Virginia had a law that made
it a crime to burn a cross with the intent to intimidate people.
The law provided that the
simple act of burning the cross was prima facie evidence of an intent to intimidate.
Black was a member of the Ku
Klux Klan and burned a cross at a rally on private property. He was arrested
and charged with violating the Virginia law.
Black was convicted. He
appealed.
Black argued that his intent
in burning the cross was to inspire his KKK buddies, not to intimidate
anyone. The cross was burned on private property, and Black had no knowledge
that anyone who might have been intimidated could even see it.
Black argued that the
Virginia law was a violation of his constitutional right to free
speech under the 1st
Amendment.
Black argued that the
Virginia law was unconstitutional because it outlawed only certain kinds
of speech and was therefore content-based. Content-based
laws are almost always found unconstitutional under the 1st
Amendment.
See R.A.V. v. City of
St. Paul, Minnesota (505 U.S. 377
(1992)).
Separately, Elliot and O'Mara
burned a cross on their neighbor's property in retaliation for a dispute.
They were also arrested and charged with violating the Virginia law.
Elliot and O'Mara were
convicted. They appealed.
Eventually the cases were
combined and heard by the US Supreme Court.
The US Supreme Court
overturned the convictions, and found the Virginia law unconstitutional.
The US Supreme Court
acknowledged that under the 1st Amendment, it is permissible to censor some forms of
speech when they have an intent to intimidate, incite violence, or are a
true threat.
Those are known as fighting
words.
However, the Court found
that the Virginia law was not constitutional because it instructed juries
to find that all cross burnings were assumed to have been done with an
intent to intimidate.
The Court looked at the
historical record, and found that crosses had been burned not only to
intimidate and scare people, but also for other things, like inspiring
people or to express a shared ideology. Therefore you couldn't say that
all cross burning was a form of
intimidation.
In a dissent it was argued
that pretty much all cross burning is done with an intent to intimidate.
And since the Virginia law's presumption is rebuttable, juries could still decline to convict in those
few cases where there was no intent to intimidate.
