Term Paper: Constitutional Law Cross Burning or Right Not to Associate Constitutional Issues

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Constitutional Law: Virginia v. Black

The First Amendment of the United States constitution provides "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Const. amend. I.

While the First Amendment appears relatively straightforward, the fact is that all speech is not considered equal under the First Amendment. In fact, some forms of speech, such as fighting words or obscenity, are not protected by the First Amendment. Traditionally, fighting words have been those words or symbolic speech forms that are likely to incite immediate violence. However, the recent trend in state laws has been to expand the definition of fighting words to cover patently offensive words, which may not actually be linked to violence. In order to bring this speech under the umbrella of fighting words, state legislatures have attempted to legislate in a presumption of threat or intimidation.

There is little question that a burning cross is offensive, at the very least, to a large group of Americans. In a country that is less than 100 years away from the heyday of the Ku Klux Klan, which used the burning cross to threaten and intimidate African-Americans, it certainly could never be maintained that a burning cross was a benign form of speech. However, the fact remains that the Ku Klux Klan no longer rules the South and that the threat of violence against African-Americans by hate groups like the Ku Klux Klan is no longer imminent in daily life. Therefore, there was a genuine question whether a statute aimed at criminalizing the burning of a cross could be constitutional. Nevertheless, Virginia attempted to do just that. Va. Code Ann. 18.2-423 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. 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. Va. Code Ann. 18.2-423 (1996).

Three defendants, Barry Black, Richard Elliott, and Jonathan O'Mara were convicted of violating Va. Code Ann. 18.2-423. Black burned a cross while leading a Ku Klux Klan rally on private property. In addition to burning the cross, Black had speakers that talked about minorities. Some of the speakers spoke about having a desire to hurt black people. The jury at black's trial was instructed that the burning of the cross could be sufficient to infer the intent to intimidate. Black was found guilty.

The circumstances behind the charges against Elliot and O'Mara were different. Unlike Black, Elliot and O'Mara attempted to burn a cross on another's property. Prior to the cross-burning incident, Elliot had been heard by the victim shooting firearms in the backyard. Elliot and O'Mara were not affiliated with the Ku Klux Klan. O'Mara pleaded guilty and Elliot was convicted at trial. All three defendants challenged the constitutionality of Va. Code Ann. 18.2-423, and it eventually came before the U.S. Supreme Court.

While careful to acknowledge the deplorable history of the Ku Klux Klan in America and the use of the burning cross to threaten and intimidate, the Court determined that the Virginia statute was unconstitutional. Specifically, the court held that:

while a State, consistent with the First Amendment, may ban cross burning carried out with 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. Black v. Virginia, 538 U.S. 343, at 343.

The important part of the holding was not that the Court found Va. Code Ann. 18.2-423 unconstitutional, but that Court believed that states could ban cross burning if done with the intent to intimidate. The factor that made the Virginia Statute unconstitutional was that it made the very fact of the burning prima facie evidence of intent to intimidate.

Although it might be difficult for non-Klan members to understand how a burning cross could not be considered prima facie evidence of intent to intimidate, the Court also had to be mindful of the freedom of association, also guaranteed by the Bill of Rights. The fact that the goals and aims of the Ku Klux Klan may be antithetical to the beliefs of most Americans does not mean that members of the Klan are not entitled to the same Constitutional protections as other Americans. As noted by the Court, "throughout the history of the Klan, cross burnings have also remained potent symbols of shared group identity and ideology. The burning cross became a symbol of the Klan itself and a central feature of Klan gatherings." Black, 538 U.S. At 356. Therefore, for members of the Klan, the burning cross had at least two possible meanings. "In short, a burning cross has remained a symbol of Klan ideology and of Klan unity." Id. At 357.

Despite the fact that the burning cross can have meanings outside of intimidation, the Court acknowledged:

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. Id. At 550.

Because the burning cross, while almost always considered hate speech, was not always meant to intimidate or threaten, the real issue before the Court was whether or not a cross burning could be criminalized because it was hateful. The protection of the First Amendment is broad, in fact, in Texas v. Johnson, 491 U.S. 397 (1989), the Court made it clear that "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Id. At 414. That said, as established in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), "there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." Id. At 571-572. In fact, the First Amendment permits restrictions on speech in areas that 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." Id. At 572. In fact, there is no First Amendment protection for words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. Thus, the issue before the Court was whether the First Amendment's freedom of speech guarantee extends to cross burning.

The Court has consistently given a narrow interpretation to those categories of speech that do not deserve First Amendment protection. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Court determined that states could not forbid speech or symbolic speech unless it was "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. At 447. Furthermore, states are permitted to ban a "true threat." Watts v. United States, 394 U.S. 705, 708 (1969). To constitute a true threat, "the speaker need not actually intend to carry out the threat." Black 538 U.S. At 360. Therefore, the Court determined that laws outlawing cross-burnings done for the purpose of intimidation are permissible under the First Amendment.

The problem with Va. Code Ann. 18.2-423 was that it made the fact that a cross had been burned prima facie evidence of intent to intimidate. In fact, the Court determined that 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." Black, 538 U.S. At 363. The Court found that 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… [END OF PREVIEW]

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