Virginia v. Black

Virginia v. Black

Litigants=Virginia v. Black et al.
ArgueDate=December 11
DecideDate=April 7
FullName=Commonwealth of Virginia, Petitioner, v. Barry Elton Black, Richard J. Elliott, and Jonathan O'Mara
Citation=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=On writ of certiorari to the Supreme Court of Virginia. Black v. Commonwealth, 262 Va. 764, 553 S.E.2d 738 (2001)
Subsequent=Appeal after remand at Elliott v. Commonwealth, 267 Va. 464, 593 S.E.2d 263 (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.
Majority=O'Connor (parts I, II, III)
JoinMajority=Rehnquist, Stevens, Scalia, Breyer
Concurrence=O'Connor (parts IV, V)
JoinConcurrence=Rehnquist, Stevens, Breyer
JoinConcurrence/Dissent=Thomas (parts I, II)
JoinConcurrence/Dissent2=Kennedy, Ginsburg
LawsApplied=U.S. Const. amend I

"Virginia v. Black et al.", 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.


In cases such as "Chaplinsky v. New Hampshire", ussc|315|568|1942, "New York Times Co. v. Sullivan", ussc|376|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.


In "Virginia v. Black et al." the Court found that Virginia's statute against cross burning done with an attempt to intimidate is constitutional because such expression has a long and pernicious history as a signal of impending violence. Justice O' Connor delivered the opinion stating, "a state, consistent with the First Amendment, may ban cross burning carried out with the attempt to intimidate." In so doing, the Court created a new area of constitutionally unprotected speech for "true threats." Under that carve-out, "a State may choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm."

The Court did, however, strike down the provision in Virginia's statute which stated "Any such burning of a cross shall be "prima facie" evidence of an intent to intimidate a person or group of persons," holding that the provision was facially unconstitutional because of its "indiscriminate coverage." The state, therefore, must prove intent to intimidate.


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."

ee also

* List of United States Supreme Court cases, volume 538

External links

* [ Full text of the Court's decision on FindLaw]

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