Lemons, JJ., and Whiting, S.J. *
BARRY ELTON BLACK
v. Record No. 010123
COMMONWEALTH OF VIRGINIA
RICHARD J. ELLIOTT
v. Record No. 003014 OPINION BY JUSTICE DONALD W. LEMONS
November 2, 2001
COMMONWEALTH OF VIRGINIA
JONATHAN O'MARA
v. Record No. 010038
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In these appeals, we consider whether Code 18.2-423,
which prohibits the burning of a cross with the intent of
intimidating any person or group of persons, impermissibly
infringes upon constitutionally protected speech. The case of
Black v. Commonwealth involves a Ku Klux Klan rally on private
property with the permission of the owner, where a cross was
burned as a part of the ceremony. The companion cases of
O'Mara v. Commonwealth and Elliott v. Commonwealth involve the
attempted burning of a cross in the backyard of the home of
James S. Jubilee ("Jubilee"), an African-American, without
permission. We conclude that, despite the laudable intentions
of the General Assembly to combat bigotry and racism, the
selectivity of its statutory proscription is facially
unconstitutional because it prohibits otherwise permitted
speech solely on the basis of its content, and the statute is
overbroad.
FACTS AND PROCEEDINGS BELOW
The prosecutions of Richard J. Elliott ("Elliott") and
Jonathan O'Mara ("O'Mara") arose from a single incident in the
City of Virginia Beach. On May 2, 1998, Elliott and O'Mara
attended a party at the home of David Targee ("Targee").
Elliott told several people at the party that his neighbor,
Jubilee, had complained about the discharge of firearms in
Elliott's backyard. In response, Elliott suggested they burn
a cross in Jubilee's yard.
Elliott, O'Mara, and Targee hastily constructed a crude
wooden cross in Targee's garage. While transporting the cross
to the Jubilee home, Elliott referred to Jubilee with a racial
epithet confirming Jubilee's race. Upon arriving at Jubilee's
home, O'Mara put the cross in the ground and attempted to
light it.
In addition to the epithet, the record is replete with
references to Jubilee's race. In the Commonwealth's motion
for joinder of defendants in the Elliott and O'Mara cases, it
is stated: "Mr. James Jubilee is an African-American." A fire
investigator with the City of Virginia Beach testified that
Targee knew the Jubilees were black before he participated in
the cross burning. Throughout the O'Mara and Elliott
prosecution, the Commonwealth referred to "burning a cross in
a black family's yard." The questions of counsel and argument
to the court are replete with references to race and racism.
Pursuant to a plea agreement, O'Mara pled guilty to
attempted cross burning and conspiracy to commit cross
burning, and was sentenced to 90 days in jail and a $2500 fine
on each charge, with part of the time and fines suspended.
Under the plea agreement, O'Mara retained the right to appeal
the constitutionality of Virginia's cross burning statute.
Elliott was also charged with attempted cross burning and
conspiracy to commit cross burning. Upon his plea of not
guilty, a jury found him guilty of attempted cross burning,
but not guilty of conspiracy. Elliott was sentenced to 90
days in jail and was fined $2500.
O'Mara and Elliott appealed to the Court of Appeals,
alleging that the Virginia cross burning statute violated the
free speech clauses of both the United States and Virginia
Constitutions. The Court of Appeals affirmed the convictions,
holding that the statute "targets only expressive conduct
undertaken with the intent to intimidate another, conduct
clearly proscribable both as fighting words and a threat of
violence." O'Mara v. Commonwealth, 33 Va. App. 525, 536, 535
S.E.2d 175, 181 (2000).
In the third case reviewed, Barry Elton Black ("Black")
organized and led a Ku Klux Klan rally on August 22, 1998, in
Carroll County. Following speeches filled with racial,
ethnic, and religious bigotry, a cross approximately 25 to 30
feet tall was ignited.
Black was indicted for violating Virginia's cross burning
statute. He moved for dismissal of the indictment on the
grounds that the statute was unconstitutional. The trial
court denied Black's motion and, upon conviction by a jury,
Black was sentenced to pay a fine of $2500.
Black appealed his conviction, and the Court of Appeals
affirmed the judgment of the trial court, "[f]or the reasons
stated in O'Mara v. Commonwealth." Black v. Commonwealth,
Rec. No. 1581-99-3, December 19, 2000, at 1.
THE CROSS BURNING STATUTE
Code 18.2-423, the cross burning statute, provides
that:
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.
Black contends that the cross burning statute is
unconstitutional because it engages in viewpoint and content
discrimination and it fails to incorporate the standards
articulated by the United States Supreme Court in Brandenburg
v. Ohio, 395 U.S. 444 (1969), concerning incitement to, and
likelihood of, imminent lawless action. Additionally, Black
contends that the provision of the statute permitting an
inference of intent to intimidate from the mere act of burning
a cross, which excuses the Commonwealth from its proof
requirement for the establishment of a prima facie case,
further aggravates viewpoint and content discrimination and
violates the limitations prescribed in Brandenburg.
The geometric configuration of a single vertical bar
traversed by a single shorter horizontal bar has no unusual
inherent properties. But its symbolic meaning is powerful.
For Christians, the symbol of the cross evokes remembrance of
the crucifixion of Christ. Unfortunately, such powerful
symbols are often subject to misappropriation. As recognized
by Justice Clarence Thomas in his concurring opinion in
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S.
753, 770-71 (1995), the burning of a cross has acquired a
specific meaning:
There is little doubt that the Klan's
main objective is to establish a racist
white government in the United States. In
Klan ceremony, the cross is a symbol of
white supremacy and a tool for the
intimidation and harassment of racial
minorities, Catholics, Jews, Communists,
and any other groups hated by the Klan.
The cross is associated with the Klan not
because of religious worship, but because
of the Klan's practice of cross
burning. . . . The Klan simply has
appropriated one of the most sacred of
religious symbols as a symbol of hate.
In 1952, in direct response to Ku Klux Klan activities in
Virginia, including incidents of cross burning, the General
Assembly enacted the predecessor statute to the law at issue
in these cases. The cross burning statute was amended on
several occasions, including an amendment expanding the sites
where cross burning may not take place, and the addition of
the inference of intent to intimidate from the mere act of
burning a cross for the purposes of establishing a prima facie
case under the statute.
SELECTIVE REGULATION OF SPEECH BASED UPON CONTENT
It is well established that non-verbal, symbolic
expression is "speech," and is as fully protected by the First
Amendment to the United States Constitution as more
traditional means of communication. See, e.g., Tinker v. Des
Moines Indep. Sch. Dist., 393 U.S. 503 (1969) (wearing of
black arm bands by high school students as a protest against
the war in Vietnam). However pernicious the expression may
be, "[i]f there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable." Texas v. Johnson, 491 U.S.
397, 414 (1989). Any question about the constitutional
infirmity of such selective proscription of speech was
resolved by the United States Supreme Court in the case of
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
The Virginia cross burning statute is analytically
indistinguishable from the ordinance found unconstitutional in
R.A.V. R.A.V. involved the prosecution of a teenager who,
with several other minors, allegedly assembled a crudely made
cross and burned the cross inside the fenced yard of a black
family. Id. at 379. The City of St. Paul prosecuted under
its Bias-Motivated Crime Ordinance, which provided:
Whoever places on public or private
property a symbol, object, appellation,
characterization or graffiti, including,
but not limited to, a burning cross or
Nazi swastika, 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
commits disorderly conduct and shall be
guilty of a misdemeanor.
St. Paul, Minn., Legis. Code 292.02 (1990). The trial court
held that the statute was unconstitutional, but the Minnesota
Supreme Court reversed, construing the St. Paul ordinance as
limited to conduct that amounts to "fighting words," namely,
"conduct that itself inflicts injury or tends to incite
immediate violence . . . ." In re Welfare of R.A.V., 464
N.W.2d 507, 510 (Minn. 1991). Accepting the limited
construction placed upon the statute by the Minnesota Supreme
Court, the United States Supreme Court held that, even if the
expression reached by the ordinance was proscribable under the
"fighting words" doctrine, the ordinance was "facially
unconstitutional in that it prohibit[ed] otherwise permitted
speech solely on the basis of the subjects the speech
addresses." R.A.V., 505 U.S. at 381.
Noting that "[t]he First Amendment generally prevents
government from proscribing speech, or even expressive
conduct, because of disapproval of the ideas expressed," the
Court observed that "[c]ontent-based regulations are
presumptively invalid." Id. at 382 (citations omitted).
Exceptions to the rule include: obscenity (e.g., Roth v.
United States, 354 U.S. 476 (1957)), defamation (e.g.,
Beauharnais v. Illinois, 343 U.S. 250 (1952)), and "fighting
words" (e.g., Chaplinsky v. New Hampshire, 315 U.S. 568
(1942)). But simply because particular categories of speech
may be regulated does not mean that such regulation may
selectively discriminate on the basis of content. As the
Court in R.A.V. stated:
And just as the power to proscribe
particular speech on the basis of a
noncontent element (e.g., noise) does not
entail the power to proscribe the same
speech on the basis of a content element;
so also, the power to proscribe it on the
basis of one content element (e.g.,
obscenity) does not entail the power to
proscribe it on the basis of other content
elements.
R.A.V., 505 U.S. at 386.
The Commonwealth argues that the Virginia statute is
neutral because "Code 18.2-423 applies equally to anyone who
burns a cross for the purpose of intimidating anyone." The
Commonwealth further dwells upon the phrase in R.A.V. which
states that "threats of violence are outside the First
Amendment." 505 U.S. at 388. This quotation is incomplete
and distorts the holding of R.A.V. While a statute of neutral
application proscribing intimidation or threats may be
permissible, a statute punishing intimidation or threats based
only upon racial, religious, or some other selective content-
focused category of otherwise protected speech violates the
First Amendment. Id.
Emphasizing the point, the Court in R.A.V., noted:
Thus, the government may proscribe libel;
but it may not make the further content
discrimination of proscribing only libel
critical of the government.
R.A.V., 505 U.S. at 384.
We have long held, for example, that
nonverbal expressive activity can be
banned because of the action it entails,
but not because of the ideas it expresses
- so that burning a flag in violation of
an ordinance against outdoor fires could
be punishable, whereas burning a flag in
violation of an ordinance against
dishonoring the flag is not.
Id. at 386.
A State might 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. But it may
not prohibit, for example, only that
obscenity which includes offensive
political messages.
Id. at 388.
And the Federal Government can criminalize
only those threats of violence that are
directed against the President, see 18
U.S.C. 871 - since the reasons why
threats of violence are outside the First
Amendment (protecting individuals from the
fear of violence, from the disruption that
fear engenders, and from the possibility
that the threatened violence will occur)
have special force when applied to the
person of the President . . . . But the
Federal Government may not criminalize
only those threats against the President
that mention his policy on aid to inner
cities.
Id.
R.A.V. makes it abundantly clear that, while certain
areas of speech and expressive conduct may be subject to
proscription, regulation within these areas must not
discriminate based upon the content of the message. In this
case, the Commonwealth seeks to proscribe expressive conduct
that is intimidating in nature, but selectively chooses only
cross burning because of its distinctive message. As the
Court in R.A.V. succintly stated: "the government may not
regulate use based upon hostility - or favoritism -towards the
underlying message expressed." Id. at 386.
While not specifically stating that "race, color, creed,
religion or gender" is the subject of proscription, the
absence of such language in the Virginia statute does not mask
the motivating purpose behind the statutory prohibition of
cross burning. The United States Supreme Court dealt with a
similar question in the "flag burning" cases. In Texas v.
Johnson, Johnson was prosecuted under a statute making it
unlawful to intentionally or knowingly desecrate the United
States flag. "Desecrate" was defined as "deface, damage, or
otherwise physically mistreat in a way that the actor knows
will seriously offend one or more persons likely to observe or
discover his action." 491 U.S. at 400 (quoting Texas Penal
Code Ann. 42.09 (1989)). After the Supreme Court declared
the Texas statute unconstitutional, Congress enacted the Flag
Protection Act of 1989. In subsequent litigation concerning
the Act, the government maintained that the absence of
language in the Act focusing upon the content of the actor's
symbolic speech cured any constitutional problems. The
Supreme Court disagreed in United States v. Eichman, 496 U.S.
310, 315 (1990)(internal quotations omitted), stating that,
"[a]lthough the [statute] contains no explicit content-based
limitation on the scope of prohibited conduct, it is
nevertheless clear that the Government's asserted interest is
related to the suppression of free expression."
Similarly, considering the historical and current context
of cross burning, and the statute's reliance on such context
for the provision of an inference of intent to intimidate from
the mere act of burning a cross, it is clear that the
Commonwealth's interest in enacting the cross burning statute
is related to the suppression of free expression as well.
The virulent symbolism of cross burning has been
discussed in so many judicial opinions that its subject and
content as symbolic speech has been universally acknowledged.
For example, the Supreme Court of South Carolina declared a
statute with operative language similar to ours
unconstitutional and observed: "a burning cross historically
conveys ideas capable of eliciting powerful responses from
those engaging in the conduct and those receiving the
message." State v. Ramsey, 430 S.E.2d 511, 514 (S.C. 1993).
The Court of Appeals of Maryland also declared a statute with
operative language similar to ours unconstitutional and
observed:
Those who openly burn crosses do so fully
cognizant of the controversial racial and
religious messages which such acts impart.
Historically, the Ku Klux Klan burned
crosses to express hostility towards
blacks and other groups it disfavored, and
it is that idea which contemporary cross
burners aim to perpetuate.
State v. Sheldon, 629 A.2d 753, 757 (Md. 1993).
The historical context for the passage of the Virginia
cross burning statute is uncontrovertible. In an atmosphere
of racial, ethnic, and religious intolerance, the General
Assembly acted to combat a particular form of intimidating
symbolic speech - the burning of a cross. It did not
proscribe the burning of a circle or a square because no
animating message is contained in such an act.
Initially, the cross burning proscription extended only
to acts on property of another without permission. In 1968,
the limitation concerning situs was removed, and in 1975, the
addition of language establishing prima facie evidence of
intent to intimidate from the mere act of burning a cross
reaffirmed the legislative context of the statute. During
oral argument, the Commonwealth maintained that the portion of
the statute proscribing the burning of a cross had nothing to
do with the motivation of the actor. When asked how the
Commonwealth could justify the inference of intimidation
provided in the last sentence of the statute, the Commonwealth
relied upon the historical context of cross burning. The
Commonwealth cannot have it both ways.
"SECONDARY EFFECTS"
As described above, the R.A.V. analysis begins with
categories of speech that may be subject to regulation and
holds that such regulation may not selectively discriminate on
the basis of content. However, the Court in R.A.V. recognized
that some selective regulation of constitutionally protected
speech may be permissible if it is based upon the "secondary
effects" of speech rather than its content. See Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1986). In Renton, the
ordinance under review proscribed the location of an adult
motion picture theater within 1,000 feet of any residential
zone, single- or multiple-family dwelling, church, park, or
school. Because the ordinance did not ban adult theaters
entirely, the Court held that the ordinance is "properly
analyzed as a form of time, place, and manner regulation."
Id. at 46.
The analysis used by the Court focused upon whether the
regulation was directed at the content of the protected speech
or at a legitimate area of government concern. Determining
that the dominant motive of the ordinance was "to prevent
crime, protect the city's retail trade, maintain property
values, and generally `protec[t] and preserv[e] the quality of
[the city's] neighborhoods, commercial districts, and the
quality of urban life,' the Court upheld the ordinance. Id.
at 48. The Court held that the regulation in Renton was
"aimed not at the content of the films shown at `adult motion
picture theatres,' but rather at the secondary effects of such
theaters on the surrounding community." Id. at 47. By
contrast, the legislative history of the Virginia cross
burning statute, the meaning afforded the expressive conduct,
and the provision of prima facia evidence of intent to
intimidate from the mere act of burning a cross, make it
abundantly clear that Code 18.2-423 is aimed at regulating
content, not "secondary effects."
OVERBREADTH ANALYSIS
As discussed herein, the majority opinion in R.A.V. holds
that certain categories of speech may be regulated, but the
government may not discriminate in its proscription within
these categories on the basis of content. The concurring
opinions in R.A.V. preferred a more traditional analysis
confined to the question whether the ordinance suffered from
overbreadth. As Justice White noted, St. Paul's ordinance was
unconstitutionally overbroad because:
Although the ordinance as construed
reaches categories of speech that are
constitutionally unprotected, it also
criminalizes a substantial amount of
expression that -- however repugnant -- is
shielded by the First Amendment.
Id. at 413 (J. White, concurring). The Commonwealth's cross
burning statute is similarly defective.
It is not simply the prospect of conviction under the
statute that renders it overbroad. The enhanced probability
of prosecution under the statute chills the expression of
protected speech sufficiently to render the statute overbroad.
Virginia v. American Booksellers Ass'n, 484 U.S. 383, 392-93
(1988). Threat of prosecution under a criminal statute "tends
to chill the exercise of First Amendment rights." North
Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710
(4th Cir. 1999). Self-censorship, "a harm that can be
realized even without an active prosecution," inhibits free
speech. Vermont Right to Life Committee, Inc. v. Sorrell, 221
F.3d 376, 382 (2nd Cir. 2000).
Code 18.2-423 provides in part that "any such burning
of a cross shall be prima facie evidence of an intent to
intimidate a person or group of persons." Assuming that the
act is done "on the property of another, a highway or other
public place," 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. That the trier of fact ultimately finds the actor not
guilty of the offense is little consolation after arrest and
prosecution for speech or expressive conduct that is otherwise
protected. Arrest for, and prosecution of, otherwise
protected speech, with no evidence of a critical element of
the offense other than a statutorily supplied inference,
chills free expression. Code 18.2-423 sweeps within its
ambit for arrest and prosecution, both protected and
unprotected speech. As such it is overbroad.
BRANDENBURG ISSUES
In R.A.V., the Court acknowledged that the narrow
construction placed upon the ordinance limited its application
to "fighting words," a proper category of proscription.
Nonetheless, the ordinance was declared unconstitutional
because of its selective application to only certain
expressions of fighting words. Virginia's cross burning
statute suffers from the same infirmity. Because we hold that
the statute impermissibly proscribes otherwise protected
speech on the basis of content, and because the statute is
overbroad, it is unnecessary to address the remaining
challenges under Brandenburg.
CONCLUSION
Under our system of government, people have the right to
use symbols to communicate. They may patriotically wave the
flag or burn it in protest; they may reverently worship the
cross or burn it as an expression of bigotry. Neutrally
expressed statutes prohibiting vandalism, assault, and
trespass may have vitality for the prosecution of particularly
offensive conduct. While reasonable prohibitions upon time,
place, and manner of speech, and statutes of neutral
application may be enforced, government may not regulate
speech based on hostility -or favoritism -towards the
underlying message expressed.
A statute selectively addressed to the content of
symbolic speech is not permitted under the First Amendment.
Additionally, a statute that sweeps within its ambit both
protected and unprotected speech is overbroad. Accordingly,
we hold that Code 18.2-423 violates the First Amendment of
the United States Constitution. The convictions in each of
these appeals will be vacated and the indictments will be
dismissed.
Reversed and dismissed.
JUSTICE KINSER, concurring.
In the words of the dissent, I, too, "stand second to
none in my devotion to the First Amendment's mandate that most
forms of speech are protected, irrespective of how repugnant
and offensive the message uttered or conveyed may be to
others." However, in contrast to the dissent, I cannot be
dissuaded from that devotion, and believe that the "fair
application of our jurisprudence" must include a fair and
proper application of the First Amendment. Therefore, I fully
agree with the majority opinion. I write separately to
address certain inferences and conclusions drawn by the
dissent.
Relying on the definition of the term "intimidation" set
forth in Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d
665, 670 (1985) ("intimidation . . . means putting a victim in
fear of bodily harm"), the dissent concludes that Code 18.2-
423 proscribes only conduct that constitutes "true threats."
Expanding on that definition, the dissent then states that the
purpose of Code 18.2-423 is "to proscribe physical acts
intended to inflict bodily harm upon the victims of such
acts." The dissent's attempt to equate an intent to
intimidate with a "true threat" or a physical act intended to
inflict bodily harm has no legal basis and misconstrues the
decision in Sutton.
The issue in that case was whether there was sufficient
evidence to prove that the defendant engaged in sexual
intercourse with the victim against her will by intimidation.
228 Va. at 662, 324 S.E.2d at 669. Noting that the General
Assembly had expanded the scope of the statute proscribing
rape to include "a prohibition against sexual intercourse with
a woman against her will by threat or intimidation," as well
as by force, the Court explained that "[t]here is a difference
between threat and intimidation[,]" and that "[i]ntimidation
may occur without threats." Id. at 663, 324 S.E.2d at 669-70.
Thus, our established jurisprudence does not support the
proposition that Code 18.2-423 proscribes only conduct that
constitutes "true threats." An act performed with the intent
to intimidate, i.e., to place an individual in fear of bodily
harm, does not rise to the same level as a threat (defined in
Sutton as "expression of an intention to do bodily harm," 228
Va. at 663, 324 S.E.2d at 670), or a physical act intended to
inflict bodily harm.
For the same reason, Code 18.2-423 does not satisfy the
principle enunciated in Brandenburg v. Ohio, 395 U.S. 444, 447
(1969), that "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." Although reprehensible and offensive, the act of
burning a cross with the intent to intimidate is not
necessarily speech aimed at "producing imminent lawless
action." Id. That proposition is borne out by the fact that
the cross burning for which Barry Elton Black was convicted
occurred on private property with the permission of the owner.
Even if the dissent were correct that Code 18.2-423
proscribes only conduct that constitutes "true threats," the
General Assembly cannot engage in content discrimination by
selectively prohibiting only those "true threats" that convey
a particular message. R.A.V. v. City of St. Paul, 505 U.S.
377, 388 (1992). Unfortunately, that is what the General
Assembly has done in Code 18.2-423 by confining the
proscription in that statute to the act of burning a cross.
The constitutional infirmity is not, as suggested by the
dissent, cured by the fact that the statute does not prohibit
all acts of burning a cross. The statute's content-based
discrimination still exists.
Finally, the dissent's statement that the majority has
concluded that the Constitution of the United States prevents
the General Assembly from enacting a statute that prohibits
persons from burning a cross "in a manner that intentionally
places citizens in fear of bodily harm" misinterprets the
holding in the majority opinion. I believe that a more
accurate characterization of the majority's conclusion is that
the General Assembly may, in a statute of neutral application,
proscribe expressive conduct performed with the intent to
intimidate another individual, but that the General Assembly
may not selectively prohibit only certain acts of intimidation
based upon the content of the underlying message.
For these reasons, I respectfully concur.
JUSTICE HASSELL, with whom CHIEF JUSTICE CARRICO and JUSTICE
KOONTZ join, dissenting.
I dissent. The majority opinion invalidates a statute
that for almost 50 years has protected our citizens from being
placed in fear of bodily harm by the burning of a cross. The
majority concludes that the Constitution of the United States
prohibits the General Assembly from enacting this statute. I
find no such prohibition in either the Constitution of
Virginia or the Constitution of the United States. Without
question, the framers of the First Amendment never
contemplated that a court would construe that Amendment so
that it would permit a person to burn a cross in a manner that
intentionally places citizens in fear of bodily harm.
I am concerned about the fair application of our
jurisprudence to every citizen and the proper interpretation
of our Federal and State Constitutions. These same concerns
for fairness and the safety of our citizens were the very
basis for the General Assembly's decision to enact Code
18.2-423 almost 50 years ago.
I stand second to none in my devotion to the First
Amendment's mandate that most forms of speech are protected,
irrespective of how repugnant and offensive the message
uttered or conveyed may be to others. However, contrary to
the view adopted by the majority in these appeals, the First
Amendment does not permit a person to burn a cross in a manner
that intentionally places another person in fear of bodily
harm.
I.
A.
Barry Elton Black was indicted by a Carroll County grand
jury for the burning of a cross with the intent to intimidate
in violation of Code 18.2-423. At the conclusion of a
trial, the jury found him guilty as charged in the indictment
and fixed his punishment at $2,500. Black appealed the
circuit court's judgment confirming the jury's verdict to the
Court of Appeals, which affirmed his conviction. Black v.
Commonwealth, Record No. 1581-99-3 (December 19, 2000).
The following evidence was presented during Black's
trial. On August 22, 1998, H. Warren Manning, the Sheriff of
Carroll County, received a report that members of the Ku Klux
Klan intended to conduct a rally in Carroll County that
evening. Later, Sheriff Manning drove his police car to the
site of the rally, where three men dressed in white robes and
hats approached him. Sergeant Richard C. Clark, Jr., met
Sheriff Manning at the site of the rally.
Approximately 45 minutes later, after the rally started,
Sheriff Manning observed the Klan members burn a cross that
was approximately 25 to 30 feet tall. Sheriff Manning
approached Black and inquired, "who [is] responsible for
burning the cross?" Black responded that he was responsible
for burning the cross, and he was placed under arrest.
The rally was conducted on property owned by Annabell
Sechrist. She was present during the rally, and she had given
the Ku Klux Klan permission to burn the cross on her property.
Rebecca Sechrist, a Caucasian female, lived on property
adjacent to the property where the rally occurred. Sechrist
observed the rally from her home. In response to the
question, "[w]hat statements did you hear?", she testified:
"They . . . talked a lot about blacks - and I don't call [ ]
the word they called it . . . it started with an N and I
don't, I don't use that word, I'm sorry - but they talked real
bad about the blacks and the Mexicans and they talked about
how, one . . . guy got up and said that he would love to take
a .30/.30 and just random shoot the blacks and talked about
how they would like to send the blacks and the Mexicans back
from where they come from and talked about President Clinton
and Hillary Clinton and about the government funding money for
the, for the people that can't afford housing and stuff and
. . . how their tax paying goes to keep the black people up
and stuff like that."
Sechrist testified that she was "scared" as a result of
the rally. She stated: "I was scared our home would get
burned or something would happen to it. We've got two . . .
kids and I was afraid that something would happen to them."
In response to a question by defendant's counsel, Sechrist
testified: "I think they were trying to scare me."
B.
Jonathan Stephen O'Mara was indicted by a grand jury in
the City of Virginia Beach for attempting to burn a cross with
the intent of intimidating a person or group of persons in
violation of Code 18.2-423 and conspiracy to burn a cross in
violation of Code 18.2-423. O'Mara entered a guilty plea
that reserved his right to file an appeal challenging the
constitutionality of Code 18.2-423.
The court fixed O'Mara's punishment at incarceration in
the jail for a term of 90 days and imposed a fine of $2,500 on
each of the charges. O'Mara appealed the judgment to the
Court of Appeals, which affirmed his convictions. O'Mara v.
Commonwealth, 33 Va. App. 525, 535 S.E.2d 175 (2000).
O'Mara entered into a stipulation of facts with the
Commonwealth, which was made a part of the record in the
circuit court. The stipulation states: "On May 2, 1998,
David Targee had approximately fifteen individuals, including
Jonathan O'Mara and Richard Elliott, at his residence in
Virginia Beach. They were all consuming alcohol. Elliott
complained to Targee and O'Mara about his neighbor and about
how he wanted to 'get back' at him. It was suggested (not by
O'Mara) that they burn a cross in Elliott's neighbor's yard.
O'Mara and Targee agreed, and they all went to Targee's garage
where a cross was built. They all got in Targee's truck and
drove to Munden Point Road in Virginia Beach. Targee was
driving, with O'Mara in the front passenger seat and Elliott
in the back seat. Once there, Elliott handed the cross to
O'Mara, who also grabbed a can of lighter fluid and went
outside and placed the cross in the yard of Elliott's
neighbor. He then poured lighter fluid on the cross, set it
on fire, and ran back to the car. Targee drove them back to
his house. The next morning, Elliott's neighbor, James
Jubilee, came out of his house and observed the partially
burned cross in his yard. He broke the cross and placed [it]
in the garage. He later called the police."
C.
A grand jury in the City of Virginia Beach indicted
Richard J. Elliott for attempting to burn a cross on the
property of James S. Jubilee with the intent of intimidating
any person or group of persons in violation of Code 18.2-423
and conspiracy to burn a cross in violation of Code 18.2-
423. At the conclusion of a trial, the jury found Elliott
guilty of attempted cross burning with the intent to
intimidate and fixed his punishment at 90 days incarceration
in jail and a fine of $2,500. Elliott appealed the circuit
court's judgment to the Court of Appeals, which affirmed his
conviction. See O'Mara, 33 Va. App. 525, 535 S.E.2d 175.
The following evidence was adduced at the trial. James
Jubilee resided at 2044 Munden Point Road in Virginia Beach.
One day, Mr. Jubilee told his next door neighbor, Mrs.
Elliott, that he was concerned because persons were
discharging firearms in her backyard. Mrs. Elliott responded
that her husband maintained a firing range in the rear of her
yard.
On May 2, 1998, David Targee had a party at his home
where he entertained Jonathan O'Mara, Richard Elliott, and
others. Richard Elliott, who had consumed alcoholic
beverages, mentioned that "his neighbors were complaining
about him shooting in his backyard . . . . He wanted to get
back at them for doing it."
Later that evening, Targee, Elliott, and O'Mara went to
Targee's parents' garage and constructed a wooden cross.
After they had constructed the cross, they traveled by car to
Mr. Jubilee's home where O'Mara placed the cross in the yard
and ignited it. The next morning between 8:15 and 8:30, Mr.
Jubilee saw the cross, which contained "burn spots." He
picked it up and broke it.
Jennifer Luning, O'Mara's former "girlfriend," testified
that O'Mara admitted that he, Targee, and Richard Elliott had
burned the cross. "He had said that before they actually went
out and did it that there was a conversation taking place
about Richard had been complaining or the neighbors had been
complaining about shooting [guns] in the backyard."
Edwin Coyner, a fire investigator for the City of
Virginia Beach, testified that he interviewed Targee several
times. Targee informed Coyner that "Richard Elliott had
complained about his neighbors because the neighbors had
complained about him shooting in the backyard."
II.
A.
The First Amendment of the Constitution of the United
States provides in part: "Congress shall make no law . . .
abridging the freedom of speech." Article I, 12 of the
Constitution of Virginia states:
"That the freedoms of speech and of the press are
among the great bulwarks of liberty, and can never
be restrained except by despotic governments; that
any citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for
the abuse of that right; that the General Assembly
shall not pass any law abridging the freedom of
speech or of the press, nor the right of the people
peaceably to assemble, and to petition the
government for the redress of grievances."
The Fourteenth Amendment prohibits state action in
violation of the First Amendment. The freedom of speech
guaranteed by Article I, 12 of the Constitution of Virginia
is co-extensive with the protections guaranteed by the First
Amendment of the Constitution of the United States.
Code 18.2-423 states:
"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."
B.
We have held, since the birth of this Commonwealth, that
"the judiciary may and ought to adjudge a law unconstitutional
and void, if it be plainly repugnant to the letter of the
Constitution, or the fundamental principles thereof." Kamper
v. Hawkins, 3 Va. (1 Va. Cas.) 20, 40 (1793). However,
clearly engrained within our jurisprudence is the principle
that this Court
"can declare an act of the general assembly void
only when such act clearly and plainly violates the
[C]onstitution, and in such manner as to leave no
doubt or hesitation on our minds.
"This rule has been repeatedly declared by this
court.
. . . .
The presumption always is that the legislature
has judged correctly of its constitutional powers,
and the contrary must be clearly demonstrated before
a co-ordinate branch of the government can be called
upon to interfere between the people and their
immediate representatives."
Commonwealth v. Moore, 66 Va. (25 Gratt.) 951, 953 (1875).
Indeed, we have repeatedly held that "[e]very act of the
legislature is presumed to be constitutional, and the courts
are powerless to declare an act invalid, except where it
appears beyond doubt that it contravenes some provision of the
State or Federal Constitution. If we doubt we must sustain
its constitutionality." Tobacco Growers Co-Operative Assoc.
v. Danville Warehouse Co., 144 Va. 456, 469, 132 S.E. 482, 486
(1926). We restated this fundamental principle in Harrison v.
Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959):
"When the constitutionality of an act is challenged,
a heavy burden of proof is thrust upon the party
making the challenge. All laws are presumed to be
constitutional and this presumption is one of the
strongest known to the law. As we said in Almond v.
Day, 199 Va. 1, 6, 97 S.E.2d 824[, 828 (1957)]:
'. . . It is only where an act is plainly repugnant
to some constitutional provision that the courts can
declare it null and void. If there be a reasonable
doubt whether the act violates the fundamental law,
that doubt must be resolved in favor of the act.' "
Accord Jefferson Green Unit Owners Assoc., Inc. v. Gwinn, 262
Va. 449, 459, 551 S.E.2d 339, 344 (2001); Motley v. Virginia
State Bar, 260 Va. 243, 247, 536 S.E.2d 97, 99 (2000); Finn v.
Virginia Retirement System, 259 Va. 144, 153, 524 S.E.2d 125,
130 (2000); Pulliam v. Coastal Emergency Services, 257 Va. 1,
9, 509 S.E.2d 307, 311 (1999); Mumpower v. Housing Authority,
176 Va. 426, 443, 11 S.E.2d 732, 738 (1940); Antoni v. Wright,
63 Va. (22 Gratt.) 833, 882 (1872); Auditor of Public Accounts
v. Graham, 5 Va. (1 Call) 475, 476 (1798). For some
inexplicable reason, the majority ignores this fundamental
principle.
C.
Black, O'Mara, and Elliott (the defendants), relying
principally upon R.A.V. v. City of St. Paul, 505 U.S. 377
(1992), argue that Code 18.2-423 violates their right to
freedom of speech guaranteed by the First Amendment to the
Constitution of the United States and Article I, 12 of the
Constitution of Virginia and that the Court of Appeals erred
by holding that the statute comported with these
constitutional provisions. I disagree with the defendants.
Initially, I observe that Code 18.2-423, by its express
terms, does not proscribe every act of burning a cross.
Rather, Code 18.2-423 only proscribes the act of burning a
cross when such act is performed "with the intent of
intimidating any person or group of persons" and the act is
committed "on the property of another, a highway or other
public place." In the context of our criminal statutes,
specifically Code 18.2-61, we have defined intimidation as
acts which put the victim "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;
however, the fear of the victim need not be so great as to
result in terror, panic, or hysteria." Sutton v.
Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 669 (1985).
Thus, applying the clear and unambiguous language in Code
18.2-423 in conjunction with our established definition of
intimidation, which the majority ignores, I conclude that Code
18.2-423 only proscribes conduct which constitutes "true
threats." And, I note that the United States Supreme Court,
in Watts v. United States, 394 U.S. 705, 707 (1969), approved
the facial constitutionality of a federal criminal statute
that prohibited someone from threatening the life of the
President of the United States. It is well established that
true threats of violence can be proscribed by statute without
infringing upon the First Amendment.
Madsen v. Women's Health Center, Inc., 512 U.S. 753, 774
(1994); Nat'l Organization for Women, Inc. v. Scheidler, ___
F.3d ___, ___ (7th Cir. 2001); Bauer v. Sampson, 261 F.3d 775,
782 (9th Cir. 2001); United States v. Rahman, 189 F.3d 88, 115
(2nd Cir.), cert. denied, sub nom. Nosair v. United States,
528 U.S. 982 (1999); United States v. Francis, 164 F.3d 120,
122-23 (2nd Cir. 1999); United States v. J.H.H., 22 F.3d 821,
825 (8th Cir. 1994). However, I must continue this inquiry
regarding the constitutionality of Code 18.2-423 because in
R.A.V., supra, the Supreme Court held that the First Amendment
imposes certain limitations upon the regulation of speech and
expressive conduct, including true threats.
In R.A.V., the Supreme Court considered whether an
ordinance was facially invalid under the First Amendment. In
R.A.V., the defendant, along with several other teenagers,
made a wooden cross and burned it in a yard owned by a black
family. The defendant was convicted of violating the
following ordinance:
"Whoever places on public or private property a
symbol, object, appellation, characterization or
graffiti, including, but not limited to, a burning
cross or Nazi swastika, 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 commits disorderly conduct
and shall be guilty of a misdemeanor."
The Supreme Court held that the ordinance was facially
unconstitutional because it prohibited otherwise permitted
speech solely on the basis of the content of the speech, even
though the Minnesota Supreme Court had concluded that the
ordinance only prohibited unprotected "fighting words."
R.A.V., 505 U.S. at 379-81.
The Supreme Court observed, however, that certain "areas
of speech can, consistently with the First Amendment, be
regulated because of their constitutionally proscribable
content (obscenity, defamation, etc.) - not that they are
categories of speech entirely invisible to the Constitution,
so that they may be made the vehicles for content
discrimination unrelated to their distinctively proscribable
content. Thus, the government may proscribe libel; but it may
not make the further content discrimination of proscribing
only libel critical of the government." Id. at 383-84.
The Supreme Court explained:
"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. To illustrate: a
State might 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. But it may
not prohibit, for example, only that obscenity which
includes offensive political messages. See Kucharek
v. Hanaway, 902 F.2d 513, 517 (7th Cir. 1990), cert.
denied, 498 U.S. 1041 (1991). And the Federal
Government can criminalize only those threats of
violence that are directed against the President,
see 18 U.S.C. 871 - since the reasons why threats
of violence are outside the First Amendment
(protecting individuals from the fear of violence,
from the disruption that fear engenders, and from
the possibility that the threatened violence will
occur) have special force when applied to the person
of the President. See Watts v. United States, 394
U.S. 705, 707 (1969). . . . But the Federal
Government may not criminalize only those threats
against the President that mention his policy on aid
to inner cities. And to take a final example . . .
a State may choose to regulate price advertising in
one industry, but not in others, because the risk of
fraud . . . is in its view greater there. . . . But
a State may not prohibit only that commercial
advertising that depicts men in a demeaning
fashion."
R.A.V., 505 U.S. at 388-89.
The Supreme Court also articulated a second basis which
would permit some degree of content-based discrimination.
"Another valid basis for according differential
treatment to even a content-defined subclass of
proscribable speech is that the subclass happens to
be associated with particular 'secondary effects' of
the speech, so that the regulation is 'justified
without reference to the content of the . . .
speech.' Renton v. Playtime Theatres, Inc., 475
U.S. 41, 48 (1986) . . . . A State could, for
example, permit all obscene live performances except
those involving minors. Moreover, since words can
in some circumstances violate laws directed not
against speech, but against conduct . . . a
particular content-based subcategory of a
proscribable class of speech can be swept up
incidentally within the reach of a statute directed
at conduct, rather than speech. . . . Where the
government does not target conduct on the basis of
its expressive content, acts are not shielded from
regulation merely because they express a
discriminatory idea or philosophy.
"These bases for distinction refute the
proposition that the selectivity of the restriction
is 'even arguably "conditioned upon the sovereign's
agreement with what a speaker may intend to say." '
Metromedia, Inc. v. San Diego, 453 U.S. 490, 555
(1981) . . . . There may be other such bases as
well. Indeed, to validate such selectivity (where
totally proscribable speech is at issue), it may not
even be necessary to identify any particular
'neutral' basis, so long as the nature of the
content discrimination is such that there is no
realistic possibility that official suppression of
ideas is afoot. . . . Save for that limitation, the
regulation of 'fighting words,' like the regulation
of noisy speech, may address some offensive
instances and leave other, equally offensive,
instances alone."
R.A.V., 505 U.S. at 389-90.
In invalidating the City of St. Paul's ordinance, the
Supreme Court stated that
"[a]lthough the phrase in the ordinance 'arouses
anger, alarm or resentment in others,' has been
limited by the Minnesota Supreme Court's
construction to reach only those symbols or displays
that amount to 'fighting words,' the remaining,
unmodified terms make clear that the ordinance
applies only to 'fighting words' that insult, or
provoke violence, 'on the basis of race, color,
creed, religion or gender.' Displays containing
abusive invective, no matter how vicious or severe,
are permissible unless they are addressed to one of
the specified disfavored topics. Those 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 - are not covered. The First
Amendment does not permit St. Paul to impose special
prohibitions on those speakers who express views on
disfavored subjects."
Id. at 391.
Continuing, the Supreme Court explained:
"What we have here, it must be emphasized, is
not a prohibition of fighting words that are
directed at certain persons or groups (which would
be facially valid if it met the requirements of the
Equal Protection Clause); but rather, a prohibition
of fighting words that contain . . . messages of
'bias-motivated' hatred and, in particular, as
applied to this case, messages 'based on virulent
notions of racial supremacy.' "
Id. at 392 (citation omitted).
Contrary to the majority's opinion, Code 18.2-423 does
not suffer from the defects contained in the ordinance at
issue in R.A.V. As previously stated, Code 18.2-423 does
not prohibit every act of burning of a cross. Rather, the
statute only prohibits the burning of a cross when such act is
performed with the intent to intimidate. And, consistent with
our jurisprudence, the word "intimidate" means to place one in
fear of bodily harm. Unlike the City of St. Paul's ordinance,
which targeted cross burning on the basis of race, color,
creed, religion or gender, Code 18.2-423 does not contain
those limitations. The conduct proscribed in the Virginia
statute applies to any individual who burns a cross for any
reason provided the cross is burned with the intent to
intimidate. That point is best illustrated in O'Mara and
Elliott because these defendants burned a cross because they
were angry that their neighbor had complained about the
presence of a firearm shooting range in the Elliotts' yard,
not because of any racial animus.
Additionally, the Supreme Court pointed out in R.A.V.
that a valid basis for according differential treatment even
to a content-defined subclass of proscribable speech is when
the subclass happens to be associated with particular
secondary effects of the speech so that the regulation is
justified without reference to the content of the speech. The
ordinance that the Supreme Court invalidated in R.A.V.
targeted any cross burning that "one knows or has reasonable
grounds to know arouses anger, alarm or resentment." 505 U.S.
at 380.
By contrast, from its clear and unambiguous language, the
purpose of the Virginia statute, Code 18.2-423, is not to
suppress repugnant ideas, but rather to proscribe physical
acts intended to inflict bodily harm upon the victims of such
acts. Simply stated, the Virginia statute proscribes acts of
intimidation, but it does not prohibit persons from expressing
their views, irrespective of how repugnant or offensive those
views may be to others. The Virginia statute does not
prohibit the burning of a cross so long as that act is
committed without an intent to place a person in fear of
bodily harm. See also In re Steven S., 31 Cal. Rptr. 2d 644,
646, 647-48 (Cal. Ct. App. 1994) (statute proscribing the act
of "burn[ing] a cross on the private property of another for
the purpose of terrorizing the owner or occupant or in
reckless disregard of that risk" is not impermissible content-
based prohibition on speech within the meaning of the First
Amendment); State v. Talley, 858 P.2d 217, 220, 225-27 (Wash.
1993) (statute proscribing cross burning that places another
person in reasonable fear of harm to his person or property
does not violate the First Amendment).
I recognize that the Supreme Court of South Carolina, in
State v. Ramsey, 430 S.E.2d 511 (S.C. 1993), invalidated a
statute that prohibited the burning of a cross on the basis
that it contravened the First Amendment. The South Carolina
statute, however, was significantly different from the
Virginia statute. The South Carolina statute stated: "It
shall be unlawful for any person to place or cause to be
placed in a public place in the State a burning or flaming
cross or any manner of exhibit in which a burning or flaming
cross, real or simulated, is the whole or a part . . . without
first obtaining written permission of the owner or occupier of
the premises so to do." Id. at 514.
Unlike Code 18.2-423, which proscribes the burning of a
cross with the intent of intimidating and, thus, prohibits
real threats, the South Carolina statute contained no similar
limitation. The Supreme Court of South Carolina concluded
that its statute was enacted "in order to protect individuals
and society as a whole from the reprehensible messages often
sought to be symbolicly expressed by a burning cross."
Ramsey, 430 S.E.2d at 514. As I have already explained,
Virginia's statute does not suffer from this constitutional
defect. Thus, the differences between the Virginia statute
and the South Carolina statute are real and significant. Yet,
the majority ignores the differences between Code 18.2-423
and the South Carolina statute.
I also observe that the Maryland Court of Appeals, in
State v. Sheldon, 629 A.2d 753, 755 (Md. 1993), held that a
Maryland statute violated the First Amendment because it
required those who wished to burn crosses or religious symbols
to "secure the permission of the property owner where the
burning is to occur and [to] notify the local fire department
before engaging in the burning." That statute stated in part:
"It shall be unlawful for any person or persons
to burn or cause to be burned any cross or other
religious symbol upon any private or public property
within this State without the express consent of the
owner of such property and without first giving
notice to the fire department which services the
area in which such burning is to take place."
Id. at 755. Unlike the Virginia statute, the Maryland statute
did not proscribe burning a cross with the intent of
intimidating, but rather, is content-based regulation of
expression. The Maryland Supreme Court found "no way to
justify the cross burning statute without referring to the
substance of speech it regulates, because the statute does not
protect property owners or the community from unwanted fires
any more than the law already protected those groups before
the statute's enactment." Id. at 755. Yet, the majority
ignores these significant distinctions.
IV.
Defendant Black argues that Code 18.2-423 "does not
incorporate the requirements that the speech at issue be
directed to the incitement of imminent lawless action, and
likely to produce such action, and as such is unconstitutional
under the standard of Brandenburg v. Ohio, and the Brandenburg
standard was not satisfied here." I disagree with the
defendant. The Supreme Court's decision in Brandenburg v.
Ohio, 395 U.S. 444 (1969) simply has no application here.
The Supreme Court considered the following facts in
Brandenburg. Brandenburg, "a leader of a Ku Klux Klan group,
was convicted under the Ohio Criminal Syndicalism statute for
'advocat[ing] . . . the duty, necessity, or propriety of
crime, sabotage, violence, or unlawful methods of terrorism as
a means of accomplishing industrial or political reform' and
for 'voluntarily assembl[ing] with any society, group, or
assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism.' " Id. at 444-45
(alteration in original).
Brandenburg placed a telephone call to a reporter on the
staff of a television station and invited the reporter to
attend a Ku Klux Klan rally that would be held at a certain
farm. "[T]he reporter and a cameraman attended the meeting
and filmed the events. Portions of the films were later
broadcast on the local station and on a national network."
Id. at 445. The prosecutor relied upon the films and
testimony identifying the defendant as the person who
communicated with the reporter and who spoke at the rally.
The prosecutor "also introduced into evidence several articles
appearing in the film, including a pistol, a rifle, a shotgun,
ammunition, a Bible, and a red hood worn by the speaker in the
films." The only persons present at the rally other than the
participants were the newsmen who made the film. Id. at 445-
46.
The Supreme Court pointed out that "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." Id. at 447. Continuing, the U.S.
Supreme Court stated that
"the mere abstract teaching . . . of the moral
propriety or even moral necessity for a resort to
force and violence, is not the same as preparing a
group for violent action and steeling it to such
action. . . . A statute which fails to draw this
distinction impermissibly intrudes upon the freedoms
guaranteed by the First and Fourteenth Amendments.
It sweeps within its condemnation speech which our
Constitution has immunized from governmental
control."
Id. at 448.
The Supreme Court invalidated the Ohio Criminal
Syndicalism Act because neither the indictment nor the trial
court's instructions to the jury "refined the statute's bald
definition of the crime in terms of mere advocacy not
distinguished from incitement to imminent lawless action."
Id. at 448-49.
In stark contrast to the Supreme Court's decision in
Brandenburg, we are not concerned here with abstract teaching
regarding the moral propriety or even moral necessity of
violence as a means for accomplishing political reform.
Rather, the subject of this case is Code 18.2-423, a statute
which proscribes the burning of a cross with the intent to
intimidate, which we have held means to place the victim in
fear of bodily harm. And, I note that the jury at defendant
Black's trial was specifically instructed that
"[i]ntimidate, as used in the term 'with the
intent to intimidate' means a motivation to
intentionally put a person or 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;
however, the fear of the victim need not be so great
as to result in terror, panic, or hysteria."
I have already observed, in response to defendant's
counsel's questions at trial, Rebecca Sechrist testified that
she was afraid that her "home would get burned or something
would happen to it." Moreover, defendant Black has never
challenged the sufficiency of the evidence to support the
jury's finding beyond a reasonable doubt that his acts placed
Sechrist in fear of bodily harm.
IV.
Defendant Black argues that "[t]he provision of Code
18.2-423 providing that the burning of a cross shall be
prima facie evidence of an intent to intimidate permits a jury
to find intimidation from the mere act of cross-burning alone,
in contravention of the First Amendment." I disagree.
Code 18.2-423 creates a statutory inference, and we
have stated that an "inference merely applies to the rational
potency or probative value of an evidentiary fact to which the
fact finder may attach whatever force or weight it deems
best." Martin v. Phillips, 235 Va. 523, 526 n.1, 369 S.E.2d
397, 399 n.1 (1988). Additionally, "inferences are never
allowed to stand against ascertained and established facts."
Ragland v. Rutledge, 234 Va. 216, 219, 361 S.E.2d 133, 135
(1987) (citing Southern Ry. v. Mays, 192 Va. 68, 76, 63 S.E.2d
720, 725, cert. denied, 342 U.S. 836 (1951)).
This statutory inference is a factor that the jury may
accept or reject in determining whether a defendant burned a
cross with the intent to intimidate a victim. This inference
alone, however, is clearly insufficient to establish beyond a
reasonable doubt that a defendant burned a cross with the
intent to intimidate. And, this statutory inference does not,
and cannot, absolve the Commonwealth of its burden to prove
each element of Code 18.2-423 beyond a reasonable doubt.
Moreover, the jury in Black's trial was specifically
instructed as follows:
"INSTRUCTION NO. 6
"THE COURT INSTRUCTS THE JURY THAT:
"The burden is upon the Commonwealth to prove
by the evidence beyond a reasonable doubt every
material and necessary element of the offense
charged. It is not sufficient that the jury believe
the defendant's guilt probable, or more probable
than his innocence. Suspicion or probability of
guilt, however strong, will not authorize a
conviction. The evidence must prove his guilt
beyond a reasonable doubt. The jury shall not
speculate or go outside the evidence to consider
what they think might have taken place, but you are
to confine your consideration to the evidence
introduced by the Commonwealth and the defense and
unless you believe that the guilt of Barry Elton
Black has been proved beyond a reasonable doubt as
to every material and necessary element of the
offense charged against him, then you shall find him
not guilty."
. . . .
"INSTRUCTION NO. 8
"THE COURT INSTRUCTS THE JURY THAT:
"The defendant is charged with the crime of
placing a burning cross in a public place with the
intent to intimidate. The Commonwealth must prove
beyond a reasonable doubt each of the following
elements of that crime:
"(1) That the defendant burned or caused to be
burned a cross in a public place; and
"(2) That he did so with the intent to
intimidate any person or group of persons.
"If you find from the evidence that the
Commonwealth has proved beyond a reasonable doubt
each of the above elements of the offense as
charged, then you shall find the defendant guilty,
but you shall not fix the punishment until your
verdict has been returned and further evidence has
been heard by you.
"If you find that the Commonwealth has failed
to prove beyond a reasonable doubt either or both of
the elements of the offense, then you shall find the
defendant not guilty."
As these jury instructions indicate, the Commonwealth was
required to prove each and every element of its case,
including the requirement of intimidation, beyond a reasonable
doubt.
V.
For the foregoing reasons, I would affirm the judgments
of the Court of Appeals.
* Justice Keenan did not participate in the hearing and
decision of this case.
Because of the similar constitutional challenges
presented in these consolidated cases, our references to
Black's contentions shall be inclusive of those mounted by
O'Mara and Elliott.
See Police Aid Requested by Teacher: Cross is Burned in
Negro's Yard, Richmond News Leader, Jan. 21, 1949, at 19;
Cross Fired Near Suffolk Stirs Probe: Burning Second in Past
Week, Richmond Times-Dispatch, Jan. 23, 1949, 2, at 1; Huge
Cross is Burned on Hill Just South of Covington, Richmond
Times-Dispatch, Apr. 14, 1950, at 6; Cross Burned at Manakin;
Third in Area, Richmond Times-Dispatch, Feb. 26, 1951, at 4;
Cross is Burned at Reedville Home, Richmond News Leader, Apr.
14, 1951, at 1; `State Might Well Consider' Restrictions on Ku
Klux Klan, Governor Battle Comments, Richmond Times-Dispatch,
Feb. 6, 1952, at 7; Bill to Curb KKK Passed by the House,
Richmond Times-Dispatch, Mar. 8, 1952, at 5; Name Rider
Approved by House: Measure Now Goes to Battle, Richmond News
Leader, Feb. 23, 1952, at 1; Governor Backs Curb on Ku Klux
Activities, Richmond Times-Dispatch, Feb. 10, 1952, 2, at 1.
Code 18.1-365 stated in pertinent part:
It shall be unlawful for any person or persons to place
or cause to be placed on the property of another in the
Commonwealth of Virginia a burning or a flaming cross or any
manner of exhibit in which a burning or flaming cross, real or
simulated, is a whole or a part, without first obtaining
written permission of the owner or occupier of the premises so
to do.
1952 Va. Acts ch. 483 2 at 777.
See 1968 Va. Acts ch. 350 at 450; 1975 Va. Acts ch. 14
at 90, ch. 15 at 174.
It is important to note that R.A.V. did not interpret the
First Amendment to forbid "underinclusiveness." To the
contrary, the Court held that:
In our view, the First Amendment imposes
not an "underinclusiveness" limitation but
a "content discrimination" limitation upon
a State's prohibition of proscribable
speech. There is no problem whatever, for
example, with a State's prohibiting
obscenity (and other forms of proscribable
expression) only in certain media or
markets, for although that prohibition
would be "underinclusive," it would not
discriminate on the basis of content.
Id. at 387. Of course, the subjects of the proscription
expressly stated in the St. Paul ordinance were symbols and
words, including a burning cross or a Nazi swastika, evoking
"anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender." As the Court noted,
excluded from proscription was identical behavior with a
different subject, such as "political affiliation, union
membership, or homosexuality." Id. at 391. The infirmity
addressed in R.A.V., as in the cases before this Court, was
not "underinclusiveness;" rather, it was the selective
discrimination in the ordinance based upon content.
S.C.CODE ANN. 16-7-120 (1985) provided:
It shall be unlawful for any person to place or cause to be
placed in a public place in the State a burning or flaming
cross or any manner of exhibit in which a burning or flaming
cross, real or simulated, is the whole or a part or to place
or cause to be placed on the property of another in the State
a burning or flaming cross or any manner of exhibit in which a
burning or flaming cross, real or simulated, is the whole or a
part, without first obtaining written permission of the owner
or occupier of the premises so to do.
1952 Va. Acts ch. 483 2 at 777.
MD. ANN. CODE art.27, 10A (1957, 1992 Repl. Vol.)
provided in pertinent part:
It shall be unlawful for any person or persons to burn or
cause to be burned any cross or other religious symbol upon
any private or public property within this State without the
express consent of the owner of such property and without
first giving notice to the fire department which services the
area in which such burning is to take place.
The Virginia statute prohibits cross-burning "on the
property of another, a highway or other public place."
Remarkably, it sweeps within its prohibition the act "on the
property of another" with or without permission.
Additionally, because we resolve these questions under
the First Amendment to the United States Constitution, it is
unnecessary to address Elliott's and O'Mara's additional
argument that Article I, 12 of the Virginia Constitution is
also violated.
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