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Virginia v. Black

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Subject: United States free speech exceptions, Freedom of speech in the United States, Morse v. Frederick, Clarence Thomas, Hate crime
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Virginia v. Black

Virginia v. Black
Argued December 11, 2002
Decided April 7, 2003
Full case name Virginia v. Barry Elton Black, Richard J. Elliott, and Jonathan Oímara
Citations 538 U.S. 343 (more)
123 S.Ct. 1536, 155 L. Ed. 2d 535 (2003)
Prior history On writ of certiorari to the Supreme Court of Virginia. Black v. Commonwealth, 262 Va. 764, 553 S.E.2d 738 (2001)
Subsequent history Appeal after remand at Elliott v. Commonwealth, 267 Va. 464, 593 S.E.2d 263 (2004)
Argument Oral argument
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
Case opinions
Majority O'Connor (parts I, II, III), joined by Rehnquist, Stevens, Scalia, Breyer
Concurrence O'Connor (parts IV, V), joined by Rehnquist, Stevens, Breyer
Concurrence Stevens
Concur/dissent Scalia, joined by Thomas (parts I, II)
Concur/dissent Souter, joined by Kennedy, Ginsburg
Dissent 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. Three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. In this case, the Court struck down that statute to the extent that it considered cross burning as prima facie evidence of intent to intimidate. Such a provision, the Court argued, 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.


  • Background 1
  • Majority 2
  • Dissents 3
  • See also 4
  • External links 5


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.


In Virginia v. Black the Court found that Virginia's statute against cross burning is unconstitutional, but cross burning done with an intent to intimidate can be limited because such expression has a long and pernicious history as a signal of impending violence. Justice Sandra Day O'Connor delivered the opinion stating, "a state, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate." In so doing, the Court considered the speech to be constitutionally unprotected "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, as others have argued regarding flag-burning (see Justice William Rehnquist’s dissenting opinion in Texas v. Johnson), due to the historical association of cross-burning with terrorism. "[T]his statute," Thomas wrote, "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."

See also

External links

  • Full text of the Court's decision on FindLaw
  • Audio of oral arguments & the court's opinion announcement on Oyez (a service of the Chicago–Kent College of Law)
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