Commonwealth of virginia, petitioner



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3. The civil-rights statutes under which the United States prosecutes cross burning, like the federal civil-rights statutes that the Court identified in R.A.V. and Mitchell, are directed at conduct, distinct from any idea or viewpoint that it might express. 508 U.S. at 487. As the Court recognized in those cases, such statutes may reach words or expressive acts without violating the First Amendment. See R.A.V., 505 U.S. at 389-390.

As noted, 42 U.S.C. 3631, the principal statute used by the United States to prosecute cross burning, prohibits any use of "force or threat of force" to "willfully injure[], intimidate[] or interfere[] with" a person because of, inter alia, his "race" and his "occupying * * * any dwelling." 42 U.S.C. 3631(a). It makes no difference whether such conduct is intended to express an idea or viewpoint as well as to "injure[], intimidate[] or interfere[] with" a victim. Section 3631 applies equally to an assault committed in secrecy, see, e.g., United States v. Wood, 780 F.2d 955 (11th Cir.) (forcible entry into home, beatings, death threats), cert. denied, 476 U.S. 1184 (1986); United States v. Johns, 615 F.2d 672 (5th Cir.) (firing guns into home), cert. denied, 449 U.S. 829 (1980), and to a cross burning committed in public view, provided that the defendant acted with the requisite intent. Thus, Section 3631 "is aimed at curtailing wrongful conduct in the form of threats or intimidation, and not toward curtailing any particular form of speech." United States v. Hayward, 6 F.3d 1241, 1250 (7th Cir. 1993), cert. denied, 511 U.S. 1004 (1994); accord United States v. Stewart, 65 F.3d 918, 928-929 (11th Cir. 1995) (describing Section 3631 as "target[ing] unprotected conduct-willful interference with housing rights" -that "the government may regulate without violating the First Amendment"), cert. denied, 516 U.S. 1134 (1996).

Similarly, 18 U.S.C. 241 and 42 U.S.C. 1982, which are used together to prosecute cross-burning conspiracies, are regulations directed at conduct. Section 241 "punish[es] any * * * conspiracy to threaten or to intimidate, violating the statute[] regardless of the viewpoint guiding the action." J.H.H., 22 F.3d at 825. Section 1982, which secures certain rights with respect to real and personal property against discrimination based on race, is specifically mentioned in Mitchell, 508 U.S. at 487, and R.A.V., 505 U.S. at 389-390, as a constitutional regulation of conduct, without regard to its expressive content.

Both 42 U.S.C. 3631 and 18 U.S.C. 241 are analytically indistinguishable from statutes that this Court has described as regulations directed at conduct. One statute so described by the Court is 18 U.S.C. 242, which was an example given in R.A.V., 505 U.S. at 389-390, and Mitchell, 508 U.S. at 487. Section 242, which applies to those acting under color of law, prohibits "willfully subject[ing] any person * * * to the deprivation of any [federal] rights, privileges or immunities." Similarly, Section 3631 and Section 241 are directed at conduct intended to interfere with the exercise of federal rights, not at the message that the conduct may be intended to convey.

Section 3631 and Section 241 also resemble 18 U.S.C. 112(b), a statute that the Court viewed as constitutional in Boos v. Barry, 485 U.S. 312, 326 (1988). Section 112(b) prohibits "willfully * * * intimidat[ing], coerc[ing], threaten[ing], or harass[ing] a foreign official or an official guest or obstruct[ing] a foreign official in the performance of his duties," or attempting to do so. 18 U.S.C. 112(b)(1) and (2). In Boos, the Court noted the "constitutionally significant" differences between 18 U.S.C. 112(b) and the statute at issue in that case, which prohibited displays designed, inter alia, to bring a foreign government, its officials, its policies, or its views into "public odium" or "public disrepute." 485 U.S. at 316, 326. The Court explained that Section 112(b), in contrast to the statute at issue, "is not narrowly directed at the content of speech but at any activity, including speech, that has the prohibited effects" of "intimidat[ing], coerc[ing], threaten[ing], or harass[ing]" a foreign official or guest. Id. at 326. Boos thus reinforces the conclusion that a statute that prohibits acts of intimidation, threats, harassment, and other such interference, without regard to their expressive content, is a constitutionally permissible regulation of conduct, "including speech." Ibid.

4. It is thus clear that the federal statutes that have been used to prosecute cross burning are aimed at conduct, not expressive content. The scope of conduct prohibited by Section 3631, for example, includes both "force" and "threats," and "threats of violence are outside the First Amendment," R.A.V., 505 U.S. at 388, insofar as they are "true threats." See Watts v. United States, 394 U.S. 705 (1969) (per curiam). R.A.V. indicated that, even though threats are unprotected, a statute that singled out certain threats based on the ideas or viewpoints that they sought to express would raise a distinct First Amendment issue. See 505 U.S. at 388 ("the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities"). But the federal statutes that have been used to prosecute cross burning do not make such content distinctions. Section 3631 punishes all "threats of force" that are used to injure, intimidate, or interfere with a person "because of" his race, color, religion, etc., and "because of" his exercise of federal housing rights. 42 U.S.C. 3631(a). The statute therefore singles out threats made because of the defendant's motives or reasons for acting, not because of the content of the threat. A threat using any language or any means of expression is covered, if made for the prohibited reasons. That approach raises no First Amendment issue. See Mitchell, 508 U.S. at 487 (upholding enhanced penalty for bias-motivated crime because "motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge").7

In sum, 42 U.S.C. 3631 and 18 U.S.C. 241 are properly understood as regulations directed at conduct, which may constitutionally encompass acts, such as cross burning, that may also express an idea or viewpoint. Accordingly, whether or not a State may prosecute intimidation by cross burning under a statute that exclusively applies to that activity, a State may do so under a statute of more general application that is modeled on the federal statutes discussed above.

 

II. A STATE MAY PERMISSIBLY REGULATE CROSS BURNING, WHEN INTENDED TO THREATEN OR INTIMIDATE, UNDER A STATUTE THAT APPLIES EXCLUSIVELY TO THAT CONDUCT



 

The Virginia statute does not prohibit all cross burning, or a content-based subcategory of cross burning. Rather, the statute prohibits cross burning "with the intent of intimidating any person or group of persons," when conducted "on the property of another, a highway or other public place." Va. Code Ann. § 18.2-423 (Michie 1996). The statute reaches all such incidents of cross burning regardless of the ideas, if any, that they may be intended to communicate. Those features of the statute are constitutionally significant for two reasons. First, the statute may be viewed as a regulation directed at conduct-intimidation-as distinguished from a regulation directed at expression. Alternatively, even if the statute is viewed as a selective regulation of proscribable expression, the statute does not violate the First Amendment, because it presents no danger of impermissible content or viewpoint discrimination. The same content-neutral reasons that would justify a prohibition of all intimidating expression also justify a selective prohibition of intimidation by cross burning.

 

A. The Virginia Statute Is A Regulation Of Conduct- The Intentional Use Of Cross Burning As A Tool Of Intimidation-Not A Regulation Of Expression



 

1. The Virginia statute, like the federal statutes discussed above, is appropriately viewed as a regulation of conduct-specifically, the intentional use of a burning cross as "an instrument of intimidation." Capitol Square, 515 U.S. at 770-771 (Thomas, J. concurring). It applies only to cross burning that is undertaken "with the intent of intimidating any person or group of persons," and to all such cross burning whether or not it is also intended to express an idea or philosophy. Such a statute cannot reasonably be viewed as being directed at the suppression of free expression.

As explained above (at 11-12), intimidation is not protected speech. It is conduct intended to "put a person or group of persons in fear of bodily harm." Pet. App. 66-67 (jury instruction in respondent Black's case); see Sutton v. Commonwealth, 324 S.E.2d at 670 ("[i]ntimidation * * * means putting a victim in fear of bodily harm"). A law against intimidation is thus similar to a law against treason, or fraud, or blackmail-a law that may be violated by words, but that is "directed not against speech but against conduct." R.A.V., 505 U.S. at 389 (discussing law against treason).8

The Virginia statute thus differs in critical respects from the ordinance in R.A.V. The Commonwealth has not sought to regulate speech that arouses "anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender," as did the provision at issue in R.A.V. 505 U.S. at 393. The distinctive harms in that case, the Court concluded, were the product of the expression of "a distinctive idea, conveyed by a distinctive message." Ibid. Here, Virginia has selected for prohibition, not a "distinctive idea" or "a distinctive message," but a distinctive form of conduct -intentional intimidation through cross burning- that has historically served as a precursor to violent action. See pp. 2-5 & note 2, supra. It does not matter whether the defendant selected that mode of intimidation to express racial hatred or simply to take advantage of the intense fear that it induces. In either case, cross burning has a unique potential to cause fear, disruption, and the potential for violence, and it is for that reason that Virginia has singled out cross burning with the intent to intimidate for special proscription. In regulating that specific act, Virginia protects against a form of conduct that has a particularized capacity to instill in its victims a well-grounded fear that physical violence will follow.

2. The Virginia statute, in contrast to the federal statutes discussed above, applies to a single mode of intimidating conduct, intimidation by cross burning. Cross burning is not in all instances an expressive activity. See pp. 13-14 note 5, supra. But by focusing on a particular type of activity that often is expressive of an idea or viewpoint, the Virginia statute, although directed at conduct, may require scrutiny under the First Amendment in a way that the federal statutes do not.

To that extent, the Virginia statute is appropriately analyzed under the intermediate scrutiny standard of United States v. O'Brien, 391 U.S. 367, 376-377 (1968), as a regulation of a "nonspeech" element (i.e., intentional intimidation) of conduct that may contain both "speech" and "nonspeech" elements. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 703 (1986) (noting that the Court has applied the O'Brien analysis to "cases involving government regulation of conduct that has an expressive element"); see also, e.g., City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) (plurality opinion) (applying O'Brien standard to regulation of public nudity); accord id. at 310 (Souter, J., concurring in part and dissenting in part); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298-299 (1984) (applying O'Brien standard to regulation prohibiting sleeping in public parks).9

The Virginia statute withstands First Amendment scrutiny under the O'Brien standard. See O'Brien, 391 U.S. at 377 (statute must promote an "important or substantial government interest," which is "unrelated to the suppression of free expression," and restrict such expression only to the extent "essential to the furtherance of that interest"). The statute serves the government's important, indeed compelling, interest in preventing activity that creates fear, disruption, and the potential for violence. See pp. 28-29, infra. Such an interest is unrelated to the suppression of any idea or viewpoint that a particular act of cross burning may be intended to express. Cf. People v. Steven S., 31 Cal. Rptr. 2d 644, 651 (Ct. App. 1994) ("the expressive element of an unauthorized cross burning on another person's property is incidental at best"). The statute does not suppress any more expression than is necessary to prevent intimidation, as reflected in its application only to cross burning for the purpose of intimidation, and not to cross burning for other purposes or cross burning for any purpose on one's own property.10

3. The First Amendment requires content neutrality only when the government regulates expression, as such, or when the government regulates expressive conduct because of its expressive element. Otherwise, a statute may focus, subject only to equal protection constraints, on "the phase of the problem which seems most acute to the legislative mind," Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955), rather than on all phases of the problem at the same time and to the same extent. Cf. Friedman v. Rogers, 440 U.S. 1, 15 n.14 (1979) (observing that, in regulating commercial speech to prevent misleading or deceptive practices, "[t]here is no requirement that the State legislate more broadly than required by the problem it seeks to remedy") (citing Williamson); O'Brien, 392 U.S. at 375 (sustaining statute that prohibited the destruction of draft cards but not other government-issued documents, the destruction of which could produce comparable harms).

Thus, when regulating the conduct of intentional intimidation, in furtherance of an interest unrelated to the suppression of expression, a State may focus on intimidation in one context. Virginia may, for example, prohibit intimidation by burning a cross without, as the Virginia Supreme Court suggested (Pet. App. 14), also prohibiting intimidation by burning a circle or a square. That is because Virginia's valid concerns with the unique evils of intimidating cross burning respond to a genuine threat to social order, a threat not found in other contexts. The Commonwealth's focus on the actual problem that it has encountered raises no concern that it is actually seeking to suppress disfavored ideas or views.

4. The Virginia statute is unlike the Texas flag-burning statute that was invalidated in Texas v. Johnson. There, the Court held that the O'Brien standard was inapplicable because the State offered no valid interest unrelated to the suppression of free expression to justify the statute. 491 U.S. at 407. The Court concluded that Texas's asserted interest in preventing breaches of the peace was unsupported by any evidence that flag burning would provoke a violent response. Id. at 407-410. And the Court concluded that Texas's interest in preserving the symbolic value of the flag was related to the suppression of free expression. Id. at 410. Here, in contrast, the Commonwealth's interest in preventing coercive conduct that instills fear in its citizens is inherent in the statute's limitation to cross burning with the intent to intimidate. The historical accuracy of Virginia's premise that such cross burning warrants proscription is beyond question. See pp. 2-5 & note 2, supra.

The Virginia statute is also unlike the federal Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777, which the Court declined to review under the O'Brien standard in United States v. Eichman, 496 U.S. 310, 315 (1990). In that case, the Court held that the government's asserted interest, to protect the physical integrity of the American flag, was "related to the suppression of free expression," because it "rests upon a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals." Id. at 315-316. Again, the Virginia statute is justified by the Commonwealth's interest in protecting its citizens from intimidation, which is distinct from any interest in preventing the use of cross burning as a symbol of an idea or philosophy.11

 

B. The Virginia Statute Poses No Danger Of Idea Or Viewpoint Discrimination Because The Same Reasons That Justify A Ban Of All Intimidating Expression Justify A Ban Of Intimidation By Cross Burning



 

The Virginia statute, even if viewed as a selective regulation of proscribable expression, does not violate the First Amendment under R.A.V. The government may constitutionally proscribe all threatening and intimidating expression. See Watts v. United States, 394 U.S. at 707. It also may distinguish within that category, provided that it does so for a reason that is sufficiently content-neutral. See R.A.V., 505 U.S. at 388. A prohibition of intimidation by cross burning is justified for the same content-neutral reasons that would justify a prohibition of all threatening or intimidating expression.

In R.A.V., the Court explained that the First Amendment's prohibition against content discrimination in the regulation of "fighting words" and other categories of proscribable speech is "not absolute." 505 U.S. at 387. The Court identified various instances in which such discrimination is permissible because it poses no threat of driving certain ideas or viewpoints from the marketplace. One such instance is "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech of speech at issue is proscribable." Id. at 388. That is 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." Ibid. Thus, Congress could prohibit only threats of violence made against the President, "since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President." Ibid.

The same analysis applies to a statute that prohibits only intentional intimidation by cross burning. A statute that prohibited all intimidating speech (i.e., speech intended to coerce its victims by putting them in fear of bodily harm) would be permissible under the First Amendment. Intimidating speech, like the threatening speech discussed in R.A.V., is "outside the First Amendment," and may be prohibited for the same content-neutral reasons: to "protect[] individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." R.A.V., 505 U.S. at 388.

Those reasons have "special force," 505 U.S. at 388, when applied to intentional intimidation by cross burning. A State could properly conclude that cross burning, when engaged in to intimidate, has a unique potential for instilling fear in its victims, disrupting the life of the community, and precipitating violent or other unlawful conduct. As history demonstrates, cross burning, as contrasted with other intimidating expression, has a particularly strong association with acts of vigilantism and violence. See pp. 2-5 & note 2, supra; see also, e.g., Steven S., 31 Cal. Rptr. 2d at 653 ("Given the role of the Ku Klux Klan in our nation's history, * * * a malicious cross burning * * * can be uniquely threatening, fearsome, and provocative."). Because cross burning typically targets its victims based on their race (or ethnicity or religion), its intimidating impact is particularly likely to be felt not only by its immediate victims, but also by others in the community who are of the same race (or ethnicity or religion). See Symposium: Civil Rights Law in Transition, 27 Fordham Urb. L.J. 1109, 1173 (Apr. 2000) (Professor Frederick M. Lawrence) ("[S]tudies have shown that in the aftermath of cross burnings on the lawn of a black family, other black families in the area * * * respond as if they themselves were attacked, of actual personal victimization. This is evident with other ethnic and other groups as well. Consequently, bias crimes affect the target community in such a way that there is no equivalent with parallel crimes."); S. Rep. No. 721, 90th Cong., 1st Sess. 4 (1967) (observing that violence or the threat of violence "has been used against [some] Negroes * * * in order generally to intimidate and deter all Negroes in the exercise of their rights"). The impact of intimidating cross burning on racial or other groups within the community heightens the injury that such conduct causes and justifies its special prohibition. Cf. Mitchell, 508 U.S. at 488 (special harms of bias-motivated crimes "provide[] an adequate explanation for [a State's] penalty-enhancement provision over and above mere disagreement with the offender's beliefs or biases").12

Intimidation by cross burning, in light of its history, is therefore singularly proscribable for the same reasons that intimidating expression is generally proscribable. A statute such as Virginia's presents "no significant danger of idea or viewpoint discrimination." R.A.V., 505 U.S. at 388.13

 

CONCLUSION



The judgment of the Virginia Supreme Court should be reversed to the extent that it holds that a State cannot exclusively proscribe cross burning with the intent to intimidate.

Respectfully submitted.

 

THEODORE B. OLSON


Solicitor General
RALPH F. BOYD, JR.
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
BARBARA MCDOWELL
Assistant to the Solicitor
General
JESSICA DUNSAY SILVER
LINDA F. THOME
Attorneys

AUGUST 2002

1 The federal statutes that have been applied to prosecute cross burning do not contain any provisions comparable to Virginia's provision that the burning of a cross is "prima facie evidence of an intent to intimidate," Va. Code Ann. § 18.2-423 (Michie 1996), and the United States expresses no view on the constitutionality of that provision. See p. 24 note 10, infra.

2 See, e.g., United States v. Guest, 383 U.S. 745, 747-748 n.1 (1966) (quoting indictment charging conspiracy under 18 U.S.C. 241 to interfere with federally secured rights by, inter alia, "burning crosses at night in public view," "shooting Negroes," "beating Negroes," "killing Negroes," "damaging and destroying property of Negroes," and "pursuing Negroes in automobiles and threatening them with guns"); United States v. Pospisil, 186 F.3d 1023, 1027 (8th Cir. 1999) (defendants burned a cross in victims' yard, slashed their tires, and fired guns), cert. denied, 529 U.S. 1089 (2000); United States v. Stewart, 65 F.3d 918, 922 (11th Cir. 1995) (cross burning precipitated an exchange of gunfire between victim and perpetrators), cert. denied, 516 U.S. 1134 (1996); United States v. McDermott, 29 F.3d 404, 405 (8th Cir. 1994) (defendants sought to discourage African-Americans from using public park by burning a cross in the park, as well as by "waving baseball bats, axe handles, and knives; throwing rocks and bottles; veering cars towards black persons; and physically chasing black persons out of the park"); Cox v. State, 585 So. 2d 182, 202 (Ala. Crim. App. 1991) (defendant participated in evening of cross burning and murder), cert. denied, 503 U.S. 987 (1992); Robert A. Caro, The Years of Lyndon Johnson: Master of the Senate 847 (2002) (referring to a wave of "southern bombings, beatings, sniper fire, and cross-burnings" in late 1956 in response to efforts to desegregate schools, buses, and parks); Michael Newton & Judy Newton, supra, at 21 (observing that "Jewish merchants were subjected to boycotts, threats, cross burnings, and sometimes acts of violence" by the Klan and its sympathizers); id. at 361-362 (describing cross burning and beatings directed at an African-American family that refused demands to sell its home); id. at 382 (describing incident of cross burning and brick throwing at home of Jewish officeholder); id. at 583 (describing campaign of cross burning and property damage directed at Vietnamese immigrant fishermen); Wyn C. Wade, supra, at 262-263 (describing incidents of cross burning, beatings, kidnapping, and other "terrorism" directed against union organizers in the South); id. at 376 (cross burnings associated with shooting into cars); id. at 377 (cross burnings associated with assaults on African-Americans); 1 Richard Kluger, Simple Justice 378 (1975) (describing cross burning at, and subsequent shooting into, home of federal judge who issued desegregation decisions); Leonard S. Rubinowitz & Imani Perry, supra, 92 J. Crim. L. & Criminology at 354-355, 388, 408-410, 419, 420, 421, 423 (describing incidents of cross burning accompanied by violence); Pet. App. 92-93 (describing 1951 Virginia cross burning accompanied by gunfire).

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