In The SUPREME COURT of the UNITED STATES

COMMONWEALTH OF VIRGINIA, Petitioner, v. BARRY ELTON BLACK, RICHARD J. ELLIOTT,
AND JONATHAN O'MARA, Respondents.

STATEMENT OF THE CASE

For nearly a half-century, the Commonwealth of Virginia has banned the fear-inspiring practice of cross burning. Enacted in 1952, the statute at issue - Va. Code § 18.2-423 - was a well-advised response to domestic terrorism by the Ku Klux Klan. Yet, the statute is not limited to that group, nor to those whose acts of intimidation spring from similar racial or religious bigotry. Instead, the statute bans cross burning by anyone whose intent is to intimidate anyone for any reason.

The case at bar involves a consolidated appeal arising out of three separate convictions for violating the cross burning statute. Two of the convictions involved co-defendants in a 1998 act of cross burning in Virginia Beach. The third conviction involved a separate cross burning incident in 1998 in Carroll County, part of rural Southwest Virginia. The facts of each case are as follows:

Virginia Beach - May 2, 1998: There is no evidence that Richard J. Elliott and Jonathan O'Mara are members of the Klan. The record does not show that they hold any particular views on politics or race or any other subject. They tried to burn a cross in the yard of Elliott's next door neighbor, James S. Jubilee, simply because they wanted to "get back" at Jubilee by intimidating him and his family.

An African-American and native Virginian, Jubilee had recently moved back to the Commonwealth from California, along with his wife and two sons. Elliott J.A. 52, 93. The family had lived in their new neighborhood for about four months when, on May 2, 1998, Jubilee asked Elliott's mother about "some shooting" that was going on in the rear of the Elliott home. Mrs. Elliott explained that her son had a firing range where he shot firearms as a hobby. Id. at 86. The conversation was cordial. Id. at 54. Even so, Jubilee's inquiry so angered Elliott and O'Mara that - after drinking a lot of beer - they hatched a plan to burn a cross that night in Jubilee's yard. They were joined in this endeavor by a seventeen year-old friend, David Targee.

Late that night, the three of them rode onto Jubilee's land in a pick-up truck, planted their makeshift cross, set it on fire and fled. Jubilee awoke the next morning - a Sunday - to find the partially burned cross stuck in the ground less than 20 feet from his house. Id. at 55. Initially furious, Jubilee soon became worried and very nervous about the incident. He was concerned about what might come next, and saw the burnt cross as "just the first round." Id. at 55, 57-58. Jubilee called the police.

After an investigation, Elliott and O'Mara were identified as perpetrators. The pair were indicted for attempting to burn a cross with intent to intimidate, in violation of Va. Code § 18.2-423. Before trial, both defendants moved to dismiss the indictments based on their claim that the cross burning statute is unconstitutional. Heard in a consolidated hearing, both motions were denied by the trial court:
The defendants maintain that as a content-based regulation of speech…the statute violates the First and Fourteenth Amendments…and have moved to dismiss the case… [T]he court is going to overrule the defendants' motions….

Transcript of Hearing, Jan. 20, 1999. See Orders of the Circuit Court for the City of Virginia Beach, denying Elliott's and O'Mara's motions to dismiss "for the reasons stated on the record." App. 74.
Tried by a jury on February 22-23, 1999, Elliott was convicted of attempted cross burning. App. 71-72. On May 6, 1999, the circuit court sentenced Elliott to 90 days in jail and fined him $2,500, in accordance with the jury's verdict. App. 69-70. Elliott then appealed.

Meanwhile, after losing his motion to dismiss, O'Mara entered a conditional guilty plea under Va. Code § 19.2-254, thereby preserving his constitutional objection. On April 26, 1999, the circuit court imposed on O'Mara a sentence of 90 days in jail and a fine of $2,500. Half of the jail time and $1,000 of the fine were suspended. App. 77-78. O'Mara then appealed.

With their cases consolidated on appeal, "both O'Mara and Elliott… maintain[ed]… 'that the code section [§ 18.2-423] is unconstitutional as violative of the free speech and expression protections' guaranteed by both the United States and Virginia Constitutions." App. 48. The Virginia Court of Appeals disagreed:

We, therefore, conclude that Code § 18.2-423 suffers from none of the several unconstitutional infirmities advanced by defendants. The statute targets only expressive conduct undertaken with the intent to intimidate another, conduct clearly proscribable both as fighting words and a threat of violence. The statute does not discriminate in its prohibition and is neither overbroad nor underinclusive.

Accordingly, we affirm the convictions.

App. 57 (emphasis added). Elliott and O'Mara then appealed to the Virginia Supreme Court, which consolidated their cases with the appeal of the third cross burning defendant, whose case will now be discussed.

Carroll County - August 22, 1998: Unlike the other two defendants, Barry Elton Black is a Klansman. A leader in the Klan, Black headed a rally and cross burning in Carroll County, Virginia, on the evening of August 22, 1998. Black J.A. 128. This incident took place on private property with the permission of the owner - but in public view, a fact the decision below does not note. While a part of the property could not be seen from the roadside, this was not the spot chosen for erecting the cross. Instead, it was erected and burned where passers-by could clearly observe it. Standing 25 to 30 feet tall, the burning cross was visible along a three-quarter mile stretch of state roadway, where cars passed at the rate of about 40 to 50 per hour. Id. at 124, 125, 156, 157. The reaction of one black family driving along the road was noted by a deputy sheriff. They "stopped and looked across the field" toward the burning cross, then "took off at a higher than normal rate of speed." Id. at 156, 157.

The burning cross was also in view of 8 to 10 houses, including the home of Rebecca Sechrist. Id. at 125. She heard Klan speakers "talk real bad about the blacks and the Mexicans." Id. at 176. "One guy got up and said he would love to take a .30/.30 and just random[ly] shoot the blacks…." Id. at 176. So intimidating was the scene that Mrs. Sechrist - who is neither black nor Hispanic - "sat there and… cried," scared that the Klan might burn her home. Id. at 178, 181.

Admitting his responsibility for the cross burning, Black was arrested by the county sheriff and a deputy for violating Va. Code § 18.2-423. En route to jail with the deputy, Black volunteered his complaint about "blacks and Mexicans… walking up and down the sidewalk with white women holding hands and taking all the jobs," and he asked "when is the white man going to stand up to the blacks and Mexicans in this area?" Id. at 155.

Black defended against the charge by challenging the constitutionality of the statute, moving to dismiss his indictment on the theory that the statute violates the First Amendment of the United States Constitution and Article I, Section 12 of the Virginia Constitution. In a letter opinion, the trial court rejected Black's arguments, saying:

This Court accepts the Commonwealth's position that the Code Section 18.2-423 reaches only the crime of intimidation when an accused actually intended to intimidate others by his actions, such limitation saves the statute from being a proscription of speech in violation of the First Amendment and… the Virginia Constitution.

* * * * *

Accordingly, the defendant's Motion to Dismiss is denied.

App. 64 (emphasis added).

Black was tried before a jury, who convicted him of the offense charged. He was fined $2,500, and appealed. App. 58-60. The Virginia Court of Appeals also rejected Black's free speech claims. Having already decided the Virginia Beach case a few weeks earlier, the Court of Appeals issued a one sentence opinion, affirming the judgment of the trial court "for the reasons stated in O'Mara v. Commonwealth."

App. 46. Black again appealed.

The Virginia Supreme Court consolidated Black's appeal with the appeals filed by the Virginia Beach defendants, Elliott and O'Mara. Taking up the free speech issues raised by the three defendants, the Court said:

[W]e consider whether Code § 18.2-423, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, impermissibly infringes upon constitutionally protected speech… We conclude that, despite the laudable intentions of the General Assembly to combat bigotry and racism, the selectivity of its statutory proscription is facially unconstitutional because it prohibits otherwise permitted speech solely on the basis of its content, and the statute is overbroad.

App. 1-2 (emphasis added). Having resolved the case based on the federal constitutional issues, the Court found it unnecessary to address the defendants' state constitutional claims. App. 18, n.9.

By a vote of 4 to 3, the Virginia high court struck down the Commonwealth's cross burning law, believing it to be "analytically indistinguishable" from the St. Paul ordinance declared unconstitutional in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). App. 7. The court reached this result by overlooking two substantial differences between the two laws. First, the Virginia statute includes an "intent to intimidate" element wholly lacking from the St. Paul ordinance, which dealt only with "fighting words." 505 U.S. at 380. Second, the St. Paul ordinance contained a content-based element of "race, color, creed, religion or gender" wholly missing from the Virginia statute, which bans use of a burning cross to intimidate anyone for any reason.

The Virginia Supreme Court also found fault with that part of the statute that makes the burning of a cross prima facie evidence of an intent to intimidate. This provision is simply a permissible inference. The Commonwealth still bears the burden of proving its case - including the intent element - beyond a reasonable doubt. Yet, the court believed that such a statutory inference could lead to the arrest and prosecution - albeit acquittal - of persons who had no intent to intimidate and whose speech was constitutionally protected. The court believed that such a possibility made the law unconstitutional under the overbreadth doctrine.

Summary

"Few things can chill free expression and associated to the bone like night-riders outside the door and a fiery cross in the yard." State v. T.B.D., 656 So. 2nd 479, 482 (Fla. 1995).

This case involves two important freedoms: freedom of speech and freedom from fear. In an attempt to leave the first freedom intact, while securing the second, the Virginia General Assembly long ago enacted a ban on cross burning, but only when accompanied by an intent to intimidate someone. The Virginia law does not limit its protection to those of a particular race, religion or background. It protects everyone. Even so, the Virginia Supreme Court has read this Court's decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), to mean that such a law constitutes unconstitutional content discrimination. Such a result exacerbates a growing conflict among state courts of last resort about what R.A.V. means to state laws banning the burning of crosses. The Virginia decision is also in conflict with federal courts of appeal that have upheld anti intimidation statutes in the context of cross burning episodes. This Court should grant certiorari in order to resolve these conflicts and provide guidance to the States on how they may constitutionally accommodate their fundamental interest in preserving these two freedoms.

Additionally, the Virginia decision greatly expands the overbreadth doctrine as previously recognized by this Court in its First Amendment jurisprudence. The Virginia law is not vague nor do its terms prohibit any speech that is constitutionally protected. It only prohibits cross burning when there is an intent to intimidate. Consistent with constitutional limits on the use of statutory inferences, the Virginia law also allows a jury to infer an intent to intimidate from an act of cross burning alone, but leaves the burden of proof squarely on the prosecution. Looking not at the narrow scope of the law's prohibition - but focusing on the statutory inference - the court below concluded that the Virginia law is void for overbreadth. Its concern was that somewhere, somehow an innocent cross burner might be charged. A subsequent acquittal, the court reasoned, was not enough to avoid an unconstitutional chill. In so ruling, the court misunderstood what it means for overbreadth to be real, and disregarded the need for overbreadth to be substantial. It thus decided an important federal question in a way that conflicts with relevant decisions of this Court, and with relevant decisions by another state court of last resort. For these reasons, too, certiorari should be granted.

William Hurd (electronic mail, February 20, 2002)