Virginia v. Black
[In this case the Supreme Court considers a First Amendment challenge to a state statute making it a crime to burn a cross with the intent to intimidate others.]
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. §18.2-423 (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.
Respondents Barry Black, Richard Elliott, and Jonathan O’Mara were convicted separately of violating Virginia’s cross-burning statute, §18.2-423. 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. …
During the rally, Sechrist heard Klan members speak about “what they were” and “what they believed in.” …. The speakers “talked real bad about the blacks and the Mexicans.” … One speaker told the assembled gathering that “he would love to take a .30/.30 and just random[ly] shoot the blacks.” The speakers also talked about “President Clinton and Hillary Clinton,” and about how their tax money “goes to ... the black people.” Sechrist testified that this language made her “very ... scared.” …
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.” …. As the cross burned, the Klan played Amazing Grace over the loudspeakers. Sechrist stated that the cross burning made her feel “awful” and “terrible.” …
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.” … The sheriff then went down the driveway, entered the rally, and asked “who was responsible for burning the cross.” … Black responded, “I guess I am because I’m the head of the rally.” ... 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.” …
Black was charged with burning a cross with the intent of intimidating a person or group of persons, in violation of §18.2-423. 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.” … 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.” … 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.” … The jury found Black guilty, and fined him $2,500. The Court of Appeals of Virginia affirmed Black’s conviction. …
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. … 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.” …
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.” … 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.” … The court did not instruct the jury on the meaning of the word “intimidate,” nor on the prima facie evidence provision of §18.2-423. 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. …
Each respondent appealed to the Supreme Court of Virginia, arguing that §18.2-423 is facially unconstitutional. The Supreme Court of Virginia consolidated all three cases, and held that the statute is unconstitutional on its face. … 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)].” … The Virginia statute, the court held, discriminates on the basis of content since it “selectively chooses only cross burning because of its distinctive message.” … 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.” …
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.” … 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.” … 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.” …. The dissent noted that the burden of proof still remains on the Commonwealth to prove intent to intimidate. We granted certiorari. …
[In this section Justice O’Connor explains how the practice of cross burning originated in the fourteenth century as a means for Scottish tribes to communicate. But in America the practice became intertwined with the history and activities of the Ku Klux Klan during the Reconstruction period of the South following the Civil War when activities of the Klan included cross burnings with threats of violence and messages of shared ideology of white supremacy. She traces the Klan activities into the era of the Civil Rights Movement and explains how cross burnings featured prominently in its rallies as the Klan attempted to move toward more nonviolent tactics to stop racial integration.]
… 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.” … 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.
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. … 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.” … The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. …
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. … 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.’” …
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.” … 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. … 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.” … And the First Amendment also permits a State to ban a “true threat.” …
“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. … 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.” … 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.
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. … 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.
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. … 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. … 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.” … This content-based discrimination was unconstitutional because it allowed the city “to impose special prohibitions on those speakers who express views on disfavored subjects.” …
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.” …
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.” … 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.” … Consequently, while the holding of R.A.V. does not permit a State to ban only obscenity based on “offensive political messages,” or “only those threats against the President that mention his policy on aid to inner cities,” the First Amendment permits content discrimination “based on the very reasons why the particular class of speech at issue ... is proscribable.” …
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.” … 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.” … Moreover, as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. … Indeed, in the case of Elliott and O’Mara, it is at least unclear whether the respondents burned a cross due to 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.
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.” … 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. … 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.” … 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.” … This jury instruction is the same as the Model Jury Instruction in the Commonwealth of Virginia. …
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. … 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.” … 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, “[b]urning a cross at a political rally would almost certainly be protected expression.” … 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.” …
… 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 §18.2-423.
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.
Justice Stevens, concurring.
Cross burning with “an intent to intimidate” … 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.
Justice Thomas, dissenting.
In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred … and the profane. I believe that cross burning is the paradigmatic example of the latter.
Although I agree with the majority’s conclusion that it is constitutionally permissible to “ban ... cross burning carried out with intent to intimidate,” … I believe that the majority errs in imputing an expressive component to the activity in question. … 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. …
Even assuming that the statute implicates the First Amendment, in my view, the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problems. Therein lies my primary disagreement with the plurality.
… To the extent we do have a construction of this statute by the Virginia Supreme Court, we know that both the majority and the dissent agreed that the presumption was “a statutorily supplied inference,” … Under Virginia law, the term “inference” has a well-defined meaning and is distinct from the term “presumption.” …
A presumption is a rule of law that compels the fact finder to draw a certain conclusion or a certain inference from a given set of facts. No presumption, however, can operate to shift the ultimate burden of persuasion from the party upon whom it was originally cast. …
Both the majority and the dissent below classified the clause in question as an “inference,” and I see no reason to disagree, particularly in light of the instructions given to the jury in Black’s case, requiring it to find guilt beyond a reasonable doubt both as to the fact that “the defendant burned or caused to burn a cross in a public place,” and that “he did so with the intent to intimidate any person or persons.” …
… Given that this Court’s definitions of a “permissive inference” and a “mandatory presumption” track Virginia’s definitions of “inference” and “presumption,” the Court should judge the Virginia statute based on the constitutional analysis applicable to “inferences:” they raise no constitutional flags unless “no rational trier could make a connection permitted by the inference.” … As explained in Part I, not making a connection between cross burning and intimidation would be irrational. …
Because the prima facie clause here is an inference, not an irrebuttable presumption, there is all the more basis under our Due Process precedents to sustain this statute.
The plurality, however, is troubled by the presumption because this is a First Amendment case. The plurality laments the fate of an innocent cross-burner who burns a cross, but does so without an intent to intimidate. The plurality fears the chill on expression because, according to the plurality, the inference permits “the Commonwealth to arrest, prosecute and convict a person based solely on the fact of cross burning itself.” … First, it is, at the very least, unclear that the inference comes into play during arrest and initiation of a prosecution, that is, prior to the instructions stage of an actual trial. Second, as I explained above, the inference is rebuttable and, as the jury instructions given in this case demonstrate, Virginia law still requires the jury to find the existence of each element, including intent to intimidate, beyond a reasonable doubt.
Moreover, even in the First
Amendment context, the Court has upheld such regulations where conduct that
initially appears culpable, ultimately results in dismissed charges. A
regulation of pornography is one such example. While possession of child
pornography is illegal, … possession of adult pornography, as long as it is not
obscene, is allowed. …
That the First Amendment gives way to other interests is not a remarkable proposition. What is remarkable is that, under the plurality’s analysis, the determination of whether an interest is sufficiently compelling depends not on the harm a regulation in question seeks to prevent, but on the area of society at which it aims. … That cross burning subjects its targets, and, sometimes, an unintended audience, … to extreme emotional distress, and is virtually never viewed merely as “unwanted communication,” but rather, as a physical threat, is of no concern to the plurality. Henceforth, under the plurality’s view, physical safety will be valued less than the right to be free from unwanted communications.
Because I would uphold the validity of this statute, I respectfully dissent.
Justice Scalia, with whom Justice Thomas joins as to Parts I and II, concurring in part, concurring in the judgment in part, and dissenting in part.
I agree with the Court that, under our decision in R.A.V. v. St. Paul, 505 U. S. 377 (1992), a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate. Accordingly, I join Parts I-III of the Court’s opinion. I also agree that we should vacate and remand the judgment of the Virginia Supreme Court so that that Court can have an opportunity authoritatively to construe the prima-facie-evidence provision of Va. Code Ann. §18.2-423 (1996). I write separately, however, to describe what I believe to be the correct interpretation of §18.2-423, and to explain why I believe there is no justification for the plurality’s apparent decision to invalidate that provision on its face.
Section 18.2-423 provides that the burning of a cross in public view “shall be prima facie evidence of an intent to intimidate.” In order to determine whether this component of the statute violates the Constitution, it is necessary, first, to establish precisely what the presentation of prima facie evidence accomplishes.
Typically, “prima facie evidence” is defined as:
“Such evidence as, in the judgment of the law, is sufficient to establish a given fact ... and which if not rebutted or contradicted, will remain sufficient. [Such evidence], if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but [it] may be contradicted by other evidence.” Black’s Law Dictionary 1190 (6th ed. 1990).
The Virginia Supreme Court has, in prior cases, embraced this canonical understanding of the pivotal statutory language. …
The established meaning in Virginia, then, of the term “prima facie evidence” appears to be perfectly orthodox: It is evidence that suffices, on its own, to establish a particular fact. But it is hornbook law that this is true only to the extent that the evidence goes unrebutted. “Prima facie evidence of a fact is such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.” …
To be sure, Virginia is entirely free, if it wishes, to discard the canonical understanding of the term “prima facie evidence.” Its courts are also permitted to interpret the phrase in different ways for purposes of different statutes. In this case, however, the Virginia Supreme Court has done nothing of the sort. To the extent that tribunal has spoken to the question of what “prima facie evidence” means for purposes of §18.2-423, it has not deviated a whit from its prior practice and from the ordinary legal meaning of these words. Rather, its opinion explained that under §18.2-423, “the act of burning a cross alone, with no evidence of intent to intimidate, will ... 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.” … Put otherwise, where the Commonwealth has demonstrated through its case in chief that the defendant burned a cross in public view, this is sufficient, at least until the defendant has come forward with rebuttal evidence, to create a jury issue with respect to the intent element of the offense.
It is important to note that the Virginia Supreme Court did not suggest … that a jury may, in light of the prima-facie-evidence provision, ignore any rebuttal evidence that has been presented and, solely on the basis of a showing that the defendant burned a cross, find that he intended to intimidate. Nor, crucially, did that court say that the presentation of prima facie evidence is always sufficient to get a case to a jury, i.e., that a court may never direct a verdict for a defendant who has been shown to have burned a cross in public view, even if, by the end of trial, the defendant has presented rebuttal evidence. Instead, according to the Virginia Supreme Court, the effect of the prima-facie-evidence provision is far more limited. It suffices to “insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief,” but it does nothing more. …That is, presentation of evidence that a defendant burned a cross in public view is automatically sufficient, on its own, to support an inference that the defendant intended to intimidate only until the defendant comes forward with some evidence in rebuttal.
The question presented, then, is whether, given this understanding of the term “prima facie evidence,” the cross-burning statute is constitutional. The Virginia Supreme Court answered that question in the negative. It stated that “§18.2-423 sweeps within its ambit for arrest and prosecution, both protected and unprotected speech.” … “The enhanced probability of prosecution under the statute chills the expression of protected speech sufficiently to render the statute overbroad.” …
This approach toward overbreadth analysis is unprecedented. We have never held that the mere threat that individuals who engage in protected conduct will be subject to arrest and prosecution suffices to render a statute overbroad. Rather, our overbreadth jurisprudence has consistently focused on whether the prohibitory terms of a particular statute extend to protected conduct; that is, we have inquired whether individuals who engage in protected conduct can be convicted under a statute, not whether they might be subject to arrest and prosecution. …
In deeming §18.2-423 facially invalid, the plurality presumably means to rely on some species of overbreadth doctrine. But it must be a rare species indeed. We have noted that “[i]n a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” … If one looks only to the core provision of §18.2-423--”[i]t 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 ...”--it appears not to capture any protected conduct; that language is limited in its reach to conduct which a State is, under the Court’s holding, … allowed to prohibit. In order to identify any protected conduct that is affected by Virginia’s cross-burning law, the plurality is compelled to focus not on the statute’s core prohibition, but on the prima-facie-evidence provision, and hence on the process through which the prohibited conduct may be found by a jury. And even in that context, the plurality cannot claim that improper convictions will result from the operation of the prima-facie-evidence provision alone. As the plurality concedes, the only persons who might impermissibly be convicted by reason of that provision are those who adopt a particular trial strategy, to wit, abstaining from the presentation of a defense.
The plurality is thus left with a strikingly attenuated argument to support the claim that Virginia’s cross-burning statute is facially invalid. The class of persons that the plurality contemplates could impermissibly be convicted under §18.2-423 includes only those individuals who (1) burn a cross in public view, (2) do not intend to intimidate, (3) are nonetheless charged and prosecuted, and (4) refuse to present a defense. …
Conceding (quite generously, in my view) that this class of persons exists, it cannot possibly give rise to a viable facial challenge, not even with the aid of our First Amendment overbreadth doctrine. …
As the analysis in Part I, supra, demonstrates, I believe the prima-facie-evidence provision in Virginia’s cross-burning statute is constitutionally unproblematic. Nevertheless, because the Virginia Supreme Court has not yet offered an authoritative construction of §18.2-423, I concur in the Court’s decision to vacate and remand the judgment with respect to respondents Elliott and O’Mara. I also agree that respondent Black’s conviction cannot stand. As noted above, the jury in Black’s case was instructed that “[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent.” … Where this instruction has been given, it is impossible to determine whether the jury has rendered its verdict (as it must) in light of the entire body of facts before it--including evidence that might rebut the presumption that the cross burning was done with an intent to intimidate--or, instead, has chosen to ignore such rebuttal evidence and focused exclusively on the fact that the defendant burned a cross. Still, I cannot go along with the Court’s decision to affirm the judgment with respect to Black. In that judgment, the Virginia Supreme Court, having erroneously concluded that §18.2-423 is overbroad, not only vacated Black’s conviction, but dismissed the indictment against him as well. … Because I believe the constitutional defect in Black’s conviction is rooted in a jury instruction and not in the statute itself, I would not dismiss the indictment and would permit the Commonwealth to retry Black if it wishes to do so. It is an interesting question whether the plurality’s willingness to let the Virginia Supreme Court resolve the plurality’s make-believe facial invalidation of the statute extends as well to the facial invalidation insofar as it supports dismissal of the indictment against Black. Logically, there is no reason why it would not.
Justice Souter, with whom Justice Kennedy and Justice Ginsburg join, concurring in the judgment in part and dissenting in part.
I agree with the majority that the Virginia statute makes a content-based distinction within the category of punishable intimidating or threatening expression, the very type of distinction we considered in R.A.V. v. St. Paul, 505 U. S. 377 (1992). I disagree that any exception should save Virginia’s law from unconstitutionality under the holding in R.A.V. or any acceptable variation of it.
The ordinance struck down in R.A.V., as it had been construed by the State’s highest court, prohibited the use of symbols (including but not limited to a burning cross) as the equivalent of generally proscribable fighting words, but the ordinance applied only when the symbol was provocative “on the basis of race, color, creed, religion or gender.” … Although the Virginia statute in issue here contains no such express “basis of” limitation on prohibited subject matter, the specific prohibition of cross burning with intent to intimidate selects a symbol with particular content from the field of all proscribable expression meant to intimidate. To be sure, that content often includes an essentially intimidating message, that the cross burner will harm the victim, most probably in a physical way, given the historical identification of burning crosses with arson, beating, and lynching. But even when the symbolic act is meant to terrify, a burning cross may carry a further, ideological message of white Protestant supremacy. The ideological message not only accompanies many threatening uses of the symbol, but is also expressed when a burning cross is not used to threaten but merely to symbolize the supremacist ideology and the solidarity of those who espouse it. As the majority points out, the burning cross can broadcast threat and ideology together, ideology alone, or threat alone, as was apparently the choice of respondents Elliott and O’Mara. …
The issue is whether the statutory prohibition restricted to this symbol falls within one of the exceptions to R.A.V.’s general condemnation of limited content-based proscription within a broader category of expression proscribable generally. Because of the burning cross’s extraordinary force as a method of intimidation, the R.A.V. exception most likely to cover the statute is the first of the three mentioned there, which the R.A.V. opinion called an exception for content discrimination on a basis that “consists entirely of the very reason the entire class of speech at issue is proscribable.” … This is the exception the majority speaks of here as covering statutes prohibiting “particularly virulent” proscribable expression. …
I do not think that the Virginia statute qualifies for this virulence exception as R.A.V. explained it. The statute fits poorly with the illustrative examples given in R.A.V., none of which involves communication generally associated with a particular message, and in fact, the majority’s discussion of a special virulence exception here moves that exception toward a more flexible conception than the version in R.A.V. …
… Nor does this case present any analogy to the statute prohibiting threats against the President, the second of R.A.V.’s examples of the virulence exception and the one the majority relies upon. … The content discrimination in that statute relates to the addressee of the threat and reflects the special risks and costs associated with threatening the President. …
I thus read R.A.V.’s examples of the particular virulence exception as covering prohibitions that are not clearly associated with a particular viewpoint, and that are consequently different from the Virginia statute. On that understanding of things, I necessarily read the majority opinion as treating R.A.V.’s virulence exception in a more flexible, pragmatic manner than the original illustrations would suggest. … Actually, another way of looking at today’s decision would see it as a slight modification of R.A.V.’s third exception, which allows content-based discrimination within a proscribable category when its “nature” is such “that there is no realistic possibility that official suppression of ideas is afoot.” … The majority’s approach could be taken as recognizing an exception to R.A.V. when circumstances show that the statute’s ostensibly valid reason for punishing particularly serious proscribable expression probably is not a ruse for message suppression, even though the statute may have a greater (but not exclusive) impact on adherents of one ideology than on others. …
My concern here, in any event, is not with the merit of a pragmatic doctrinal move. For whether or not the Court should conceive of exceptions to R.A.V.’s general rule in a more practical way, no content-based statute should survive even under a pragmatic recasting of R.A.V. without a high probability that no “official suppression of ideas is afoot.” … I believe the prima facie evidence provision stands in the way of any finding of such a high probability here.
Virginia’s statute provides that burning a cross on the property of another, a highway, or other public place is “prima facie evidence of an intent to intimidate a person or group of persons.” … While that language was added by amendment to the earlier portion of the statute criminalizing cross burning with intent to intimidate, … it was a part of the prohibitory statute at the time these respondents burned crosses, and the whole statute at the time of respondents’ conduct is what counts for purposes of the First Amendment.
As I see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten. … One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. … What is significant is not that the provision permits a factfinder’s conclusion that the defendant acted with proscribable and punishable intent without any further indication, because some such indication will almost always be presented. What is significant is that the provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one. The effect of such a distortion is difficult to remedy, since any guilty verdict will survive sufficiency review unless the defendant can show that, “viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” … The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression, as Justice O’Connor notes. …
To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas. Thus, the appropriate way to consider the statute’s prima facie evidence term, in my view, is not as if it were an overbroad statutory definition amenable to severance or a narrowing construction. The question here is not the permissible scope of an arguably overbroad statute, but the claim of a clearly content-based statute to an exception from the general prohibition of content-based proscriptions, an exception that is not warranted if the statute’s terms show that suppression of ideas may be afoot. Accordingly, the way to look at the prima facie evidence provision is to consider it for any indication of what is afoot. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute’s prohibition some expression that is doubtfully threatening though certainly distasteful.
It is difficult to conceive of an intimidation case that could be easier to prove than one with cross burning, assuming any circumstances suggesting intimidation are present. The provision, apparently so unnecessary to legitimate prosecution of intimidation, is therefore quite enough to raise the question whether Virginia’s content-based statute seeks more than mere protection against a virulent form of intimidation. It consequently bars any conclusion that an exception to the general rule of R.A.V. is warranted on the ground “that there is no realistic [or little realistic] possibility that official suppression of ideas is afoot.” … Since no R.A.V. exception can save the statute as content based, it can only survive if narrowly tailored to serve a compelling state interest, … a stringent test the statute cannot pass; a content-neutral statute banning intimidation would achieve the same object without singling out particular content.
I conclude that the statute under which all three of the respondents were prosecuted violates the First Amendment, since the statute’s content-based distinction was invalid at the time of the charged activities, regardless of whether the prima facie evidence provision was given any effect in any respondent’s individual case. In my view, severance of the prima facie evidence provision now could not eliminate the unconstitutionality of the whole statute at the time of the respondents’ conduct. I would therefore affirm the judgment of the Supreme Court of Virginia vacating the respondents’ convictions and dismissing the indictments. Accordingly, I concur in the Court’s judgment as to respondent Black and dissent as to respondents Elliott and O’Mara.