In 2003, the U.S. Supreme Court delivered a major ruling in Virginia v. Black, a case that tackled the thorny intersection of free speech, intimidation, and the historical symbolism of cross burning. This case wasn’t just about a Virginia law banning cross burning—it was about how the First Amendment protects (or doesn’t protect) symbolic acts, particularly those tied to hate and intimidation.
The First Amendment protects freedom of religion, speech, the press, assembly, and petition. It's a cornerstone of American liberties, interpreted through numerous Supreme Court cases like NY Times Co. v. Sullivan (libel), Tinker v. Des Moines (student speech), and Citizens United (political spending). While broad, it's not absolute; some speech, like incitement, isn't protected. It's a complex, evolving area of law crucial for exercising rights and participating in democracy.
What's the Matter?
Three individuals—Barry Black, Richard Elliott, and Jonathan O’Mara—were convicted under a Virginia law that made it a felony to burn a cross with the intent to intimidate. The statute also stated that any cross burning would be considered prima facie evidence of intent to intimidate.
They challenged the law, arguing it violated their First Amendment rights.
Barry Black led a Ku Klux Klan rally where a cross was burned.
Elliott and O’Mara attempted to burn a cross in the yard of an African American neighbor.
The Virginia Supreme Court struck down the law, calling it overly broad and unconstitutional. The case then made its way to the U.S. Supreme Court.
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
The Supreme Court’s Ruling
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. § 18.2–423 (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 § 1–17.1 (“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
The Supreme Court’s decision, delivered by Justice Sandra Day O’Connor, was a mixed bag:
States CAN ban cross burning done with intent to intimidate. Cross burning, when meant to terrorize, falls under “true threats,” which aren’t protected by the First Amendment.
BUT… the prima facie evidence provision was unconstitutional. This part of the law presumed intent to intimidate from the mere act of burning a cross, which could infringe on protected speech.
The majority opinion in the case , delivered by Justice Sandra Day O’Connor, provided several critical insights into the intersection of free speech, intimidation, and symbolic conduct. First, the Court acknowledged the deeply troubling history of cross burning, particularly its association with the Ku Klux Klan and its use as a tool of racial terrorism. While cross burning often carries a message of intimidation, the Court noted that it doesn’t always do so—some instances might be political expression or symbolic speech protected under the First Amendment. This distinction was crucial in the Court’s analysis, as it recognized that not every act of cross burning is inherently threatening.
Second, the Court reaffirmed that the First Amendment does not protect “true threats,” which include statements or actions intended to communicate a serious expression of an intent to commit violence. Cross burning with the intent to intimidate falls squarely within this category, making it constitutionally permissible for states to ban such acts. This principle underscores the idea that while the First Amendment safeguards a wide range of speech, it does not extend to expressions designed to instill fear or threaten harm.
Third, the Court distinguished this case from R.A.V. v. St. Paul, where a city ordinance was struck down for targeting specific types of hate speech based on content. In contrast, the Virginia statute applied to all cross burnings intended to intimidate, regardless of the victim’s race, religion, or other characteristics. This broader application meant the law did not engage in the same kind of content-based discrimination that rendered the ordinance in R.A.V. unconstitutional.
Finally, the Court took issue with the statute’s prima facie evidence provision, which automatically treated cross burning as evidence of intent to intimidate. The majority found this provision problematic because it risked punishing individuals engaged in protected symbolic speech, such as political expression, rather than true threats. By striking down this provision, the Court sought to prevent the chilling of legitimate speech while still allowing states to prosecute cross burnings intended to intimidate.
This balance reflects the Court’s commitment to protecting free expression while addressing harmful conduct.
The case reinforced the idea that free speech has limits—especially when speech becomes a true threat. But it also emphasized that laws restricting symbolic expression must be carefully crafted to avoid infringing on protected speech.
The case highlights the power of symbols like the burning cross, which, for many, is a horrifying reminder of racial violence and terror. The ruling struck a balance: allowing states to criminalize cross burnings meant to intimidate while preventing blanket bans that could stifle free expression.
Finally the case raises crucial questions about how we regulate hate speech and symbolic acts in a way that protects both individuals from intimidation and society’s commitment to open expression. As debates over hate speech continue, this case remains a key reference point in the legal and cultural landscape.
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