Virginia v. Black, 123 S.Ct. 1536 (2003)

Cross burning is perhaps the most compelling domestic terror symbol in America. Law enforcement has sought authority to prosecute those who burn crosses to spread fear and harm. Such defendants have often sought First Amendment protection.

In Virginia v. Black, the Supreme Court parsed Virginia’s cross burning, locating its constitutional limits. Virginia’s half-century-old Cross-Burning statute proscribed the burning of a cross ‘‘with the intent of intimidating’’ another and providing that ‘‘[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.’’

The Supreme Court granted certiorari on two related issues: whether the Cross-Burning statute violated the First Amendment as interpreted in R.A.V. v. St. Paul (the R.A.V. issue) and whether the statutory presumption that cross burning is ‘‘prima facie evidence’’ of the defendant’s intent to intimidate was unconstitutionally overbroad (the ‘‘overbreadth’’ issue).

Justice O’Connor’s majority opinion upheld the statute on the R.A.V. issue; Justice Souter, joined by Kennedy and Ginsburg, dissented, doubting whether this statute, separate from other Cross-Burning statutes, was constitutional under R.A.V.

On the overbreadth issue, a majority view may have existed, if not a majority opinion. O’Connor, for a four-judge plurality, found the statutory presumption constitutionally invalid. Separately, Souter, Kennedy, and Ginsburg found the presumption invalid and indicative of their broader concern with the R.A.V. issue.

Under Virginia v. Black, a law may not punish cross burning per se but may punish intimidation crimes committed through targeted Cross-Burning—a ‘‘particularly virulent form of intimidation.’’

FREDERICK M. LAWRENCE

Cases and Statutes Cited

• Va. Code. Ann. }18.2-423 (Michie 1991) (enacted in 1950). The prima facie provision was added to the statute in 1968.
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)