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Virginia v. Black

Citation. 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).
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Citation. 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).

Brief Fact Summary.

Defendant challenged his conviction on First Amendment grounds after he was convicted of burning a cross with the intent of intimidating a person in violation of state law.

Synopsis of Rule of Law.

The First Amendment permits restrictions upon the content of speech in a few limited areas which are of such slight social value, where any benefit is clearly outweighed by the social interest in order and morality. As such, a state may ban a true threat, including the expression of intent to commit an act of unlawful violence to a particular group.


Defendant led a Ku Klux Klan (KKK) rally in Carroll County, Virginia. A 25- to 30-foot cross was burned at the end of the rally 300-350 yards from the road. As the cross burned, the KKK played Amazing Grace over the loudspeakers. The sheriff then entered the rally and asked her was in charge. Defendant responded.

Defendant was charged with burning a cross with the intent of intimidating a person or group of persons in violation of state law. At his trial, the trial court instructed the jury that “the burning of a cross by itself is sufficient evidence from which you may infer the required intent.” Defendant was found guilty and challenged his conviction on First Amendment grounds.


Whether the Virginia statute or the judge’s instructions violate the First Amendment.


No. Neither the Virginia statute nor the judge’s instructions violate the First Amendment.


Justice Thomas

Cross burning, without exception, is a signal of impending terror and lawlessness. It instills in its victims a well-grounded fear of physical violence. The statute prohibits only conduct, not expression. And, just as one cannot burn someone’s house down to make a political point, those who hate cannot terrorize and intimidate to make their point.


Justice Scalia

I agree a state may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate. There is, however, no justification for the decision to invalidate the state law on its face because defendants have plenty of time to rebut the evidence against them. As such, the Court cannot claim that improper convictions will result from the prima facie provision alone.

Justice Souter

I agree that the law makes a content-based distinction within the category of punishable intimidating or threatening expression. I disagree that an exception should then save the law from unconstitutionality. To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas.


When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. A state can choose to prohibit specific subsets of intimidation.

Here, the Klan has previously used cross burnings as a tool of intimidation and a threat of impending violence. While a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives.

This type of cross burning can constitute political speech protected by the First Amendment. It is a ritual at Klan gatherings. Under past precedent, we have held that it is constitutional to allow cross burnings. That being said, the law at issue here is is unconstitutional because it allows for cross burning to be considered prima facie evidence of intent to intimidate. Judgement affirmed.

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