Virginia v. Black

538 U.S. 343 (2003)

Quick Summary

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Black (defendant), Elliott, and O’Mara challenged their convictions under a Virginia statute prohibiting intimidating cross burning. The issue was whether this statute violated their First Amendment rights.

The Supreme Court concluded that while states can outlaw cross burning with intent to intimidate, they cannot presume such intent from the act itself. This presumption in Virginia’s law was deemed unconstitutional, leading to a reversal of the convictions based on it.

Facts of the Case

Facts of the case Icon

Barry Black (defendant), Richard Elliott, and Jonathan O’Mara who were charged under a Virginia statute prohibiting cross burning with the intent to intimidate. Black led a Ku Klux Klan rally where a cross was burned, and Elliott and O’Mara tried to burn a cross on an African-American neighbor’s yard.

Virginia’s law also stated that cross burning itself is prima facie evidence of intent to intimidate, which became a pivotal point in the case. The defendants contested the constitutionality of this statute, arguing that it violates the First Amendment.

Procedural Posture and History

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  1. Barry Black led a Ku Klux Klan rally where a cross was burned and was subsequently charged under Virginia’s cross-burning statute.
  2. Richard Elliott and Jonathan O’Mara were charged for attempting to burn a cross in a neighbor’s yard.
  3. At trial, Black objected to the jury instruction that cross burning itself could infer intent to intimidate.
  4. The Court of Appeals of Virginia affirmed Black’s conviction. Elliott and O’Mara’s convictions were also affirmed.
  5. The Supreme Court of Virginia reversed the decisions, holding the statute unconstitutional.
  6. The Supreme Court of the United States granted certiorari to review the constitutionality of the statute.

I.R.A.C. Format


Issue Icon

Whether the Virginia statute that criminalizes cross burning with intent to intimidate and considers cross burning as prima facie evidence of intent to intimidate is constitutional under the First Amendment.

Rule of Law

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A state may prohibit cross burning carried out with intent to intimidate, but a statute cannot presume intent to intimidate from the act of cross burning alone without violating the First Amendment.

Reasoning and Analysis

Reasoning Icon

The Court acknowledged that while cross burning has a historical association with intimidation and violence, particularly linked to the Ku Klux Klan, it can also serve as a symbol of shared group identity or ideology without an intent to intimidate. The Court recognized the state’s power to ban cross burning with intent to intimidate based on its capacity for threatening behavior.

However, the Court found that automatically treating cross burning as evidence of intent to intimidate infringes upon the constitutional rights of free speech. It was determined that the prima facie evidence provision in Virginia’s statute was overbroad and could potentially criminalize protected speech, thus making it unconstitutional.


Conclusion Icon

The Supreme Court held that while states can ban cross burning intended to intimidate, the part of Virginia’s statute that considers any act of cross burning as prima facie evidence of intent to intimidate is unconstitutional. The convictions based on this presumption were reversed.

Key Takeaways

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  1. Cross burning can be prohibited by law if done with intent to intimidate.
  2. Automatically presuming intent to intimidate from the act of cross burning violates the First Amendment.
  3. The state must prove intent to intimidate in cases of cross burning without relying on presumption.

Relevant FAQs of this case

What considerations must a state make when drafting a law that imposes restrictions on symbolic speech?

When crafting legislation that limits symbolic speech, states must ensure that it is narrowly tailored to serve a significant government interest without unnecessarily infringing upon First Amendment rights. The law should be specific enough to target conduct with a direct connection to the governmental interest, such as preventing harm or intimidation, while allowing ample room for expressive conduct that does not pose similar risks.

  • For example: A state may prohibit threats of violence written in graffiti, focusing on the threat rather than the medium of spray paint, which can also be used for lawful artistic expression.

How does the intention behind an act affect its classification as protected or unprotected speech?

The intent behind an action is crucial in determining whether it is protected under the First Amendment. Speech that is intended to intimidate or incite imminent lawless action is not protected, while speech meant purely for communication or expressing a viewpoint, no matter how unpopular, typically remains safeguarded.

  • For example: Holding a sign at a protest is generally protected, but if the same sign includes a credible threat of violence towards an individual or group, it could be classified as unprotected speech.

Under what circumstances can the government impose presumptions in criminal statutes without violating constitutional rights?

The government may establish presumptions in criminal statutes if there is a rational connection between the fact proved and the ultimate fact presumed, and if the presumption does not undermine constitutional protections such as the presumption of innocence or the right to free speech. Additionally, there must exist sufficient safeguards that allow defendants to rebut the presumption.

  • For example: A law might presume intoxication at a certain blood alcohol content level for DUI offenses because there is scientific evidence of impaired ability to drive at that threshold; yet this can be contested with evidence like individual tolerance levels or testing inaccuracies.


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