the first was fought -- redefining the Southern part of the contract without that region's permission.
Please see my previous post: When the Jew who said God
Got to Boston, He got Scrod.
With Gore mercifully dismissing himself, that leaves Loserman for the Dems to run.
But that rips the cord. No f*king way.
To those who have Perle-loined our language, raped our soul, and defiled our spirit ... burn under your own cross. Its not Americas.
2002-12-19 01:30 | User Profile
C of CC Submits Amicus Curiae Brief to the Supreme Court
The Council of Conservative Citizens has entered a First Amendment Supreme Court case. Read the Brief .
url: [url=http://www.cofcc.org/amicus.htm]http://www.cofcc.org/amicus.htm[/url]
2003-04-30 02:23 | User Profile
Yes! After the Supreme Court heard the case and decided on two key issues concerning Cross "burning", it became clear that it was and continues to remain, illegal to "burn" a cross with the intent to intimidate.
However, lighting the cross at political or Christian gatherings cannot be made illegal, IN ANY STATE OR TERRITORY that falls under the jurisdiction of the Supreme Court of the United States. Cross lighting, or "burning" is a CONSTITUTIONALLY PROTECTED form of expression and will continue to enjoy the constitutional protections afforded political and/or Christian organizations including The Knights of the Ku Klux Klan.
Here is the text of the decision from The Supreme Court concerning this issue:
[url=http://laws.findlaw.com/us/000/01-1107.html]http://laws.findlaw.com/us/000/01-1107.html[/url]
VIRGINIA v. BLACK et al. certiorari to the supreme court of virginia No. 01-1107. Argued December 11, 2002--Decided April 7, 2003
Respondents were convicted separately of violating a Virginia statute that makes it a felony "for any person ... , with the intent of intimidating any person or group ... , to burn ... a cross on the property of another, a highway or other public place," and specifies that "[a]ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group." When respondent Black objected on First Amendment grounds to his trial court's jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred, the prosecutor responded that the instruction was taken straight out of the Virginia Model Instructions. Respondent O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. At respondent Elliott's trial, the judge instructed the jury as to what the Commonwealth had to prove, but did not give an instruction on the meaning of the word "intimidate," nor on the statute's prima facie evidence provision. Consolidating all three cases, the Virginia Supreme Court held that the cross-burning statute is unconstitutional on its face; that it is analytically indistinguishable from the ordinance found unconstitutional in R. A. V. v. St. Paul, 505 U. S. 377; that it discriminates on the basis of content and viewpoint since it selectively chooses only cross burning because of its distinctive message; and that the prima facie evidence provision renders the statute overbroad because the enhanced probability of prosecution under the statute chills the expression of protected speech.
Held: The judgment is affirmed in part, vacated in part, and remanded. 262 Va. 764, 553 S. E. 2d 738, affirmed in part, vacated in part, and remanded.
Justice O'Connor delivered the opinion of the Court with respect to Parts
I, II, and III, concluding that a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate. Pp. 6-17.
(A)
Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan, which, following its formation in 1866, imposed a reign of terror throughout the South, whipping, threatening, and murdering blacks, southern whites who disagreed with the Klan, and "carpetbagger" northern whites. The Klan has often used cross burnings as a tool of intimidation and a threat of impending violence, although such burnings have also remained potent symbols of shared group identity and ideology, serving as a central feature of Klan gatherings.
To this day, however, regardless of whether the message is a political one or is also meant to intimidate, the burning of a cross is a "symbol of hate." Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 771.
While cross burning does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful. Pp. 6-11.
(B)
The protections the First Amendment affords speech and expressive conduct are not absolute. This Court has long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e.g., Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572. For example, the First Amendment permits a State to ban "true threats," e.g., Watts v. United States, 394 U. S. 705, 708 (per curiam), which 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, e.g., id., at 708. 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 the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. R. A. V., supra, at 388. 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. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As the history of cross burning in this country shows, that act is often intimidating, intended to create a pervasive fear in victims that they are a target of violence. Pp. 11-14.
©
The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. A ban on cross burning carried out with the intent to intimidate is fully consistent with this Court's holding in R. A. V. Contrary to the Virginia Supreme Court's ruling, R. A. V. did not hold that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. Rather, the Court specifically stated that a particular type of content discrimination does not violate the First Amendment when the basis for it consists entirely of the very reason its entire class of speech is proscribable. 505 U. S., at 388. For example, it is permissible to prohibit only that obscenity that is most patently offensive in its prurience--i.e., that which involves the most lascivious displays of sexual activity. Ibid. 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 disfavored topics." Id., at 391. 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." Ibid. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. Pp. 14-17.
Justice O'Connor, joined by The Chief Justice, Justice Stevens, and Justice
Breyer, concluded in Parts IV and V that the Virginia statute's prima facie evidence provision, as interpreted through the jury instruction given in respondent Black's case and as applied therein, is unconstitutional on its face.
Because the instruction is the same as the Commonwealth's Model Jury Instruction, and because the Virginia Supreme Court had the opportunity to expressly disavow it, the instruction's construction of the prima facie provision is as binding on this Court as if its precise words had been written into the statute. E.g., Terminiello v. Chicago, 337 U. S. 1, 4. As construed by the instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The provision permits a jury to convict in every cross burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. It permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. As so interpreted, it would create an unacceptable risk of the suppression of ideas. E.g., Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 965, n. 13. The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation, or it may mean only that the person is engaged in core political speech. The prima facie evidence provision blurs the line between these meanings, ignoring all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut.
Thus, Black's conviction cannot stand, and the judgment as to him is affirmed.
Conversely, Elliott's jury did not receive any instruction on the prima facie provision, and the provision was not an issue in O'Mara's case because he pleaded guilty. The possibility that the provision is severable, and if so, whether Elliott and O'Mara could be retried under the statute, is left open. Also left open is the theoretical possibility that, on remand, the Virginia Supreme Court could interpret the prima facie provision in a manner that would avoid the constitutional objections described above. Pp. 17-22.
Justice Scalia agreed that this Court should vacate and remand the judgment
of the Virginia Supreme Court with respect to respondents Elliott and O'Mara so that that court can have an opportunity authoritatively to construe the cross-burning statute's prima-facie-evidence provision. Pp. 1, 12.
Justice Souter, joined by Justice Kennedy and Justice Ginsburg, concluded
that the Virginia statute is unconstitutional and cannot be saved by any exception under R. A. V. v. St. Paul, 505 U. S. 377, and therefore concurred in the Court's judgment insofar as it affirms the invalidation of respondent Black's conviction. Pp. 1, 8.
O'Connor, J., announced the judgment of the Court and delivered the opinion
of the Court with respect to Parts I, II, and III, in which Rehnquist, C. J., and Stevens, Scalia, and Breyer, JJ., joined, and an opinion with respect to Parts IV and V, in which Rehnquist, C. J, and Stevens and Breyer, JJ., joined. Stevens, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Thomas, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Kennedy and Ginsburg, JJ., joined. Thomas, J., filed a dissenting opinion.
VIRGINIA, PETITIONER v. BARRY ELTON BLACK, RICHARD J. ELLIOTT, and JONATHAN O'MARA on writ of certiorari to the supreme court of virginia [April 7, 2003]
Justice O'Connor announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which The Chief Justice, Justice Stevens, and Justice Breyer join. In this case we consider whether the Commonwealth of Virginia's statute banning cross burning with "an intent to intimidate a person or group of persons" violates the First Amendment. Va. Code Ann. ç18.2-423 (1996). We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.
I
Respondents Barry Black, Richard Elliott, and Jonathan O'Mara were
convicted separately of violating Virginia's cross-burning statute, ç18.2-423. That statute provides: "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." On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. Twenty-five to thirty people attended this gathering, which occurred on private property with the permission of the owner, who was in attendance. The property was located on an open field just off Brushy Fork Road (State Highway 690) in Cana, Virginia. When the sheriff of Carroll County learned that a Klan rally was occurring in his county, he went to observe it from the side of the road. During the approximately one hour that the sheriff was present, about 40 to 50 cars passed the site, a "few" of which stopped to ask the sheriff what was happening on the property. App. 71. Eight to ten houses were located in the vicinity of the rally. Rebecca Sechrist, who was related to the owner of the property where the rally took place, "sat and watched to see wha[t] [was] going on" from the lawn of her in-laws' house. She looked on as the Klan prepared for the gathering and subsequently conducted the rally itself. Id., at 103. During the rally, Sechrist heard Klan members speak about "what they were" and "what they believed in." Id., at 106. The speakers "talked real bad about the blacks and the Mexicans." Id., at 109. One speaker told the assembled gathering that "he would love to take a .30/.30 and just random[ly] shoot the blacks." Ibid. The speakers also talked about "President Clinton and Hillary Clinton," and about how their tax money "goes to ... the black people." Ibid. Sechrist testified that this language made her "very ... scared." Id., at 110. At the conclusion of the rally, the crowd circled around a 25- to 30-foot cross. The cross was between 300 and 350 yards away from the road. According to the sheriff, the cross "then all of a sudden ... went up in a flame." Id., at 71. As the cross burned, the Klan played Amazing Grace over the loudspeakers. Sechrist stated that the cross burning made her feel "awful" and "terrible." Id., at 110. When the sheriff observed the cross burning, he informed his deputy that they needed to "find out who's responsible and explain to them that they cannot do this in the State of Virginia." Id., at 72. The sheriff then went down the driveway, entered the rally, and asked "who was responsible for burning the cross." Id., at 74. Black responded, "I guess I am because I'm the head of the rally." Ibid. The sheriff then told Black, "[T]here's a law in the State of Virginia that you cannot burn a cross and I'll have to place you under arrest for this." Ibid. Black was charged with burning a cross with the intent of intimidating a person or group of persons, in violation of ç18.2-423. At his trial, the jury was instructed that "intent to intimidate means the motivation to intentionally put a person or a group of persons in fear of bodily harm. Such fear must arise from the willful conduct of the accused rather than from some mere temperamental timidity of the victim." Id., at 146. The trial court also instructed the jury that "the burning of a cross by itself is sufficient evidence from which you may infer the required intent." Ibid. When Black objected to this last instruction on First Amendment grounds, the prosecutor responded that the instruction was "taken straight out of the [Virginia] Model Instructions." Id., at 134. The jury found Black guilty, and fined him $2,500. The Court of Appeals of Virginia affirmed Black's conviction. Rec. No. 1581-99- 3 (Va. App., Dec. 19, 2000), App. 201. On May 2, 1998, respondents Richard Elliott and Jonathan O'Mara, as well as a third individual, attempted to burn a cross on the yard of James Jubilee. Jubilee, an African-American, was Elliott's next-door neighbor in Virginia Beach, Virginia. Four months prior to the incident, Jubilee and his family had moved from California to Virginia Beach. Before the cross burning, Jubilee spoke to Elliott's mother to inquire about shots being fired from behind the Elliott home. Elliott's mother explained to Jubilee that her son shot firearms as a hobby, and that he used the backyard as a firing range. On the night of May 2, respondents drove a truck onto Jubilee's property, planted a cross, and set it on fire. Their apparent motive was to "get back" at Jubilee for complaining about the shooting in the backyard. Id., at 241. Respondents were not affiliated with the Klan. The next morning, as Jubilee was pulling his car out of the driveway, he noticed the partially burned cross approximately 20 feet from his house. After seeing the cross, Jubilee was "very nervous" because he "didn't know what would be the next phase," and because "a cross burned in your yard ... tells you that it's just the first round." Id., at 231. Elliott and O'Mara were charged with attempted cross burning and conspiracy to commit cross burning. O'Mara pleaded guilty to both counts, reserving the right to challenge the constitutionality of the cross-burning statute. The judge sentenced O'Mara to 90 days in jail and fined him $2,500. The judge also suspended 45 days of the sentence and $1,000 of the fine. At Elliott's trial, the judge originally ruled that the jury would be instructed "that the burning of a cross by itself is sufficient evidence from which you may infer the required intent." Id., at 221-222. At trial, however, the court instructed the jury that the Commonwealth must prove that "the defendant intended to commit cross burning," that "the defendant did a direct act toward the commission of the cross burning," and that "the defendant had the intent of intimidating any person or group of persons." Id., at 250. The court did not instruct the jury on the meaning of the word "intimidate," nor on the prima facie evidence provision of ç18.2-423. The jury found Elliott guilty of attempted cross burning and acquitted him of conspiracy to commit cross burning. It sentenced Elliott to 90 days in jail and a $2,500 fine. The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara. O'Mara v. Commonwealth, 33 Va. App. 525, 535 S. E. 2d 175 (2000). Each respondent appealed to the Supreme Court of Virginia, arguing that ç18.2-423 is facially unconstitutional. The Supreme Court of Virginia consolidated all three cases, and held that the statute is unconstitutional on its face. 262 Va. 764, 553 S. E. 2d 738 (2001). It held that the Virginia cross-burning statute "is analytically indistinguishable from the ordinance found unconstitutional in R. A. V. [v. St. Paul, 505 U. S. 377 (1992)]." Id., at 772, 553 S. E. 2d, at 742. The Virginia statute, the court held, discriminates on the basis of content since it "selectively chooses only cross burning because of its distinctive message." Id., at 774, 553 S. E. 2d, at 744. The court also held that the prima facie evidence provision renders the statute overbroad because "[t]he enhanced probability of prosecution under the statute chills the expression of protected speech." Id., at 777, 553 S. E. 2d, at 746. Three justices dissented, concluding that the Virginia cross-burning statute passes constitutional muster because it proscribes only conduct that constitutes a true threat. The justices noted that unlike the ordinance found unconstitutional in R. A. V. v. St. Paul, 505 U. S. 377 (1992), the Virginia statute does not just target cross burning "on the basis of race, color, creed, religion or gender." 262 Va., at 791, 553 S. E. 2d, at 791. Rather, "the Virginia statute applies to any individual who burns a cross for any reason provided the cross is burned with the intent to intimidate." Ibid. The dissenters also disagreed with the majority's analysis of the prima facie provision because the inference alone "is clearly insufficient to establish beyond a reasonable doubt that a defendant burned a cross with the intent to intimidate." Id., at 795, 553 S. E. 2d, at 756. The dissent noted that the burden of proof still remains on the Commonwealth to prove intent to intimidate. We granted certiorari. 535 U. S. 1094 (2002).1
II
Cross burning originated in the 14th century as a means for Scottish tribes
to signal each other. See M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia 145 (1991). Sir Walter Scott used cross burnings for dramatic effect in The Lady of the Lake, where the burning cross signified both a summons and a call to arms. See W. Scott, The Lady of The Lake, canto third. Cross burning in this country, however, long ago became unmoored from its Scottish ancestry. Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan. The first Ku Klux Klan began in Pulaski, Tennessee, in the spring of 1866. Although the Ku Klux Klan started as a social club, it soon changed into something far different. The Klan fought Reconstruction and the corresponding drive to allow freed blacks to participate in the political process. Soon the Klan imposed "a veritable reign of terror" throughout the South. S. Kennedy, Southern Exposure 31 (1991) (hereinafter Kennedy). The Klan employed tactics such as whipping, threatening to burn people at the stake, and murder. W. Wade, The Fiery Cross: The Ku Klux Klan in America 48-49 (1987) (hereinafter Wade). The Klan's victims included blacks, southern whites who disagreed with the Klan, and "carpetbagger" northern whites. The activities of the Ku Klux Klan prompted legislative action at the national level. In 1871, "President Grant sent a message to Congress indicating that the Klan's reign of terror in the Southern States had rendered life and property insecure." Jett v. Dallas Independent School Dist., 491 U. S. 701, 722 (1989) (internal quotation marks and alterations omitted). In response, Congress passed what is now known as the Ku Klux Klan Act. See "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes," 17 Stat. 13 (now codified at 42 U. S. C. çç1983, 1985, and 1986). President Grant used these new powers to suppress the Klan in South Carolina, the effect of which severely curtailed the Klan in other States as well. By the end of Reconstruction in 1877, the first Klan no longer existed. The genesis of the second Klan began in 1905, with the publication of Thomas Dixon's The Clansmen: An Historical Romance of the Ku Klux Klan. Dixon's book was a sympathetic portrait of the first Klan, depicting the Klan as a group of heroes "saving" the South from blacks and the "horrors" of Reconstruction. Although the first Klan never actually practiced cross burning, Dixon's book depicted the Klan burning crosses to celebrate the execution of former slaves. Id., at 324-326; see also Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 770-771 (1995) (Thomas, J., concurring). Cross burning thereby became associated with the first Ku Klux Klan. When D. W. Griffith turned Dixon's book into the movie The Birth of a Nation in 1915, the association between cross burning and the Klan became indelible. In addition to the cross burnings in the movie, a poster advertising the film displayed a hooded Klansman riding a hooded horse, with his left hand holding the reins of the horse and his right hand holding a burning cross above his head. Wade 127. Soon thereafter, in November 1915, the second Klan began. From the inception of the second Klan, cross burnings have been used to communicate both threats of violence and messages of shared ideology. The first initiation ceremony occurred on Stone Mountain near Atlanta, Georgia. While a 40-foot cross burned on the mountain, the Klan members took their oaths of loyalty. See Kennedy 163. This cross burning was the second recorded instance in the United States. The first known cross burning in the country had occurred a little over one month before the Klan initiation, when a Georgia mob celebrated the lynching of Leo Frank by burning a "gigantic cross" on Stone Mountain that was "visible throughout" Atlanta. Wade 144 (internal quotation marks omitted). The new Klan's ideology did not differ much from that of the first Klan. As one Klan publication emphasized, "We avow the distinction between [the] races, ... and we shall ever be true to the faithful maintenance of White Supremacy and will strenuously oppose any compromise thereof in any and all things." Id., at 147-148 (internal quotation marks omitted). Violence was also an elemental part of this new Klan. By September 1921, the New York World newspaper documented 152 acts of Klan violence, including 4 murders, 41 floggings, and 27 tar-and-featherings. Wade 160. Often, the Klan used cross burnings as a tool of intimidation and a threat of impending violence. For example, in 1939 and 1940, the Klan burned crosses in front of synagogues and churches. See Kennedy 175. After one cross burning at a synagogue, a Klan member noted that if the cross burning did not "shut the Jews up, we'll cut a few throats and see what happens." Ibid. (internal quotation marks omitted). In Miami in 1941, the Klan burned four crosses in front of a proposed housing project, declaring, "We are here to keep negroes out of your town ... . When the law fails you, call on us." Id., at 176 (internal quotation marks omitted). And in Alabama in 1942, in "a whirlwind climax to weeks of flogging and terror," the Klan burned crosses in front of a union hall and in front of a union leader's home on the eve of a labor election. Id., at 180. These cross burnings embodied threats to people whom the Klan deemed antithetical to its goals. And these threats had special force given the long history of Klan violence. The Klan continued to use cross burnings to intimidate after World War II. In one incident, an African-American "school teacher who recently moved his family into a block formerly occupied only by whites asked the protection of city police ... after the burning of a cross in his front yard." Richmond News Leader, Jan. 21, 1949, p. 19, App. 312. And after a cross burning in Suffolk, Virginia during the late 1940's, the Virginia Governor stated that he would "not allow any of our people of any race to be subjected to terrorism or intimidation in any form by the Klan or any other organization." D. Chalmers, Hooded Americanism: The History of the Ku Klux Klan 333 (1980) (hereinafter Chalmers). These incidents of cross burning, among others, helped prompt Virginia to enact its first version of the cross-burning statute in 1950. The decision of this Court in Brown v. Board of Education, 347 U. S. 483 (1954), along with the civil rights movement of the 1950's and 1960's, sparked another outbreak of Klan violence. These acts of violence included bombings, beatings, shootings, stabbings, and mutilations. See, e.g., Chalmers 349-350; Wade 302-303. Members of the Klan burned crosses on the lawns of those associated with the civil rights movement, assaulted the Freedom Riders, bombed churches, and murdered blacks as well as whites whom the Klan viewed as sympathetic toward the civil rights movement. Throughout the history of the Klan, cross burnings have also remained potent symbols of shared group identity and ideology. The burning cross became a symbol of the Klan itself and a central feature of Klan gatherings. According to the Klan constitution (called the kloran), the "fiery cross" was the "emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and principles we have espoused." The Ku Klux Klan Hearings before the House Committee on Rules, 67th Cong., 1st Sess., 114, Exh. G (1921); see also Wade 419. And the Klan has often published its newsletters and magazines under the name The Fiery Cross. See Wade 226, 489. At Klan gatherings across the country, cross burning became the climax of the rally or the initiation. Posters advertising an upcoming Klan rally often featured a Klan member holding a cross. See N. MacLean, Behind the Mask of Chivalry: The Making of the Second Ku Klux Klan 142-143 (1994). Typically, a cross burning would start with a prayer by the "Klavern" minister, followed by the singing of Onward Christian Soldiers. The Klan would then light the cross on fire, as the members raised their left arm toward the burning cross and sang The Old Rugged Cross. Wade 185. Throughout the Klan's history, the Klan continued to use the burning cross in their ritual ceremonies. For its own members, the cross was a sign of celebration and ceremony. During a joint Nazi-Klan rally in 1940, the proceeding concluded with the wedding of two Klan members who "were married in full Klan regalia beneath a blazing cross." Id., at 271. In response to antimasking bills introduced in state legislatures after World War II, the Klan burned crosses in protest. See Chalmers 340. On March 26, 1960, the Klan engaged in rallies and cross burnings throughout the South in an attempt to recruit 10 million members. See Wade 305. Later in 1960, the Klan became an issue in the third debate between Richard Nixon and John Kennedy, with both candidates renouncing the Klan. After this debate, the Klan reiterated its support for Nixon by burning crosses. See id., at 309. And cross burnings featured prominently in Klan rallies when the Klan attempted to move toward more nonviolent tactics to stop integration. See id., at 323; cf. Chalmers 368-369, 371-372, 380, 384. In short, a burning cross has remained a symbol of Klan ideology and of Klan unity. To this day, regardless of whether the message is a political one or whether the message is also meant to intimidate, the burning of a cross is a "symbol of hate." Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S., at 771 (Thomas, J., concurring). And while cross burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed. For example, when a cross burning is directed at a particular person not affiliated with the Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical. The person who burns a cross directed at a particular person often is making a serious threat, meant to coerce the victim to comply with the Klan's wishes unless the victim is willing to risk the wrath of the Klan. Indeed, as the cases of respondents Elliott and O'Mara indicate, individuals without Klan affiliation who wish to threaten or menace another person sometimes use cross burning because of this association between a burning cross and violence. In sum, while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful.
III
A The First Amendment, applicable to the States through the Fourteenth Amendment, provides that "Congress shall make no law ... abridging the freedom of speech." The hallmark of the protection of free speech is to allow "free trade in ideas"--even ideas that the overwhelming majority of people might find distasteful or discomforting. Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting); see also Texas v. Johnson, 491 U. S. 397, 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Thus, the First Amendment "ordinarily" denies a State "the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence." Whitney v. California, 274 U. S. 357, 374 (1927) (Brandeis, J., dissenting). The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. See, e.g., R. A. V. v. City of St. Paul, 505 U. S., at 382; Texas v. Johnson, supra, at 405-406; United States v. O'Brien, 391 U. S. 367, 376-377 (1968); Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505 (1969). The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e.g., Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942) ("There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem"). 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.' " R. A. V. v. City of St. Paul, supra, at 382-383 (quoting Chaplinsky v. New Hampshire, supra, at 572). Thus, for example, a State may punish those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572; see also R. A. V. v. City of St. Paul, supra, at 383 (listing limited areas where the First Amendment permits restrictions on the content of speech). We have consequently held that fighting words-- "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction"--are generally proscribable under the First Amendment. Cohen v. California, 403 U. S. 15, 20 (1971); see also Chaplinsky v. New Hampshire, supra, at 572. Furthermore, "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam). And the First Amendment also permits a State to ban a "true threat." Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (internal quotation marks omitted); accord, R. A. V. v. City of St. Paul, supra, at 388 ("[T]hreats of violence are outside the First Amendment"); Madsen v. Women's Health Center, Inc., 512 U. S. 753, 774 (1994); Schenck v. Pro-Choice Network of Western N. Y., 519 U. S. 357, 373 (1997). "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, supra, at 708 ("political hyberbole" is not a true threat); R. A. V. v. City of St. Paul, 505 U. S., at 388. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats "protect[s] 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. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As noted in Part II, supra, the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence.
B The Supreme Court of Virginia ruled that in light of R. A. V. v. City of St. Paul, supra, even if it is constitutional to ban cross burning in a content-neutral manner, the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint. 262 Va., at 771-776, 553 S. E. 2d, at 742-745. It is true, as the Supreme Court of Virginia held, that the burning of a cross is symbolic expression. The reason why the Klan burns a cross at its rallies, or individuals place a burning cross on someone else's lawn, is that the burning cross represents the message that the speaker wishes to communicate. Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner.2 The fact that cross burning is symbolic expression, however, does not resolve the constitutional question. The Supreme Court of Virginia relied upon R. A. V. v. City of St. Paul, supra, to conclude that once a statute discriminates on the basis of this type of content, the law is unconstitutional. We disagree. In R. A. V., we held that a local ordinance that banned certain symbolic conduct, including cross burning, when done with the knowledge that such conduct would " 'arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender' " was unconstitutional. Id., at 380 (quoting the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code ç292.02 (1990)). We held that the ordinance did not pass constitutional muster because it discriminated on the basis of content by targeting only those individuals who "provoke violence" on a basis specified in the law. 505 U. S., at 391. The ordinance did not cover "[t]hose who wish to use 'fighting words' in connection with other ideas--to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality." Ibid. This content-based discrimination was unconstitutional because it allowed the city "to impose special prohibitions on those speakers who express views on disfavored subjects." Ibid. We did not hold in R. A. V. that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. Rather, we specifically stated that some types of content discrimination did not violate the First Amendment: "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. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class." Id., at 388. Indeed, we noted that it would be constitutional to ban only a particular type of threat: "[T]he Federal Government can criminalize only those threats of violence that are directed against the President ... since the reasons why threats of violence are outside the First Amendment ... have special force when applied to the person of the President." Ibid. And a State may "choose to prohibit only that obscenity which is the most patently offensive in its prurience--i.e., that which involves the most lascivious displays of sexual activity." Ibid. (emphasis in original). Consequently, while the holding of R. A. V. does not permit a State to ban only obscenity based on "offensive political messages," ibid., or "only those threats against the President that mention his policy on aid to inner cities," ibid., the First Amendment permits content discrimination "based on the very reasons why the particular class of speech at issue ... is proscribable," id., at 393. 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 disfavored topics." Id., at 391. 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." Ibid. Moreover, as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. See, e.g., supra, at 8 (noting the instances of cross burnings directed at union members); State v. Miller, 6 Kan. App. 2d 432, 629 P. 2d 748 (1981) (describing the case of a defendant who burned a cross in the yard of the lawyer who had previously represented him and who was currently prosecuting him). Indeed, in the case of Elliott and O'Mara, it is at least unclear whether the respondents burned a cross due to racial animus. See 262 Va., at 791, 553 S. E. 2d, at 753 (Hassell, J., dissenting) (noting that "these defendants burned a cross because they were angry that their neighbor had complained about the presence of a firearm shooting range in the Elliott's yard, not because of any racial animus").
The First Amendment permits Virginia to outlaw cross burnings done with the
intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R. A. V. and is proscribable under the First Amendment.
IV
The Supreme Court of Virginia ruled in the alternative that Virginia's
cross-burning statute was unconstitutionally overbroad due to its provision stating that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. ç18.2-423 (1996). The Commonwealth added the prima facie provision to the statute in 1968. The court below did not reach whether this provision is severable from the rest of the cross-burning statute under Virginia law. See ç1-17.1 ("The provisions of all statutes are severable unless ... it is apparent that two or more statutes or provisions must operate in accord with one another"). In this Court, as in the Supreme Court of Virginia, respondents do not argue that the prima facie evidence provision is unconstitutional as applied to any one of them. Rather, they contend that the provision is unconstitutional on its face. The Supreme Court of Virginia has not ruled on the meaning of the prima facie evidence provision. It has, however, stated that "the act of burning a cross alone, with no evidence of intent to intimidate, will nonetheless suffice for arrest and prosecution and will insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief." 262 Va., at 778, 553 S. E. 2d, at 746. The jury in the case of Richard Elliott did not receive any instruction on the prima facie evidence provision, and the provision was not an issue in the case of Jonathan O'Mara because he pleaded guilty. The court in Barry Black's case, however, instructed the jury that the provision means: "The burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." App. 196. This jury instruction is the same as the Model Jury Instruction in the Commonwealth of Virginia. See Virginia Model Jury Instructions, Criminal, Instruction No. 10.250 (1998 and Supp. 2001). The prima facie evidence provision, as interpreted by the jury instruction, renders the statute unconstitutional. Because this jury instruction is the Model Jury Instruction, and because the Supreme Court of Virginia had the opportunity to expressly disavow the jury instruction, the jury instruction's construction of the prima facie provision "is a ruling on a question of state law that is as binding on us as though the precise words had been written into" the statute. E.g., Terminiello v. Chicago, 337 U. S. 1, 4 (1949) (striking down an ambiguous statute on facial grounds based upon the instruction given to the jury); see also New York v. Ferber, 458 U. S. 747, 768 n. 21 (1982) (noting that Terminiello involved a facial challenge to the statute); Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 965, n. 13 (1984); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 845-846, n. 8 (1970); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 10-12; Blakey & Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 B. Y. U. L. Rev. 829, 883, n. 133. As construed by the jury instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. It is apparent that the provision as so interpreted " 'would create an unacceptable risk of the suppression of ideas.' " Secretary of State of Md. v. Joseph H. Munson Co., supra, at 965, n. 13 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 797 (1984)). The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that a State will prosecute--and potentially convict--somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect. As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, "**urning a cross at a political rally would almost certainly be protected expression." R. A. V. v. St. Paul, 505 U. S., at 402, n. 4 (White, J., concurring in judgment) (citing Brandenburg v. Ohio, 395 U. S., at 445). Cf. National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott's The Lady of the Lake. The prima facie provision makes no effort to distinguish among these different types of cross burnings. It does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim. It does not distinguish between a cross burning at a public rally or a cross burning on a neighbor's lawn. It does not treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers. It allows a jury to treat a cross burning on the property of another with the owner's acquiescence in the same manner as a cross burning on the property of another without the owner's permission. To this extent I agree with Justice Souter that the prima facie evidence provision can "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." Post, at 6 (opinion concurring in judgment and dissenting in part). It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, "The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot's hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law." Casper, Gerry, 55 Stan. L. Rev. 647, 649 (2002) (internal quotation marks omitted). The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut. For these reasons, the prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face. We recognize that the Supreme Court of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision. Unlike Justice Scalia, we refuse to speculate on whether any interpretation of the prima facie evidence provision would satisfy the First Amendment. Rather, all we hold is that because of the interpretation of the prima facie evidence provision given by the jury instruction, the provision makes the statute facially invalid at this point. We also recognize the theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. We leave open that possibility. We also leave open the possibility that the provision is severable, and if so, whether Elliott and O'Mara could be retried under ç18.2-423.
V
With respect to Barry Black, we agree with the Supreme Court of Virginia
that his conviction cannot stand, and we affirm the judgment of the Supreme Court of Virginia. With respect to Elliott and O'Mara, we vacate the judgment of the Supreme Court of Virginia, and remand the case for further proceedings. It is so ordered.
VIRGINIA, PETITIONER v. BARRY ELTON BLACK, RICHARD J. ELLIOTT, and JONATHAN O'MARA on writ of certiorari to the supreme court of virginia [April 7, 2003]
Justice Stevens, concurring.
Cross burning with "an intent to intimidate," Va. Code Ann. ç18.2-423
(1996), unquestionably qualifies as the kind of threat that is unprotected by the First Amendment. For the reasons stated in the separate opinions that Justice White and I wrote in R. A. V. v. St. Paul, 505 U. S. 377 (1992), that simple proposition provides a sufficient basis for upholding the basic prohibition in the Virginia statute even though it does not cover other types of threatening expressive conduct. With this observation, I join Justice O'Connor's opinion.
VIRGINIA, PETITIONER v. BARRY ELTON BLACK, RICHARD J. ELLIOTT, and JONATHAN O'MARA on writ of certiorari to the supreme court of virginia [April 7, 2003]
Justice Thomas, dissenting.
In every culture, certain things acquire meaning well beyond what outsiders
can comprehend. That goes for both the sacred, see Texas v. Johnson, 491 U. S. 397, 422-429 (1989) (Rehnquist, C. J., dissenting) (describing the unique position of the American flag in our Nation's 200 years of history), and the profane. I believe that cross burning is the paradigmatic example of the latter.
I
Although I agree with the majority's conclusion that it is constitutionally
permissible to "ban ... cross burning carried out with intent to intimidate," see maj. op., at 17, I believe that the majority errs in imputing an expressive component to the activity in question, see maj. op., at 17 (relying on one of the exceptions to the First Amendment's prohibition on content-based discrimination outlined in R. A. V. v. St. Paul, 505 U. S. 377 (1992)). In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means. A conclusion that the statute prohibiting cross burning with intent to intimidate sweeps beyond a prohibition on certain conduct
into the zone of expression overlooks not only the words of the statute but also reality.
A "In holding [the ban on cross burning with intent to intimidate] unconstitutional, the Court ignores Justice Holmes' familiar aphorism that 'a page of history is worth a volume of logic.' " Texas v. Johnson, supra, at 421 (Rehnquist, C. J., dissenting) (quoting New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921)). "The world's oldest, most persistent terrorist organization is not European or even Middle Eastern in origin. Fifty years before the Irish Republican Army was organized, a century before Al Fatah declared its holy war on Israel, the Ku Klux Klan was actively harassing, torturing and murdering in the United States. Today . . . its members remain fanatically committed to a course of violent opposition to social progress and racial equality in the United States." M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia vii (1991). To me, the majority's brief history of the Ku Klux Klan only reinforces this common understanding of the Klan as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those its dislikes, uses the most brutal of methods. Such methods typically include cross burning--"a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan." Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995) (Thomas, J., concurring). For those not easily frightened, cross burning has been followed by more extreme measures, such as beatings and murder. Juan Williams, Eyes on the Prize: America's Civil Rights Years 1954-1965, at 39 (1965). As the Solicitor General points out, the association between acts of intimidating cross burning and violence is well documented in recent American history. Brief for the United States at 3-4 & n. 2.1 Indeed, the connection between cross burning and violence is well ingrained, and lower courts have so recognized: "After the mother saw the burning cross, she was crying on her knees in the living room. [She] felt feelings of frustration and intimidation and feared for her husband's life. She testified what the burning cross symbolized to her as a black American: 'murder, hanging, rape, lynching. Just about anything bad that you can name. It is the worst thing that can happen to a person.' Mr. Heisser told the probation officer that at the time of the occurrence, if the family did not leave, he believed someone would return to commit murder. ... Seven months after the incident, the family still lived in fear. . . . This is a reaction reasonably to be anticipated from this criminal conduct." United States v. Skillman, 922 F.2d 1370, 1378 (CA9 1991) (emphasis added). But the perception that a burning cross is a threat and a precursor of worse things to come is not limited to blacks. Because the modern Klan expanded the list of its enemies beyond blacks and "radical[s]," to include Catholics, Jews, most immigrants, and labor unions, Newton & Newton, supra, at ix, a burning cross is now widely viewed as a signal of impending terror and lawlessness. I wholeheartedly agree with the observation made by the Commonwealth of Virginia that "A white, conservative, middle-class Protestant, waking up at night to find a burning cross outside his home, will reasonably understand that someone is threatening him. His reaction is likely to be very different than if he were to find, say, a burning circle or square. In the latter case, he may call the fire department. In the former, he will probably call the police." Brief of Petitioner, at 26. In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims well-grounded fear of physical violence.
B Virginia's experience has been no exception. In Virginia, though facing widespread opposition in 1920s, the KKK developed localized strength in the southeastern part of the State, where there were reports of scattered raids and floggings. Newton & Newton, supra, at 585. Although the KKK was disbanded at the national level in 1944, id., a series of cross burnings in Virginia took place between 1949 and 1952. See Black v. Virginia, 262 Va. 764, 771 n.2 (2001) (collecting newspaper accounts of cross burnings in Virginia during that time period); see also Cross Fired Near Suffolk Stirs Probe: Burning Second in Past Week, Richmond Times-Dispatch, Jan. 23, 1949, ç 2, at 1 (noting that the second of reported cross burning in 1949 "brought to eight the number which have occurred in Virginia during the past year. Six of the incidents have occurred in Nansemond County. Four crosses were burned near Suffolk last Spring, and about 150 persons took part in the December 11 cross burning near Whaleyville. No arrests have been made in connection with any of the incidents."). Most of the crosses were burned on the lawns of black families, who either were business owners or lived in predominantly white neighborhoods. See Police Aid Requested by Teacher: Cross is Burned in Negro's Yard, Richmond News Leader, Jan. 21, 1949, at 19; Cross Fired Near Suffolk Stirs Probe: Burning Second in Past Week, Richmond Times-Dispatch, Jan. 23, 1949, ç 2, at 1; Cross is Burned at Reedville Home, Richmond News Leader, Apr. 14, 1951, at 1. At least one of the cross burnings was accompanied by a shooting. Cross Burned at Manakin; Third in Area, Richmond Times-Dispatch, Feb. 26, 1951, at 4. The crosses burned near residences were about five to six feet tall; while a "huge cross reminiscent of the Ku Klux Klan days" burned "atop a hill" as part of the initiation ceremony of the secret organization of the Knights of Kavaliers, was twelve feet tall. Huge Cross is Burned on Hill Just South of Covington, Richmond Times-Dispatch, Apr. 14, 1950, at 6. These incidents were, in the words of the time, "terroristic [sic] . . . un-American act[s], designed to intimidate Negroes from seeking their rights as citizens." Police Aid Requested By Teacher, Cross is Burned on Negro's Yard, Richmond News-Leader, Jan. 21, 1949, at 19 (emphasis added). In February 1952, in light of this series of cross burnings and attendant reports that the Klan, "long considered dead in Virginia, is being revitalized in Richmond," Governor Battle announced that "Virginia 'might well consider passing legislation' to restrict the activities of the Ku Klux Klan." 'State Might Well Consider' Restrictions on Ku Klux Klan, Governor Battle Comments, Richmond Times-Dispatch, Feb. 6, 1952, at 7. As newspapers reported at the time, the bill was "to ban the burning of crosses and other similar evidences of terrorism." Name Rider Approved by House, Richmond News Leader, Feb. 23, 1952, at 1 (emphasis added). The bill was presented to the House of Delegates by a former FBI agent and future two-term Governor, Delegate Mills E. Godwin, Jr. "Godwin said law and order in the State were impossible if organized groups could create fear by intimidation." Bill to Curb KKK Passed By the House, Action is Taken Without Debate, Richmond Times Dispatch, Mar. 8, 1952, at 5 (emphasis added). That in the early 1950s the people of Virginia viewed cross burning as creating an intolerable atmosphere of terror is not surprising: Although the cross took on some religious significance in the 1920's when the Klan became connected with certain southern white clergy, by the postwar period it had reverted to its original function "as an instrument of intimidation." W. Wade, The Fiery Cross: The Ku Klux Klan in America 185, 279 (1987). Strengthening Delegate Godwin's explanation, as well as my conclusion, that the legislature sought to criminalize terrorizing conduct is the fact that at the tim
2003-05-04 03:12 | User Profile
Since this thread is closely related to Edgar J. Steel's * In Defense of Cross Burning,* I will post it here.
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In Defense of Cross Burning
by Edgar J. Steele
May 3, 2003
Beauty is in the eye of the beholder. -- Proverb
Ever known a particularly attractive person who became less and less attractive as you got to know them? In my misspent youth, I often found myself drawn to one beautiful woman or another. She would seem, at first, too perfect. As I got to know her, though, and saw how she treated others, not to mention me, it would become clear that her nose was misshapen or her thighs too fat or her manner ungainly or, perhaps, her facial pores fairly yawned open, until finally I wondered if there was anything about her that physically was attractive. Yet, I noticed that other men still found these women as attractive as had I at one time.
Now, as the years press on, I still notice pretty girls, but am more readily drawn to the sort of beauty that manifests after the fact of one's initial acquaintance. It is amazing how many seemingly drab people are, in reality, among the most beautiful, once afforded the opportunity to unfold their wings and soar.
I tell my children, in all seriousness, that physical beauty is a curse, because beautiful people glide through life, unchallenged, never needing to develop personality or ethical principles beyond the most mundane. Singularly unattractive is the former beauty queen on the wrong side of forty, still expecting the world to bow and scrape.
Luckily, I remained single until I was 39, when I was able clearly to see inner beauty, regardless of one's exterior, and somehow persuaded that rarest of females, one with both outer and inner beauty, to marry me. That was 18 years ago, for those keeping score.
Finding beauty in the midst of ugliness usually is difficult, but when it comes to Free Speech, that is the order of the day. You see, it is only unpopular speech, usually of the most despicable sort, that ever causes the censors to unsheath their knives. Popular speech glides through life, even if oppressive, like a teenage queen. Witness today's usage of "unpatriotic" and "antisemitic" to silence those whose outlooks are in the highest tradition of America's forefathers.
It is only the most reviled among us, usually reviled precisely due to what they say, that come in for legal lynching in the name of tolerance. None are more intolerant than those who preach tolerance. For the rest of us, of course, tolerance is a nonissue, as it should be for all. And the purveyors of tolerance are among the more admired members of society, too, like those beauty queens who get by without trying.
I often say that the First Amendment is the only one left with any life; even so, it is lying prone and breathing shallowly.
The other day, the US Supreme Court dealt free speech another mortal blow when it ruled, in Virginia v. Black, that states may outlaw cross burning. This ruling flies directly in the face of a long line of flag desecration rulings, which hold that flag burning is symbolic speech, thus deserving of First Amendment protection. So, too, is cross burning a form of symbolic speech, of course. Why else would one burn a cross, save to make a statement? Maybe not one with which you agree, but a statement, nonetheless.
Speaking for the Supremes, Justice Clarence Thomas, the only black member of the bench, said, "Just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point." Thus the court advances the frontier of American thought crime yet another notch. Now, if the perps in this case had burned down another person's cross, I might cede Justice Thomas his point, but the leap of faith required to bridge the logical gap in his statement is simply too terrifying for me to contemplate.
If I don't "hate," can I still burn a cross? How does one divine my secret thought while performing my symbolic speech? Is this like saying the N-word, which is okay if you're black, but now a hate crime if you're white? Can the new law properly be called "Burning while white?" Talk about racial profiling!
Can I still burn a menorah with evil intent and not expect a trip to slamland? Since what is being punished is the evil intent, what if I harbor the evilest of intents and burn, say, a lawn chair? Do I still go to jail?
Is the swooshing sound we hear that of Justice Thomas and the other Supremes sliding downslope?
I signed an "amicus" brief which was filed in this case with the Supreme Court, arguing against the position they now have adopted. It was another's writing, which I approved, and which had been hired out by a conservative group, a group which has been noticeably silent since the ruling came out. They asked me to submit the brief because I am admitted to practice before the U.S. Supreme Court. A nationally-known writer, in all seriousness, suggested that I be disbarred for having dared to submit this brief.
An ardent supporter of free speech, it was an easy call for me to agree to sign my name to a brief supporting cross burning. And, I would do it again, even though it was apparent at the outset that this was going to be the result. You see, the court had consolidated two different cases: in one, whites burned a cross in a black family's back yard and, in the other, whites burned a cross on their own private property. Clearly, the court was not going to approve the former. By putting the two cases together, plainly it intended to outlaw the latter.
Few will dispute that cross burning is ugly behavior. But, it is just the sort of ugliness in which true beauty resides - the beauty of free speech. Too bad that, as a society, we have yet to mature to the point where we see real beauty regardless of the context.
I don't know quite what to make of the following: A bill has been introduced in the House of Representatives to remove the two-term restriction on any single person's occupation of the Oval Office by rescinding Amendment 22 to the Constitution. It would take, of course, 3 or 4 years to get it past enough states to become effective, so the timing is just right to allow Bush to run for a third term, in 2008, if what he does to get elected in any way can be termed "running," that is.
Are we really this stupid? I know they think we are, but is the American public actually going to roll over for this one, too?
See for yourself. Go to: [url=http://thomas.loc.gov/home/c108query.html]http://thomas.loc.gov/home/c108query.html[/url] and enter "H.J.Res. 11" in the search box. You will be provided the following description: "Proposing an amendment to the Constitution of the United States to repeal the twenty-second article of amendment, thereby removing the limitation on the number of terms an individual may serve as President."
The bill was submitted this past January by Representative Jose Serrano (D, NY-16), whose prime agenda is pushing legislation favoring hispanics. Go to his website: [url=http://www.house.gov/serrano/legis.htm]http://www.house.gov/serrano/legis.htm[/url] and look at the list of his current bills, where he has this one mislisted as H.J.Res. 4, and look at the other things he favors.
In one of those odd coincidences of the universe, H.J.Res. 4 actually proposes to amend the U.S. Constitution to ban flag burning. Predictably, Mr. Serrano has nothing to do with this bill.
I invite all followers of this list to come hear me speak in person this Spring, first in Evansville, Indiana, at this year's Media Bypass convention on the weekend of May 24/25; also, in Washington, D.C., at the American Free Press/The Barnes Review Conference on the weekend of June 21/22. Both conferences start the Friday beforehand, but I do not yet have the schedule for either, so cannot say exactly when I will be speaking.
There is a monster lineup for the first, Media Bypass', which includes Scott Ritter, Charles Key, Chris Temple and Clay Douglas, among other notables. I am honored to be included in such company. Go here for the on-line instructions for attendance: [url=http://www.mediabypass.com/EMAIL-NOTICE.html]http://www.mediabypass.com/EMAIL-NOTICE.html[/url] .
To attend the second, one must be a current subscriber to The Barnes Review, a preeminent publication for those who think anything like I do. The toll free number to call for TBR subscriptions, at $46 yearly, is 1-877-773-9077. I have yet to see the lineup of speakers and panel discussions, but have no doubt that it will rival that of the Media Bypass convention.
-ed
"I didn't say it would be easy. I just said it would be the truth." - Morpheus
Copyright é2003, Edgar J. Steele
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