Virginia v. Black
Virginia v. Black is a significant Supreme Court case that examines the intersection of free speech and intimidation in the context of cross-burning. The case involved Barry Black and two other members of the Ku Klux Klan who were convicted under a Virginia law that classified cross-burning as a felony if done with the intent to intimidate. The Virginia Supreme Court initially overturned the convictions, citing a violation of the First Amendment. However, the U.S. Supreme Court ultimately upheld the constitutionality of the statute, clarifying that cross-burning can be punishable if intended to intimidate others. Justice Sandra Day O'Connor, writing for the majority, distinguished between cross-burning as a form of expression and as a threatening act. This ruling emphasized the nuanced nature of First Amendment protections, indicating that intent matters significantly in determining the legality of speech acts. The case highlights ongoing debates about hate speech, symbolic expression, and the legal boundaries of free speech in the United States.
Virginia v. Black
Date: September 11, 2002
Citation: 538 U.S 343
Issue(s): Symbolic speech; hate speech
Significance: In holding that government may not punish a person for burning a cross unless there is sufficient evidence of an intent to intimidate or threaten, the Supreme Court helped clarify what kind of hate speech may be proscribed.
Before Virginia v. Black, the Supreme Court’s rulings on First Amendment protection of unpopular and dangerous ideas had left many questions unanswered. In Chaplinsky v. New Hampshire (1942), the Court had held that face-to-face “fighting words” and insults might be punishable. The Court in R.A.V. v. City of St. Paul, however, had overthrown a conviction for a cross burning, finding that the city ordinance violated the First Amendment because of its “viewpoint discrimination” and its failure to distinguish between protected and unprotected speech.
Virginia v. Black involved Barry Black and two other Ku Klux Klan members who were convicted separately of violating a Virginia statute that had made it a felony to burn a cross “with the intent of intimidating any person or group.” The law specified that any such burning would be “prima facie evidence of intent to intimidate a person or group.” The Virginia Supreme Court overturned the convictions based on the conclusion that the statute violated the First Amendment.
The U.S. Supreme Court held by a 6-3 majority that the statute was constitutional so long as it was construed to punish the act of cross-burning when the intent was to intimidate or threaten other persons. Writing for the majority, however, Justice Sandra Day O’Connor went on to explain that it would be unconstitutional to punish a cross-burner whose intent was simply to communicate a viewpoint, such as pride of ancestry, without implying any threat or intimidation. Based on this analysis, the conviction of Barry Black was overturned, whereas the convictions of the other two men were remanded to the lower courts for reexamination consistent with the Supreme Court’s analysis of the law. Ironically, three of the more liberal justices held that the law was unconstitutional.