Virginia v. Black

538 U.S. 343 (2003)

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Nature of the Case

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Facts

Black (D) led a Ku Klux Klan rally in Carroll County, Virginia. It occurred on private property with the permission of the owner, who was in attendance. The sheriff observed from the side of the road. Hate speech was heard. At the conclusion, 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. One local observer stated that the cross burning made her feel “awful” and “terrible.” P was charged with burning a cross with the intent of intimidating a person or group of persons, in violation of § 18.2-423. 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.” P objected to this last instruction on First Amendment grounds. P was found guilty and fined him $2,500. The Court of Appeals affirmed D's conviction. In another incident, Elliott and 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. 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. Ds 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. Ds were not affiliated with the Klan. 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.” Ds were charged with attempted cross burning and conspiracy to commit cross burning. 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. Elliott (D) was found guilty of attempted cross burning but acquitted of conspiracy to commit cross burning. It sentenced Elliott (D) to 90 days in jail and a $2,500 fine. The Court of Appeals of Virginia affirmed. The Supreme Court of Virginia held that the statute is unconstitutional on its face. It 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.” The Supreme Court granted certiorari.