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Striking a balance on hate speech.

Is some speech so inherently offensive that it should be subject to government prohibition? Few topics in constitutional law have received more scholarly attention in the last two decades than the government's power to regulate hate speech to protect audiences from harassment and intimidation. The U.S. Supreme Court's recent decision in the case of Virginia v. Black, which concerned the government's power to punish cross-burning, offers important clarification in this area. (1)

The Court was clear that no symbol, no matter how offensive, can be deemed beyond the pale and outside the scope of the First Amendment's protection. But the justices were equally emphatic that the government may punish a person who burns a cross to intimidate another. The decision struck a balance between protecting speech and safeguarding racial minorities from harassment.

Black involved two companion cases, and their factual differences are key to under standing the Court's decision.

One involved Barry Black, who led a Ku Klux Klan rally in Carroll County, Virginia. About 25 to 30 people attended the rally, which was held in an open field with the permission of the owner. The field was relatively isolated, though it was visible to some residents in the area. A large cross was placed about 300 to 350 yards from the road and set on fire.

The other case centered on Richard Elliott and Jonathan O'Mara, who burned a cross in the yard of an African-American family in Virginia Beach, Virginia. The defendants drove a truck onto the family's property, planted a cross 20 feet from the house, and set it on fire.

In both cases, the defendants were prosecuted under a Virginia stature that states, "It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway, or other public place." (2) The law also provides that "any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." (3)

In both cases, the defendants were found guilty and the Virginia Court of Appeals affirmed the convictions. But the state supreme court subsequently consolidated the cases and held that the Virginia law was unconstitutional on its face, concluding that the statute was an impermissible content-based restriction on freedom of speech. (4)

The Supreme Court and cross-burning

The Supreme Court addressed three issues in deciding Black. First, is cross-burning so offensive as to be beyond the scope of the First Amendment? If not, and if cross-burning qualifies as protected speech, is it punishable by the government if it is done to intimidate? If so, what is sufficient to prove an intention to intimidate; can the very act of cross-burning create a prima facie case of intimidation?

This is how the nine justices answered these questions. First, eight of the nine justices--all but Justice Clarence Thomas--agreed that cross burning is a form of expression safeguarded by the First Amendment. Thomas, in a sole dissent, argued that cross-burning is a unique symbol in U.S. history, a symbol that has been used to express hate and to intimidate, targeted especially against African-Americans and Jews. (5) Thomas stressed that it is a symbol often linked to violence and observed that "for those not easily frightened, cross-burning has been followed by more extreme measures, such as beatings and murder." (6) In fact, at oral argument, Thomas, who rarely asks questions of the attorneys--startled the audience by eloquently arguing that cross-burning is inherently a symbol of oppression and intimidation.

But the other eight justices rejected Thomas's view that cross-burning is completely beyond the scope of First Amendment protection. Undoubtedly, they were concerned about the danger in finding that some symbols are so offensive as to be inherently unworthy of constitutional protection. Many other symbols--for example, burning a flag, painting a swastika, wearing white robes and hoods--also are deeply offensive. Each one powerfully conveys a message, however much a majority of the public dislikes it.

The Supreme Court previously had ruled that flag-burning is constitutionally protected speech. (7) Likewise, the Court earlier had declared unconstitutional a city ordinance that prohibited burning a cross or painting a swastika in a manner likely to "arouse anger, alarm, or resentment in others." (8)

Symbols communicate messages, and the First Amendment prohibits the government from banning any message, even one of hate. That is why none of the other justices were willing to join Thomas's powerful dissent. Allowing the government to prohibit particular messages and symbols would radically change the law and risk a slippery slope of suppression that would have no stopping point.

Intent to intimidate

Although the government cannot outlaw all cross-burning after Black, the Court ruled that the activity may be punished when it is done to intimidate. Justice Sandra Day O'Connor, writing for the Court, reaffirmed prior decisions holding that "true threats" are not protected by the First Amendment. (9) Freedom of speech does not protect making other people fear for their safety.

O'Connor's opinion offered more clarification than any prior decision concerning what constitutes a "true threat." She explained: "'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." (10)

The Court observed that true threats may be prohibited, consistent with the First Amendment, because "a prohibition on true threats 'protect[s] people from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.'" (11)

Although prior Supreme Court decisions had held that true threats are not protected by the First Amendment, in Black the Court discussed "intimidation" for the first time. The Court said, "Intimidation, in the constitutionally proscribable sense of the word, is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." (12) Therefore, Black is important in holding that cross-burning and other speech is not protected if it is done to make people fear bodily harm or death.

Addressing the third question, the Court held that to punish a person for burning a cross, the government must prove that the action constituted a true threat in the context in which it occurred. The Virginia law declared the act of cross-burning to be prima facie evidence of intent to intimidate. The Supreme Court explained that this is not sufficient; that more than just the cross-burning itself must be shown to prove an intent to intimidate. A court must look to the circumstances in which a cross-burning occurred in deciding whether it constitutes a true threat unprotected by the First Amendment.

The two cases before the Court provided an excellent vehicle for applying this principle. The Court, with only Thomas dissenting, affirmed the Virginia Supreme Court's conclusion that Black's conviction, for burning a cross on a relatively isolated farm as part of a rally, violated the First Amendment. The cross was burned not to intimidate a person or group, but as part of a Klan rally to express that organization's views.

In contrast, the actions by Elliott and O'Mara--burning a cross in the yard of a home owned by an African-American family--were quite different. The Court remanded this case for an inquiry into whether the state could prove the requisite intent to intimidate. Based on the facts, the justices seemed to have little doubt that prosecutors could do so.

In Black, the Court carefully avoided holding either that all cross-burning may be banned or that it never may be prohibited. The Court recognized the awful history of cross-burning and its power as a symbol of hate and oppression. But the Court also realized that a government ban on any symbol or message is inconsistent with the First Amendment.

Thus, the Court struck a balance likely to be important in future cases involving hate speech. "True threats" are not protected by the First Amendment, and hate speech, such as cross-burning, may be banned when it constitutes a true threat. But the burden is on the government to prove that an action is a true threat under the circumstances.


(1.) 123 S, Ct. 1536 (2003).

(2.) VA. CODE ANN. [section] 18.2-423 (West 2003).

(3.) Id.

(4.) Black v. State, 553 S.E.2d 738, 746 (Va. 2001).

(5.) 123 S. Ct. 1536, 1563-64 (Thomas, J. dissenting).

(6.) Id. at 1563.

(7.) Texas v. Johnson, 491 U.S. 397 (1989).

(8.) R.A.V.v. City of St. Paul, 505 U.S.377, 380 (1992).

(9.) Black, 123 S. Ct. 1536, 1547-48 (citing Watts v. United States, 394 U.S. 705, 708 (1969)); R.A.V., 505 U.S. 377, 388.

(10.) Black, 123 S. Ct. 1536, 548.

(11.) Id. (citing R.A.V., 505 U.S. 388).

(12.) Id.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.
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Author:Chemerinsky, Erwin
Date:Jul 1, 2003
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