The Rehnquist Court (1986–2005)

First Amendment

Can a state pass a law criminalizing cross burning?

Yes, the U.S. Supreme Court ruled in Virginia v. Black (2003) that most of a Virginia law dealing with cross burning did not violate the First Amendment. The statute provided: “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.”

The defendants contended that the Court should follow its 1992 decision in R.A.V. v. City of St. Paul, in which the Court unanimously invalidated a city 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.” The Court ruled that the law was unconstitutional because it discriminated on the basis of content by targeting only a certain type of speech.

The U.S. Supreme Court distinguished the Virginia statute from the ordinance in R.A.V., noting that the Virginia statute did not single out certain types of cross burnings. Rather, the Virginia law bans all cross burning done with the 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 topic,” Justice Sandra Day O’Connor wrote for the Court. The Court also noted that cross burnings done with the intent to intimidate were a form of true threats, a category of expression entitled to no First Amendment protection. “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,” she wrote. “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.”

The Court did invalidate a part of the statute that said any cross burning is prima facie evidence of the intent to intimidate. The Court noted that there could be some cross burnings done without the intent to intimidate. “The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation,” O’Connor wrote. “But that same act may mean only that the person is engaged in core political speech.”


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