Virginia v. Black

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Virginia v. Black

Argued December 11, 2002
Decided April 7, 2003


Full case name:	Commonwealth of Virginia, Petitioner, v. Barry Elton Black, Richard J. Elliott, and Jonathan O'Mara

Citations:	538 U.S. 343; 123 S. Ct. 1536; 155 L. Ed. 2d 535; 2003 U.S. LEXIS 2715; 71 U.S.L.W. 4263; 2003 Cal. Daily Op. Service 2954; 2003 Daily Journal DAR 3767; 16 Fla. L. Weekly Fed. S 203

Prior history:	On writ of certiorari to the Supreme Court of Virginia. Black v. Commonwealth, 262 Va. 764, 553 S.E.2d 738, 2001 Va. LEXIS 144 (2001)

Subsequent history:	Appeal after remand at Elliott v. Commonwealth, 267 Va. 464, 593 S.E.2d 263, 2004 Va. LEXIS 41 (Va., Mar. 5, 2004)

Holding

Virginia's statute against cross burning is unconstitutional because it places the burden of proof on the defendant to demonstrate that he or she did not intend the cross burning as intimidation.

Court membership

Chief Justice: William Rehnquist
Associate Justices: John Paul Stevens, Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer

Case opinions

Majority by: O'Connor (parts I, II, III)
Joined by: Rehnquist, Stevens, Scalia, Breyer
Concurrence by: O'Connor (parts IV, V)
Joined by: Rehnquist, Stevens, Breyer
Concurrence by: Stevens
Concurrence/dissent by: Scalia
Joined by: Thomas (parts I, II)
Concurrence/dissent by: Souter
Joined by: Kennedy, Ginsburg
Dissent by: Thomas

Laws applied

U.S. Const. amend I

Virginia v. Black, 538 U.S. 343 (2003), was a First Amendment case decided in the Supreme Court of the United States. The respondent, Barry Elton Black, had been convicted of violating a Virginia statute against cross burning. In this case, the Court struck down that statute because it takes the act of cross burning as prima facie evidence of intent to intimidate. Such a provision, they argue, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology." However, cross-burning can be a criminal offense if the intent to intimidate is proven.

1 Background
2 Majority
3 Dissents
4 External links

[edit] Background

In cases such as Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), New York Times Co. v. Sullivan, 376 U.S. 254 (1964), R. A. V. v. City of St. Paul (1992) and others, the Supreme Court has addressed various areas of controversial speech. The Court has frequently sided with the speakers, but occasionally the Court has sided with the government and acknowledged its (limited) power to pass laws protecting citizens from specific types of harmful speech.

[edit] Majority

In Virginia v. Black the Court found that Virginia's statute against cross burning is unconstitutional because it places the burden of proof on the defendant to demonstrate that he or she did not intend the cross burning as intimidation. Convictions in which the intent to intimidate was proven, however, can stand.

[edit] Dissents

Justice Clarence Thomas argued that cross-burning itself should be a First Amendment exception, like flag-burning (see Justice William Rehnquist’s dissenting opinion in Texas v. Johnson), due to its historical associations with terrorism. "[T]his statute," Thomas writes, "prohibits only conduct, not expression. And, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point."

Justice David Souter argued that cross-burning, even with the proven intent to intimidate, should not be a crime under the R. A. V. v. City of St. Paul precedent because of "the statute’s content-based distinction."