Virginia V. Black Essay ⋆ Criminal Justice Essay Examples ⋆ EssayEmpire

Virginia v. Black (2003) pitted two fundamental values against one another: a citizen’s right to free expression of ideas and society’s interest in curbing a pernicious form of hate crime. The U.S. Supreme Court had to determine whether a state statute that banned cross burning violated the free speech clause of the First Amendment to the U.S. Constitution. The court held that a state may make it a crime to burn a cross with the intent of intimidating another person or group of people. Virginia’s statute was nevertheless held unconstitutional because it contained a provision that allowed the judge or jury to find that the accused had the intent to intimidate others based only on the fact that a cross was burned. The unconstitutional portion of the statute would have allowed people to be punished for exercising their First Amendment rights. After the court’s decision in Virginia v. Black, the conflict between encouraging free speech and suppressing hate speech continued to simmer.

Virginia v. Black arose out of two incidents of cross burning. The first was at a Ku Klux Klan (KKK) rally on August 22, 1998. Barry Black led the rally. It was attended by approximately 30 people and included speeches about KKK beliefs, derogatory comments about minority races, and one attendee commenting that he would like to “randomly shoot the blacks.” The rally, which took place on private property abutting a public road, ended with the attendees gathering around a 25-to-30-foot cross that was set aflame. The local sheriff, who had been monitoring the rally from the public road, arrested Black for burning the cross. At his criminal trial, Black’s jury was instructed that if it found that Black had burned the cross, it could presume that he did so with the intent to intimidate others. Black was convicted.

The second incident arose out of a dispute between neighbors. James Jubilee, an African American, complained to Richard Elliot’s mother because Richard was using the Elliots’ backyard as a gun range. In apparent retaliation for the complaint, Elliot and two friends attempted to burn a cross in Jubilee’s yard. Jubilee found the remnants of the cross the following morning and contacted the police. The three individuals were convicted under the cross-burning statute. Black and two defendants from Elliot’s case appealed their convictions, claiming that the cross-burning ban violated their First Amendment right to free speech.

The First Amendment provides in part that “Congress shall make no law … abridging the freedom of speech.” Speech protected by the First Amendment can also include actions or symbols that are intended to convey a message. Cross burning is, in some instances, an example of symbolic speech. The Supreme Court has interpreted the free speech clause to mean that government actions are usually unconstitutional when they attempt to restrict speech based on the content of the speech or the viewpoint of the speaker. Such censorship is considered antithetical to the United States’ founding principles, particularly those which value political dissent. Although the right to free speech is broad, it is not absolute. For example, the court has held that government may regulate speech that is obscene or is intended to incite imminent violence. This type of speech is considered unprotected. The court has also held that the government may ban a “true threat.”

Intimidation is a type of true threat that occurs when the speaker intends to and does put another person in fear of death or serious bodily harm. In Black, the plurality of the court held that when a person burns a cross with the intent to intimidate others, it is a “particularly virulent” type of intimidation and is thus a true threat that can be banned by the state.

In coming to the conclusion that cross burning could be a true threat, the court discussed the long history of the KKK and flag burning in the United States. Although flag burning was not always central to KKK activities and ideology, it became so in the early 1900s. By the 1930s, cross burning was inextricably linked to Klan activities. The court found that cross burning is a symbol of the Klan’s ideology and unity. The Klan also used cross burning as a means of threatening those who were members of disfavored groups or those who disagreed with their ideology. In support of these findings, the court pointed to the fact that violence often occurs in conjunction with or after incidents of cross burning.

Regardless of the public scorn for the practice of cross burning, it is expressive activity that can be protected by the First Amendment. Indeed, standing alone, the act of burning a cross is probably protected speech. If a person burns a cross to show group solidarity, to make a statement of political or social ideology, or as an artistic statement, the act is protected by the First Amendment. Because of this, the court held that Virginia’s statute was unconstitutional because it allowed a jury to presume the actor’s intent was intimidation based only on the fact that the cross was burned.

Bibliography:

Newton, M. and J. A. Newton. The Ku Klux Klan: An Encyclopedia. New York: Garland, 1991.
A.V. v. St. Paul, 505 U.S. 377 (1992). Texas v. Johnson, 491 U.S. 397 (1989).
Virginia v. Black, 538 U.S. 343 (2003).

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