4/7/2003

The Supreme Court Allows States to Ban Cross Burning: A Legal Analysis

By Steven H. Aden

Chief Justice William Rehnquist and Justices John Paul Stevens, Sandra Day O'Connor and Stephen Breyer: States may ban cross burning, but Virginia's presumption of intent to intimidate is unconstitutional; voted to vacate Barry Elton Black's conviction but remand for possible retrial of Elliot and O'Mara if Virginia removes the presumption of intent.

Justice Antonin Scalia: States may ban cross burning, and Virginia's presumption of intent to intimidate was not clearly unconstitutional; voted to vacate Barry Elton Black's conviction but remand for possible retrial of Elliot and O'Mara if Virginia removes the presumption of intent.

Justices David Souter, Anthony Kennedy and Ruth Bader Ginsburg: Cross-burning bans are constitutionally suspect; would have vacated all convictions, saying presumption of intent could not be removed after the fact.

Justice Clarence Thomas: States may ban cross burning and Virginia's presumption of intent to intimidate was not unconstitutional; would have upheld all convictions.


A deeply divided Supreme Court ruled today that Virginia’s cross-burning statute could be applied to criminal defendants who burn a cross with the intent to intimidate a person or group. Justice Sandra Day O’Connor, speaking for a four-Justice plurality and delivering the judgment of the Court, held that Virginia could ban cross burning without infringing on the First Amendment rights of groups such as the Ku Klux Klan which historically have used the symbol "as a tool of intimidation and a threat of impending violence." The First Amendment, Justice O’Connor wrote, "permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation."

However, the Virginia statute has a different form of constitutional infirmity, the four-member plurality said. The statute creates a presumption that anyone burning a cross does so with the intent to intimidate a person or group. This presumption imposes too much of a burden on persons who seek to engage in cross burning for purely expressive reasons apart from intimidation. For example, Barry Elton Black, the defendant who burned a cross at a Klan rally, was improperly convicted under the statute because he was engaged in protected speech. The plurality determined that the entire cross-burning statute should be returned to the Virginia courts to determine whether the clause creating the unlawful presumption of intent could be severed from the rest of the statute, and the statute thereby saved. If so, the plurality stated, the other two defendants in the case, Elliot and O’Mara, who burned a cross on the lawn of a black neighbor, could then be retried for cross burning under the corrected statute.

A three-Justice dissent, led by Justice David Souter, disagreed, arguing that the entire statute should have been struck down as an unconstitutional content-based restriction on a specific form of speech. While the dissent expressed doubt that the cross-burning statute’s constitutionality was saved by the extreme "virulence" of the speech, it agreed that the statute’s presumption of intent to intimidate was an unconstitutional burden on protected speech. The dissent, however, would not have returned the case for possible retrial of Elliot and O’Mara, insisting that since the whole statute was unconstitutional on its face at the time all the defendants were charged, none of them could now be retried.

The remaining two Justices, Antonin Scalia and Clarence Thomas, usually allies on the Court, parted ways in Black. Justice Scalia, though doubting whether the statute’s presumption of intent to intimidate was invalid, went along with the plurality’s decision to remand the case as to Elliot and O’Mara, preferring to defer to Virginia’s own decision whether to sever the offending clause. Justice Thomas was the only Justice who would have upheld the conviction of Black. Thomas found no fault with either the content-based prohibition on cross-burning or the statutory presumption, saying, in essence, that cross-burning is a form of "threat" that cannot be mistaken for anything but intimidation. If the jury was mistaken about Black’s intent to intimidate a person or group by burning a cross in public, that was not an error that rose to constitutional magnitude, Thomas suggested.

Virginia has already passed a less objectionable version of the cross-burning statute, although the statue at issue in Black remains on the books. After the Virginia Supreme Court struck down the statute, the Virginia General Assembly enacted Va. Code Ann. § 18.2-423.01, which was intended to redress the constitutional infirmities of the statute. It provides:

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 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.