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Virginia v. Black

Citation. 538 U.S. 343 (2003)
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Citation. 538 U.S. 343 (2003)

Brief Fact Summary.

Three defendants were convicted under a state law banning cross-burning with the intent to intimidate. Cross burning has a long, racist history in the United States. The defendants appealed their convictions, arguing that the law was a speech restriction that was unconstitutional under the First Amendment.

Synopsis of Rule of Law.

States can enact content-based restrictions only for a few enumerated categories of speech that are of such slight social value that any benefit they have is outweighed by the social interest in order and morality. Chaplinsky.

While content-based restrictions are impermissible when they discriminate based on viewpoint, states can enact content-based restrictions that restrict categories of speech that can be proscribed, where the restrictions are based on the reason that the broader category of speech can be proscribed to being with. For example, states can prohibit specifically those threats made against the President, because the interest justifying the regulation of threats in general have special force when threats are made against the president. In contrast, it would be impermissible viewpoint discrimination to regulate only those threats against the president that mention the president’s policy on inner city aid. R.A.V.


Virginia enacted a statute banning cross-burning with an intent to intimidate a person or group of people. The statute contained a provision stating that cross-burning shall be treated as prima facie evidence of intent to intimidate.

Barry Black led a KKK rally in Virginia, during which the group burned a 25 to 30 foot cross in an open field, between 300 and 350 yards from a road. About 40 to 50 cars passed the site. Black was charged with cross burning with the intent to intimidate, in violation of the state law. At trial, the jury was instructed that cross-burning was sufficient evidence from which to infer the required intent. The jury convicted Black.

Richard Elliott and Jonathan O’Mara attempted to burn a cross on the yard of Elliott’s new neighbor, James Jubilee, who was Black. O’Mara plead guilty. At Elliott’s trial, the court did not instruct the jury on the prima facie provision of the state cross-burning law. The jury convicted Elliott.


Did Virginia violate the First Amendment by criminalizing cross-burning with the intent to intimidate?

Did Virginia violate the First Amendment by treating cross-burning as prima facie evidence of the intent to intimidate?


Virginia did not violate the First Amendment by outlawing cross-burning with the intent to discriminate, but it did violate the First Amendment by treating cross-burning as prima facie evidence of the intent to intimidate.


Justice Thomas

Cross-burning is conduct, not expression, and so First Amendment protections do not apply.


Justice Souter

Cross-burning with the intent to the intimidate cannot be regulated, because that is not the type of content-based restriction that R.A.V. allows. It is impermissible viewpoint discrimination.


Under R.A.V., it is constitutional for Virginia to outlaw cross burning done with the intent to intimidate. However, the law is unconstitutional, because it allows cross-burning to be considered prima facie evidence of intent to intimidate.

True threats are a category of speech that can be regulated. Cross-burning with the intent to intimidate can be outlawed, because this is the kind of content-based restriction that is permitted under R.A.V. Virginia can outlaw intimidation, so it can also choose to outlaw specific sub-sets of intimidation, for which the reason that intimidation can be proscribed at all—that it is likely to inspire fear of physical harm—is particularly evident. Cross-burning with the intent to intimidate has a long and racist history in the United States, so it is a subset of intimidation that Virginia can choose to regulate.

While there is a long history of cross-burning being used for racist intimidation in the United States, cross-burning has also been used as a symbol of identity. This type of cross-burning constitutes political speech, and proscribing it would create a risk of the suppression of ideas. Political speech goes to the core of what the First Amendment is meant to protect.

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