In the Supreme Court of the United States
COMMONWEALTH OF VIRGINIA, PETITIONER
BARRY ELTON BLACK, RICHARD J. ELLIOTT
AND JONATHAN O'MARA
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF VIRGINIA
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
THEODORE B. OLSON
Counsel of Record
RALPH F. BOYD, JR.
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
Assistant to the Solicitor
JESSICA DUNSAY SILVER
LINDA F. THOME
Department of Justice
Washington, D.C. 20530-0001
Whether a state statute that prohibits the burning of a cross with the intent to intimidate violates the First Amendment.
In the Supreme Court of the United States
COMMONWEALTH OF VIRGINIA, PETITIONER
BARRY ELTON BLACK, RICHARD J. ELLIOTT
AND JONATHAN O'MARA
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF VIRGINIA
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE
INTEREST OF THE UNITED STATES
The United States, like the Commonwealth of Virginia, prosecutes persons who burn crosses, or conspire to do so, in order to intimidate others. See, e.g., United States v. Magleby, 241 F.3d 1306 (10th Cir. 2001); United States v. Stewart, 65 F.3d 918 (11th Cir. 1995), cert. denied, 516 U.S. 1134 (1996); United States v. Hayward, 6 F.3d 1241 (7th Cir. 1993), cert. denied, 511 U.S. 1004 (1994). The United States does so under statutes that, in contrast to the Virginia statute here, do not focus exclusively on intimidation by cross burning, but instead generally prohibit the use of force or threats of force to intimidate a person because of his race (or other protected status) and his exercise of federal housing rights, see 42 U.S.C. 3631, or generally prohibit conspiracy to intimidate a person in the exercise of federal rights, see 18 U.S.C. 241. The federal statutes and the Virginia statute share the common purpose of preventing conduct that instills fear in its victims, disrupts the life of the community, and increases the potential for violence. Such statutes are constitutional under the First Amendment even though, in some instances, they reach conduct that may be intended not only to intimidate, but also to express an idea or viewpoint.
The United States has a significant interest not only in prosecuting acts of cross burning that come within the scope of its own statutes, but also in assuring that the States retain wide discretion to address the continuing national problem of cross burning as an instrument of intimidation. Some States, following the United States' approach, may choose to adopt statutes that encompass a wide array of coercive conduct intended to prevent or deter their citizens from engaging in protected activities. Other States, following Virginia's approach, may choose to adopt statutes focused on the particular conduct that has been employed to intimidate their citizens. Both approaches should be permissible under the First Amendment so long as the gravamen of the offense is intimidation, not expression.1
For much of the past century, a burning cross has served as both "a symbol of white supremacy and a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and * * * other groups." Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 770 (1995) (Thomas, J., concurring). This case concerns whether a State is constrained, because of the symbolic component of cross burning, from specifically regulating the intimidation component.
1. Cross burning, which originated in the Scottish Highlands as a means of signaling from one clan to another, was unknown in the United States until the early 20th Century. The first reported cross burning in this country occurred in October 1915 at Stone Mountain, Georgia, when a group calling itself the Knights of Mary Phagan burned a giant cross that could be seen miles away in Atlanta. The Stone Mountain cross burning has been attributed to the same vigilantes who two months earlier abducted Leo Frank, a Jewish merchant whose sentence for Phagan's murder had been commuted, from a Georgia prison farm and hanged him. See Wyn C. Wade, The Fiery Cross: The Ku Klux Klan in America 144, 146 (1987); Michael Newton & Judy Newton, The Ku Klux Klan: An Encyclopedia 145-145, 325-326 (1991).
Cross burning soon became a part of the prescribed ritual at Ku Klux Klan gatherings. But cross burning also came to have a more sinister use as one of the means, along with arson, assault, bombing, and even murder, used by the Klan and others to "terrify people out of engaging in particular kinds of behavior." Nancy MacLean, Behind the Mask of Chivalry: The Making of the Second Ku Klux Klan 150 (1994). Indeed, on occasions when cross burning alone "failed to intimidate," Klan members "resorted to beatings and murder," among other tactics. Juan Williams, Eyes on the Prize: America's Civil Rights Years 1954-1965, at 39 (1987); see Leonard S. Rubinowitz & Imani Perry, Crimes Without Punishment: White Neighbors' Resistance to Black Entry, 92 J. Crim. L. & Criminology 335, 342 (Fall 2001-Winter 2002) (noting that an "escalating campaign to eject a [minority] family" from a white neighborhood could begin with "cross burnings, window breaking, or threatening telephone calls," and culminate with bombings). The association between acts of intimidating cross burning and acts of violence is well documented in recent American history.2
2. In 1952, the Virginia General Assembly adopted the predecessor to the statute at issue here, "in direct response to Ku Klux Klan activities in Virginia, including incidents of cross burning." Pet. App. 6 (footnote omitted); see id. at 86-95 (newspaper articles describing such incidents). The statute, in its original form, made it unlawful "to place or cause to be placed on the property of another * * * a burning or a flaming cross * * * without first obtaining written permission of the owner or occupier of the premises." Id. at 6 n.3 (quoting 1952 Va. Acts ch. 483 § 2, at 477). In subsequent years, the General Assembly made the statute broader in some respects (e.g., to include cross burning on "a highway or other public place"), and narrower in other respects (e.g., to apply only to cross burning "with the intent of intimidating any person or group of persons"). In its present form, the statute provides:
It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.
Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.
Va. Code Ann. § 18.2-423 (Michie 1996).
3. This case arises out of the prosecutions of three individuals, respondents here, for violations of the Virginia statute. Two of those individuals, Richard Elliott and Jonathan O'Mara, were prosecuted for an attempted cross burning in Virginia Beach, Virginia, in May 1998. The third individual, Barry Elton Black, was prosecuted for a cross burning in Carroll County, Virginia, in August 1998.
a. Respondents Elliott and O'Mara, together with a third individual, attempted to burn a cross on the property of James Jubilee, an African-American who lived next door to Elliott and who had recently complained about the shooting of firearms in Elliott's backyard. Elliott and O'Mara were charged with attempted cross burning and conspiracy to commit cross burning. O'Mara pleaded guilty to both counts, reserving the right to challenge the constitutionality of the cross-burning statute. Pet. App. 2-3, 48-49.
At Elliott's trial, the court instructed the jury on the elements of attempted cross burning: "[t]hat the defendant intended to commit cross burning"; "[t]hat the defendant did a direct act toward the commission of the cross burning"; and "[t]hat the defendant had the intent of intimidating any person or group of persons." Pet. App. 75. The jury found Elliott guilty of attempted cross burning, but not of conspiracy. Id. at 3.
The court of appeals sustained the cross-burning statute against respondents' First Amendment challenge. The court concluded that the statute "targets only expressive conduct undertaken with the intent to intimidate another, conduct clearly proscribable both as fighting words and as a threat of violence." Pet. App. 57; see id. at 3.
b. Respondent Black was charged with cross burning at a Ku Klux Klan rally. Pet. App. 4. At his trial, the court instructed the jury that the Commonwealth was required to prove beyond a reasonable doubt that Black "burned or caused to be burned a cross in a public place" and "did so with the intent to intimidate any person or group of persons." Id. at 66. The court further instructed the jury that an "intent to intimidate" means "a motivation to intentionally put a person or group of persons in fear of bodily harm." Id. at 66-67. The court added that "[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." Id. at 67. The jury found Black guilty. Id. at 4.
The court of appeals affirmed Black's conviction, rejecting his constitutional challenge to the statute "[f]or the reasons stated in O'Mara." Pet. App. 46; see id. at 4.
4. The Virginia Supreme Court, after consolidating respondents' appeals, reversed their convictions. The court held that the cross-burning statute, on its face, violates the First Amendment for two reasons.
First, the court held that the cross-burning statute "prohibits otherwise permitted speech solely on the basis of its content." Pet. App. 2. The court did not dispute that the Commonwealth could proscribe all "expressive conduct that is intimidating in nature." Id. at 11. The court reasoned, however, that the Commonwealth could not single out some such conduct "based upon hostility-or favoritism-towards the underlying message expressed." Ibid. (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992)). The court concluded that the Commonwealth violated that principle by "selectively choos[ing] only cross burning because of its distinctive message." Ibid.
Second, the court held that the cross-burning statute is "overbroad," because of its provision that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate." Pet. App. 16-17. The court concluded that the provision could chill free expression, because "the act of burning a cross alone, with no evidence of intent to intimidate, will nonetheless suffice for arrest and prosecution," even if "the trier of fact ultimately finds the actor not guilty of the offense." Id. at 17.
SUMMARY OF ARGUMENT
The United States and the Commonwealth of Virginia have taken divergent approaches in their regulation of cross burning intended to threaten or intimidate. The United States prosecutes certain acts of cross burning under federal civil-rights statutes that generally proscribe the use of force or the threat of force to intimidate an individual because of, inter alia, his race and his exercise of federal housing rights, see 42 U.S.C. 3631, or that generally proscribe conspiracy to interfere with the exercise of federally protected rights, see 18 U.S.C. 241. Virginia, in contrast, prosecutes similar acts under a statute that specifically proscribes cross burning "with the intent of intimidating any person or group of persons." The federal statutes are constitutional under the First Amendment for reasons articulated in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), and Wisconsin v. Mitchell, 508 U.S. 476 (1993). The Virginia statute's exclusive focus on cross burning with the intent to intimidate is constitutional as well.
The statutes under which the United States prosecutes cross burning-principally, 42 U.S.C. 3631 and 18 U.S.C. 241 -are directed at conduct, without regard to its expressive content, if any. Those statutes are analytically indistinguishable from 18 U.S.C. 242, which prohibits "willfully subjecting any person * * * to the deprivation of any [federal] rights," and which R.A.V. and Mitchell identify as "a permissible content-neutral regulation of conduct." Mitchell, 508 U.S. at 487. As R.A.V. explains, "[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a [particular] idea or philosophy." 505 U.S. at 390. Thus, the United States may prosecute a cross burning intended to intimidate an individual because of his race and his exercise of his federal right to "occupy * * * any dwelling," 42 U.S.C. 3631(a), even if the cross burning is also intended to express an idea or philosophy.
The Virginia statute's focus on cross burning is constitutional for the same reason. The statute applies to only those cross burnings intended to intimidate, and to all such cross burnings regardless of any idea or viewpoint that they may be intended to express. As such, the statute is properly viewed as a regulation directed at conduct-the intentional use of a burning cross as a tool of intimidation-and not as a regulation directed at speech. To the extent that the First Amendment may require additional scrutiny because the statute focuses on an activity that may often be intended not only to intimidate but also to express an idea or viewpoint, the statute satisfies the applicable standard, which is that set forth in United States v. O'Brien, 391 U.S. 367, 376-377 (1968). The statute serves the Commonwealth's important interest in protecting its citizens from coercive activity intended to put them in fear of harm. That interest is unrelated to the suppression of free expression. The statute is narrowly tailored to reach only cross burning intended to intimidate, leaving ample opportunity for the expression of any view, including by burning a cross on one's own property or otherwise in circumstances not intended to intimidate. A regulation of conduct, or a "nonspeech" element of expressive conduct, is not subject to the content-neutrality principle of R.A.V.; thus, a State is not required by the First Amendment to regulate all such conduct in the same manner or to the same extent, but instead may, for example, regulate intimidation by burning a cross without similarly regulating other modes of intimidation.
Alternatively, even if the Virginia statute is viewed (as the Virginia Supreme Court viewed it) as a selective regulation of intimidating expression, the statute does not violate the First Amendment. As the Court explained in R.A.V., "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists," because "[s]uch 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." 505 U.S. at 388. The government could constitutionally proscribe all sufficiently threatening or intimidating expression in order to "protect individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." Ibid. Those reasons apply with "special force," ibid., to intimidating cross burning. Cross burning, because of its historical association with vigilantism and violence, has a unique potential for instilling fear in its victims, disrupting the life of the community, and precipitating other unlawful conduct. A regulation that focuses exclusively on intimidation by cross burning is justified for those content-neutral reasons.
A person has no First Amendment right to burn a cross in order to intimidate others, whether or not he also intends to express an idea or philosophy. Such conduct "produce[s] special harms distinct from [its] communicative impact," and thus is "entitled to no constitutional protection." Mitchell, 508 U.S. at 484. In R.A.V., which arose out of the burning of a cross in the yard of an African-American family, the Court acknowledged that the government "has sufficient means at its disposal to prevent such behavior," 505 U.S. at 396, apart from an ordinance that prohibits "fighting words that contain * * * messages of 'bias-motivated' hatred," id. at 392. See id. at 380 n.1 (suggesting that such conduct may be prosecuted under, inter alia, a statute prohibiting threats). Indeed, the United States subsequently prosecuted the same cross burning at issue in R.A.V. under its statutes prohibiting, inter alia, the use of threats of force to intimidate a person because of his race and his exercise of federal housing rights, 42 U.S.C. 3631, and conspiracy to intimidate a person in the exercise of federal rights, 18 U.S.C. 241. See United States v. J.H.H., 22 F.3d 821 (8th Cir. 1994) (rejecting First Amendment challenge to that prosecution).
Intimidation is not protected speech. It is conduct, physical or verbal, intended to coerce its victims by putting them in fear, typically of bodily harm. See, e.g., Black's Law Dictionary 827 (7th ed. 1999) (defining "intimidation" as "[u]nlawful coercion, extortion"); Anderson v. Boston Sch. Comm., 105 F.3d 762, 766 (1st Cir. 1997) (defining "intimidation" under Massachusetts Civil Rights Act as "putting in fear for the purpose of compelling or deterring conduct"); United States v. Woodrup, 86 F.3d 359, 363-364 (4th Cir.) (defining "intimidation" under federal bank robbery statute as conduct from which "an ordinary person * * * reasonably could infer a threat of bodily harm"), cert. denied, 519 U.S. 944 (1996); United States v. McDermott, 29 F.3d 404, 408 (8th Cir. 1994) (approving instruction defining "threaten" and "intimidate" under 18 U.S.C. 241 as "cover[ing] a variety of conduct intended to harm, frighten, punish or prevent the free action of other persons"); Sutton v. Commonwealth, 324 S.E.2d 665, 670 (Va. 1985) ("[i]ntimidation * * * means putting a victim in fear of bodily harm"); 11th Cir. Pattern Jury Instructions-Criminal Cases, Instr. No. 87 (1997) (defining use of "threat of force" to "intimidate" under 42 U.S.C. 3631 as "to say or do something which, under the same circumstances, would cause another person of ordinary sensibilities to be fearful of bodily harm if he or she did not comply") (available on Westlaw). Intimidation is not necessarily, or even usually, associated with the expression of ideas or viewpoints.3 Thus, when a statute proscribes certain conduct (whether or not expressive) only when undertaken with the intent to intimidate, the statute is "insulate[d] * * * from unconstitutional application to protected speech." United States v. Gilbert, 813 F.2d 1523, 1529 (9th Cir.) (addressing intent to intimidate element of 42 U.S.C. 3631), cert. denied, 484 U.S. 860 (1987).4
Such a statute, if confined to a single type of conduct that often is intended not only to intimidate but also to express an idea or viewpoint, may nonetheless implicate the First Amendment by virtue of its impact on proscribable speech. The Virginia statute, unlike the federal statutes, may come within that category because of its focus on intimidation by cross burning. Such a statute still may satisfy the First Amendment, either under the O'Brien framework for a regulation of expressive conduct or under one of R.A.V.'s exceptions for a selective regulation of proscribable expression that poses no threat of suppressing ideas or viewpoints.
I. THE UNITED STATES PERMISSIBLY REGULATES CROSS BURNING, WHEN INTENDED TO THREATEN OR INTIMIDATE, UNDER STATUTES THAT ARE DIRECTED AT CONDUCT WITHOUT REGARD TO ITS EXPRESSIVE CONTENT
The United States prosecutes cross burning under Acts of Congress that prohibit the use of force or threats of force to intimidate an individual because of his race (or other status) and his exercise of federal housing rights, see 42 U.S.C. 3631, and conspiracy to interfere with the exercise of federal rights, see 18 U.S.C. 241. See Appendix, infra, 1a, 6a-7a. Those statutes, on their face and as applied to cross burning, are constitutional under the First Amendment, because they are directed at conduct, without regard to its expressive content, if any.5
1. Most often, the United States prosecutes cross burning under 42 U.S.C. 3631, a provision of the Fair Housing Act of 1968, 42 U.S.C. 3601 et seq. Section 3631 prohibits, among other things, using "force or threat of force" to "willfully injure, intimidate or interfere with" any person because of his "race" and his "occupying * * * any dwelling." 42 U.S.C. 3631(a).
If more than one person is involved in planning or carrying out a cross burning, the United States may also charge those persons under 18 U.S.C. 241, which prohibits conspiracy to "injure, oppress, threaten, or intimidate any person" in the exercise of a federally secured right. Typically, in such a conspiracy prosecution, the underlying right is the right under 42 U.S.C. 1982 to purchase, lease, or hold real property free from racial discrimination.6
Those statutes may, consistent with the First Amendment, be applied to prosecute acts of cross burning intended to intimidate a victim, notwithstanding that those acts may also be intended to express an idea or viewpoint. That is because the statutes are directed at conduct, not speech, although they may sometimes be violated by acts that have an expressive component.
2. In R.A.V., the Court distinguished laws directed at speech, such as the ordinance in that case, from laws directed at conduct, distinct from its expressive content. 505 U.S. at 389. The Court explained that, "[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a [particular] idea or philosophy." Id. at 390. Thus, "nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses." Id. at 385; cf. Texas v. Johnson, 491 U.S. 397, 406 (1989) ("The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements.") (citations omitted). A statute directed at conduct may even be violated by words alone without raising First Amendment concerns. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) ("[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.").
The Court noted that a law directed at conduct, without regard to its expressive content, may "incidentally" encompass "a particular content-based subcategory of a proscribable class of speech." R.A.V., 505 U.S. at 389. The Court made clear that such laws, in contrast to the one in R.A.V., do not involve unconstitutional content discrimination. The Court identified several federal civil-rights laws as examples of such permissible regulations. Thus, "Title VII's general prohibition against sexual discrimination in employment practices"-a regulation of conduct-may be violated by, among other things, "sexually derogatory 'fighting words.'" Id. at 389-390 (citing 42 U.S.C. 2000e-2; 29 C.F.R. 1604.11 (1991)). The Court also cited 18 U.S.C. 242, 42 U.S.C. 1981, and 42 U.S.C. 1982 as examples of constitutionally permissible regulations. 505 U.S. at 389-390.
In Mitchell, the Court upheld a statute that provided an enhanced criminal penalty if the defendant targeted his victim on the basis of race. In rejecting a First Amendment challenge to the statute, the Court reiterated the distinction between laws directed at speech and laws directed at conduct, explaining that "whereas the ordinance struck down in R.A.V. was explicitly directed at expression * * *, the statute in this case is aimed at conduct unprotected by the First Amendment." 508 U.S. at 487. It was of no constitutional significance that the statute reached conduct, such as the assault in that case, that could be viewed as an expression of the perpetrator's views toward a particular race, because "violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact * * * are entitled to no constiutional protection." Id. at 484. The Court also noted that R.A.V. had "cited Title VII (as well as 18 U.S.C. § 242 and 42 U.S.C. §§ 1981 and 1982) as an example of a permissible content-neutral regulation of conduct." Id. at 487.