These decisions, R. Paul and Virginia v. Black , addressed the constitutionality of laws banning cross burnings and gave the Court a chance to discuss the role of the practice in U. In Virginia v. Black , the Court held that states could ban cross burning undertaken with the intent to intimidate.
She wrote several pages outlining the role of cross burning in terrorizing African Americans and other opponents of the Klan.
She used historical evidence to support the ruling that a provision in the Virginia law was unconstitutional in allowing a jury to infer intent to intimate solely from the cross burning itself. This evidence led her to conclude that crosses were sometimes burned for expressive. Relying on a variety of evidence, including testimony from a victim of cross burning and newspaper articles from , when Virginia passed its law, Thomas held that intimidation was the only meaning cross burning could have in the United States.
After R. This article was originally published in Professor Rob Kahn teaches at St. He has also written on topics such as cross-burning in the United States, blasphemy regulation and the defamation of religions debate, and use of law to ban statements about the past.
Bell, Jeannine. California, U. The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. City of St. Paul , U. The protections afforded by the First Amendment , however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.
New Hampshire, U. New Hampshire , supra , at New Hampshire , supra , at ; see also R. Paul , supra , at listing limited areas where the First Amendment permits restrictions on the content of speech.
Cohen v. Ohio, U. Pro-Choice Network of Western N. See Watts v. The speaker need not actually intend to carry out the threat.
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.
Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As noted in Part II, supra , the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence. The Supreme Court of Virginia ruled that in light of R. Paul , supra , even if it is constitutional to ban cross burning in a content-neutral manner, the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint.
It is true, as the Supreme Court of Virginia held, that the burning of a cross is symbolic expression. Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner. The fact that cross burning is symbolic expression, however, does not resolve the constitutional question. The Supreme Court of Virginia relied upon R. Paul , supra, to conclude that once a statute discriminates on the basis of this type of content, the law is unconstitutional.
We disagree. Paul, Minn. We did not hold in R. Rather, we specifically stated that some types of content discrimination did not violate the First Amendment :. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. Consequently, while the holding of R. Unlike the statute at issue in R. Moreover, as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities.
Miller , 6 Kan. See Va. The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.
A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R. The Commonwealth added the prima facie provision to the statute in The court below did not reach whether this provision is severable from the rest of the cross-burning statute under Virginia law.
In this Court, as in the Supreme Court of Virginia, respondents do not argue that the prima facie evidence provision is unconstitutional as applied to any one of them.
Rather, they contend that the provision is unconstitutional on its face. The Supreme Court of Virginia has not ruled on the meaning of the prima facie evidence provision.
The prima facie evidence provision, as interpreted by the jury instruction, renders the statute unconstitutional. Chicago, U. Ferber, U. Joseph H. Munson Co. As construed by the jury instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case.
The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.
Taxpayers for Vincent , U. The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech.
The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As the history of cross burning indicates, a burning cross is not always intended to intimidate. Since then, cross burning has become nearly synonymous with the KKK—its primary purpose being that of intimidation. But incorporating religious iconography can add a bit of mystery to menace.
And to an extent the law has agreed. The Virginia v. Black Supreme Court decision struck down a state statute which classified cross burning as prima facie intimidation. Today, membership in the KKK is down to around 5, nationwide.
And if recent controversy over a planned North Carolina cross burning in March, is any indicator, the practice will likely persist for as long as there is hate to fuel it.
This article is part of our White Terror U. History shapes the world around us — from national elections to cultural debates to marches in cities across the country. At Timeline , we spread knowledge of the past to help shape a better future. If you want to do the same, please share this and other Timeline stories and join us on Facebook and Twitter.
Sign in. Why does the Ku Klux Klan burn crosses? They got the idea from a movie.
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