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Virginia v. Black

Citation. 538 U.S. 343 (2003)
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Brief Fact Summary.

Respondents were convicted of burning a cross with the intent of intimidating a person or group of persons in violation of Virginia’s cross-burning statute. At the trial, the jury was instructed that “intent to intimidate means the motivation to intentionally put a person in fear of bodily harm… and the fear must arise from the willful conduct of the accused.”

Synopsis of Rule of Law.

The First Amendment ordinarily denies a State “the power to prohibit dissemination of social, economic, and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.”


The State of Virginia has a statute that prohibits anyone with the intent of intimidating person or group of persons to burn a cross on the property of another or other public place; anyone who violates it shall be guilty of a felony and any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or a group. In 1998, a Ku Klax Klan rallied on a private property with ten houses in its vicinity of the rally. Neighbors heard Klan members speak about racist comments and hatred toward black people. At the conclusion of the rally, the Klan burned the cross.


Does Virginia’s statute that prohibits cross burning with “an intent to intimidate a person” violate the First Amendment?


No, while a State may, under the First Amendment, prohibit cross burning done with the intent to intimidate, the Virginia’s statute treating any cross burning a prima facie evidence of intent to intimidate makes the statute unconstitutional. The prima facie evidence provision ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment prohibits such a shortcut.


Justice Thomas

The majority ignores what the history has witnessed. The Ku Klux Klan has actively harassed, tortured, and murdered in this land and its members remain fanatically committed to oppose social progress and racial equality in the United States. This is sufficient to frame the Ku Klux Klan as a terrorist organization, which has used the most brutal methods in its effort to intimidate others, especially the minorities in the U.S. The Virginia statute was enacted only to ban intimidating conduct undertaken by a particular means. The statute in no way prohibits expression and one cannot burn down someone’s house to deliver a political message.


The prima facie evidence strips away the very reason why a State may prohibit cross burning with the intent to intimidate and permits a jury to convict in every cross-burning case where defendants exercise their constitutional right not to put on a defense. This will be true even where a Black defendant presents a defense and the jury will likely find an intent to intimidate regardless of the specific facts. Essentially, the statute allows the State to arrest and convict a person based solely on the facts of cross burning itself.

The provision of the statute would a risk of the suppression of ideas. While a cross burning may signify that the person is trying to intimidate others, the same act may mean the person is only engaged in core political speech, an act protected by the First Amendment. The prima facie evidence provision here blurs the distinction between these two meanings and thus, is unconstitutional on its face.

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