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Number 30                            April 2003

Virginia's Cross-Burning Statute:

Virginia v. Black

Jescey D. French, Senior Attorney

The United States Supreme Court vacated the decision of the Virginia Supreme Court in ruling that the major provision of Virginia’s cross-burning statute is constitutional (2003 U.S. Lexis 2715, decided April 7, 2003). The question before the United States Supreme Court was whether § 18.2-423 of the Code of Virginia (Virginia’s “cross-burning” statute) violates the freedom of speech clause of the First Amendment of the United States Constitution. The Court found constitutional the portion of § 18.2- 423 punishing the burning of a cross with the intent to intimidate any person or group of persons as a Class 6 felony. However, the provision of the statute making the burning of a cross prima facie evidence of intent to intimidate is unconstitutional as interpreted through the Virginia Model Jury Instructions.

The Virginia statute at issue in the case:

§ 18.2-423. Burning cross on property of another or public place with intent to intimidate; penalty; prima facie evidence of intent.

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.

First Amendment, United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Background and Virginia Court Decisions

Three Virginia defendants claimed § 18.2-423 is facially unconstitutional and appealed their convictions to the Virginia Supreme Court, which consolidated them. One defendant, Black, was charged in Carroll County under § 18.2-423 and the other two, Elliott and O’Mara, were charged in Virginia Beach with attempted cross burning and conspiracy to commit cross burning.

Black led a Ku Klux Klan rally where he participated in burning a cross next to a state highway on an open field owned by another participant in the rally, who was present and consented to the burning. Black was convicted by a jury that received the instruction that “the burning of a cross by itself is sufficient evidence from which you may infer the required intent,” taken verbatim from the Virginia Model Jury Instructions.1

Elliott and O’Mara and a third individual attempted to burn a cross on the lawn of Elliott’s African-American next-door neighbor after the neighbor questioned Elliott’s use of his backyard as a firing range. The defendants had difficulty lighting a fire and were charged with attempt and conspiracy. Elliott’s jury did not receive the prima facie evidence instruction and found him guilty of attempted cross burning and acquitted him of conspiracy to commit cross burning. O’Mara pleaded guilty to both counts but reserved the right to challenge the constitutionality of the cross-burning statute.

The Virginia Court of Appeals affirmed the convictions of the three men, but the Virginia Supreme Court held 4-3 in an opinion written by Justice Lemons that the statute was unconstitutional on its face as it was indistinguishable from the ordinance found unconstitutional in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), 262 Va. 764 (2001). That ordinance prohibited placement of symbols, objects, appellations, characterizations or graffiti, including a burning cross, which one knows, or has reasonable grounds to know, arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender. The Virginia Supreme Court said that the R.A.V. v. City of St. Paul case made it clear that regulation of speech or expressive conduct may not be based upon the content of the message. The Court therefore held that Virginia’s statute was unconstitutional as it discriminated on the basis of content and view.

Constitutionality of Conduct

The U.S. Supreme Court rejected the Virginia Supreme Court’s interpretation of § 18.2-423, and in doing so, essentially upheld the statute with one proviso. In analyzing the legality of Virginia’s cross-burning statute, the court reviewed the history of the Ku Klux Klan and the special meaning of a burning cross. The Court noted that cross burning is symbolic expression and that the First Amendment provides protection to symbolic or expressive conduct as well as speech. Writing for the Court,* Justice O’Connor distinguished St. Paul, which the Virginia Supreme Court relied on, saying that the ordinance in that case “discriminated on the basis of content by targeting only those individuals who ‘provoke violence’ on a basis specified in the law,” referring to the fact that the St. Paul ordinance prohibited only the bases of “race, color, creed, religion or gender.”2 As noted both in this opinion and St. Paul, the St. Paul ordinance would not have applied to anyone who burned a cross in an attempt to intimidate someone on the basis of their political affiliation, union membership or sexual orientation.

The U.S. Supreme Court stated “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 burnings’ long and pernicious history as a signal of impending violence.”3

Prima Facie Evidence of Intent to Intimidate

The U.S. Supreme Court made it clear that the prima facie provision of § 18.2-423 as interpreted by the Virginia Model Jury Instruction, Criminal Instruction No. 10.250, is unconstitutional, stating “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 . . . provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense.”4 The Court did not address the provision standing alone without the jury instruction and stated “we refuse to speculate on whether any interpretation of the prima facie evidence provision would satisfy the First Amendment.”5 The Court said that theoretically it might be possible for a lower court to interpret the prima facie provision in a manner that avoids the constitutional prohibitions described in the opinion. The Court also left open the question of whether the prima facie portion of the statute can be severed and the remainder of the statute remain sound. Virginia Code § 1-17.1 assumes that Virginia Code provisions are severable unless one of the statutory exemptions exists.

Virginia’s severability statute:

§ 1-17.1. Severability.

The provisions of statutes in this Code or the application thereof to any person or circumstances which are held invalid shall not affect the validity of other statutes, provisions or applications of this Code which can be given effect without the invalid provisions or applications. The provisions of all statutes are severable unless (i) the statute specifically provides that its provisions are not severable; or (ii) it is apparent that two or more statutes or provisions must operate in accord with one another.

The Court affirmed the Virginia Supreme Court’s decision that Black’s conviction cannot stand, vacated the judgment of the Virginia Supreme Court regarding Elliot and O’Mara, and remanded the case for further proceedings. The Virginia Supreme Court is expected to receive the case in early May and will decide whether to set it for additional briefings by the parties, remand to the trial court or issue final judgment. If additional briefings are requested, the case may not be heard until the September term.

Virginia’s New Statute

The 2002 General Assembly enacted a new statute numbered § 18.2-423.01 after § 18.2-423 was held unconstitutional by the Virginia Supreme Court. Section 18.2-423 has not been repealed. The new statute does not contain a prima facie evidence provision and applies to “objects” and does not mention crosses. The new statute would not appear to criminalize Mr. Black’s conduct because he burned a cross on the private property of another with permission and the statute covers only the private property of another without permission, a highway or other public place. The statute makes burning an object on the private property of another with the intent to intimidate a crime in itself; whereas, burning an object on a highway or other public place with the intent to intimidate must be “in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”

§ 18.2-423.01. Burning object on property of another or a highway or other public place with intent to intimidate; penalty.

A. Any person who, with the intent of intimidating any person or group of persons, burns an object on the private property of another without permission, is guilty of a Class 6 felony.
B. Any person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.


*Chief Justice Rehnquist and Justices Stevens, Scalia and Breyer joined in this portion of Justice O’Connor’s opinion.

Footnotes use Lexus pagination, which is subject to change pending release of the final published version.

1 2003 U.S. Lexis 2715, pp. 14 and 15.
2 Id at p. 34.
3 Id at p. 37.
4 Id at pp. 40 and 41.
5 Id at p. 45.

Virginia Legislative Issue Brief is an occasional publication of the Division of Legislative Services, an agency of the General Assembly of Virginia.

E.M. Miller, Jr., Director
R.J. Austin, Manager, Special Projects
K.C. Patterson, Editor

For information contact:

Special Projects
Division of Legislative Services
910 Capitol Street, 2nd Floor
Richmond, VA 23219
(804) 786-3591

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