Commonwealth of virginia, petitioner



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3 Intimidation is an element of many federal offenses-ranging from bank robbery to witness tampering to obtaining nuclear material-that ordinarily are not associated with the expression of ideas or viewpoints. See, e.g., 18 U.S.C. 831(a)(4) (obtaining nuclear material by intimidation); 18 U.S.C. 844(d) (transportation of explosives to be used to intimidate); 18 U.S.C. 1503 (intimidation of juror or judicial officer); 18 U.S.C. 1512(b) (intimidation with intent to influence official proceedings); 18 U.S.C. 1860 (intimidation in purchase or sale of public lands); 18 U.S.C. 2113(a) (intimidation to obtain money or property from financial institution); 18 U.S.C. 2231(a) (intimidation of person serving or executing search warrant).

4 When the defendant's intent to intimidate is an element of a criminal offense, as it is under the federal and Virginia statutes used to prosecute intimidating cross burning, the evidence, taken as a whole, must be sufficient to establish that element beyond a reasonable doubt. The First Amendment provides additional protection by requiring "an independent examination of the whole record to ensure that the judgment does not constitute a forbidden intrusion on the field of free expression." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (internal quotation marks omitted); cf. United States v. Hanna, 293 F.3d 1080, 1087-1088 (9th Cir. 2002) (conducting independent review to determine whether record established a "true threat").

5 An act of cross burning is not necessarily designed both to express a message, such as racial animus, and to intimidate. Some cross burnings, such as those that occur at a Ku Klux Klan rally from which the public is excluded, may be intended only to express a common ideology and to foster group solidarity. Other cross burnings, perhaps including the cross burning involving respondents Elliott and O'Mara, may be intended to intimidate for a purely personal reason, and not to express any idea or viewpoint. See Pet. 3 (noting the absence of any record evidence that respondents Elliott and O'Mara "are members of the Klan" or "hold any particular views on politics or race or any other subject"); Pet. App. 36 (Hassell, J., dissenting) (noting that Elliott and O'Mara "burned a cross because they were angry that their neighbor had complained about the presence of a firearm shooting range in the Elliotts' yard, not because of any racial animus"); see also, e.g., People v. Carr, 97 Cal. Rptr. 2d 143, 146 (Ct. App. 2000) (Jewish teenager asked his friends to burn a cross in his family's yard because "he was mad at his parents; he didn't like his curfew and other rules"); State v. Miller, 629 P.2d 748 (Kan. Ct. App. 1981) (defendant burned a cross in the yard of a lawyer who had previously represented him and who was prosecuting him on traffic charges); Williams v. Commonwealth, 72 S.W.2d 31 (Ky. 1934) (defendant murdered his brother-in-law, while preparing to burn a cross on his property, apparently in response to an earlier disagreement). Some cross burnings may be intended for other purposes. See, e.g., People v. Steven S., 31 Cal. Rptr. 2d 644, 646 653 (Ct. App. 1994) (cross burning was purportedly "a practical joke"); Wyn C. Wade, supra, at 227 (describing an instance in which young Roman Catholics, whose religion was opposed by the local Klan, "lit crosses all over town and let the Klan take the blame").

6 Defendants in a cross-burning case may also be prosecuted under 18 U.S.C. 245(b), which criminalizes interference "by force or threat of force" with other federally guaranteed rights, including voting, employment, and use of public facilities and public accommodations. See United States v. McDermott, 29 F.3d at 405 (prosecution under 18 U.S.C. 241 and 245(b)(2)(B) for conduct, including cross burning, intended to interfere with African-Americans' use of public park).

7 The Virginia Supreme Court stated that "a statute punishing intimidation or threats based only upon racial, religious, or some other selective content-focused category of otherwise protected speech violates the First Amendment." Pet. App. 9. That statement has no application to the federal statutes under which cross burning has been prosecuted (which do not focus on the content of speech), and it is overbroad even if intended simply as a description of R.A.V., which did not pronounce an absolute rule forbidding content discrimination. But to the extent that the statement suggests that a statute cannot proscribe intimidation or threats directed at a person because of his race, religion, or another such characteristic or because of the defendant's reasons for acting, the statement is inconsistent with this Court's understanding that "a prohibition of fighting words that are directed at certain persons or groups * * * would be facially valid if it met the requirements of the Equal Protection Clause." R.A.V., 505 U.S. at 392, and with this Court's conclusion in Mitchell, 508 U.S. at 486-487, that imposition of an enhanced penalty when the defendant selects his victim based on race or another protected characteristic does not violate the First Amendment.

8 The state cross-burning statutes invalidated in two cases cited by the Virginia Supreme Court (Pet. App. 13-14)-State v. Ramsey, 430 S.E.2d 511 (S.C. 1993), and State v. Sheldon, 629 A.2d 753 (Md. 1993)-did not contain an "intent to intimidate" element, and for that reason are unlike the statute at issue here.

9 See also Hernandez v. Commonwealth, 406 S.E.2d 398, 400-401 (Va. Ct. App. 1991) (sustaining under O'Brien standard Virginia statute prohibiting wearing of masks to conceal identity as applied to Ku Klux Klan member), habeas corpus denied sub nom. Hernandez v. Superintendent, 800 F. Supp. 1344 (E.D. Va. 1992), appeal dismissed, 8 F.3d 818 (4th Cir. 1993) (Table), cert. denied, 510 U.S. 1119 (1994); Frederick M. Lawrence, Punishing Hate: Bias Crimes Under American Law 80-109 (1999) (suggesting mode of analysis similar to O'Brien's for distinguishing "prosecutable bias crimes," including cross burning intended to threaten or intimidate, from "protected racist speech").

10 The final sentence of the statute-which provides that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons"-raises distinct issues concerning whether the statute is sufficiently narrowly tailored. There is no constitutional vice in permitting a jury to infer an intent to intimidate from speech or expressive conduct considered in light of all the circumstances of the case. See Mitchell, 508 U.S. at 489 ("The First Amendment * * * does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent."). If, however, the provision allows a jury to find, merely from the fact that the defendant burned a cross, that he acted with the intent to intimidate, the statute could reach cross burning that was intended only to express an idea or viewpoint. No analogous provision appears in any federal statute that is used to prosecute cross burning. See p. 2 note 1, supra.

11 The federal civil-rights statutes discussed above, if viewed as regulations of a "nonspeech" element of expressive conduct in their application to cross burning, would also satisfy the O'Brien standard. Those statutes serve the government's important interest in protecting citizens against interference in the exercise of federal rights. That interest is unrelated to the suppression of free expression. The statutes are narrowly tailored to reach only those cross burnings that are intended to intimidate, leaving ample alternative means for the expression of views antagonistic to the persons and rights that the statutes protect. See Hayward, 6 F.3d at 1250-1251 (holding that Section 3631 satisfies the O'Brien test in prosecution involving cross burning).

12 It would be especially inappropriate to presume, in light of the historical context, that Virginia enacted the statute for the impermissible purpose of suppressing expression, rather than for the permissible purpose of protecting its citizens from a particularly virulent form of intimidation. As noted, the statute was originally adopted in 1952, at a time when many of the views that a person may seek to advocate by burning a cross, such as white supremacy and racial separation, were reflected in state law. See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1, 7 (1967) (characterizing as "obviously an endorsement of the doctrine of White Supremacy" the justifications offered by Virginia Supreme Court in 1955 to uphold the state anti-miscegenation statute).

13 The federal civil-rights statutes discussed above are not selective regulations of proscribable expression. Even if they were so viewed, however, they would be permissible for reasons similar to those discussed in the text. Cross burning or other expressive activity intended to intimidate a person for exercising his federal right to occupy a dwelling may cause particularly intense fear and disruption. Cf. Frisby v. Schultz, 487 U.S. 474, 486-487 (1988) (noting the uniquely disturbing impact of picketing in the residential context). And, because the activity is directed at a victim because of his race (or ethnicity, religion, etc.), it is likely to instill fear not only in that victim, but also in others of the same group.

 

APPENDIX



1. Section 241 of Title 18, U.S.C., provides, in pertinent part:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;

* * * * *

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

2. Section 242 of Title 18, U.S.C., provides:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one years, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

3. Section 245(b) of Title 18, U.S.C., provides, in pertinent part:

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with-

(1) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from-

(A) voting or qualifying to vote, qualifying or campaigning as a candidate for elective office, or qualifying or acting as a poll watcher, or any legally authorized election official, in any primary, special, or general election;

(B) participating in or enjoying any benefit, service, privilege, program, facility, or activity provided or administered by the United States;

(C) applying for or enjoying employment, or any perquisite thereof, by any agency of the United States;

(D) serving, or attending upon any court in connection with possible service, as a grand or petit juror in any court of the United States;

(E) participating in or enjoying the benefits of any program or activity receiving Federal financial assistance; or

(2) any person because of his race, color, religion or national origin and because he is or has been-

(A) enrolling in or attending any public school or public college;

(B) participating in or enjoying any benefit service, privilege, program, facility or activity provided or administered by any State or subdivision thereof;

(C) applying for or enjoying employment, or any perquisite thereof, by any private employer or any agency of any State or subdivision thereof, or joining or using the services or advantages of any labor organization, hiring hall, or employment agency;

(D) serving, or attending upon any court of any State in connection with possible service, as a grand or petit juror;

(E) traveling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air;

(F) enjoying the goods, services, facilities, privileges, advantages, or accommodations of any inn, hotel, motel, or other establishment which provides lodging to transient guests, or of any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility which serves the public and which is principally engaged in selling food or beverages for consumption on the premises, or of any gasoline station, or of any motion picture house, theater, concert hall, sports arena, stadium, or any other place of exhibition or entertainment which serves the public, or of any other establishment which serves the public and (i) which is located within the premises of any of the aforesaid establishments or within the premises of which is physically located any of the aforesaid establishments, and (ii) which holds itself out as serving patrons of such establishments; or

(3) during or incident to a riot or civil disorder, any person engaged in a business in commerce or affecting commerce, including, but not limited to, any person engaged in a business which sells or offers for sale to interstate travelers a substantial portion of the articles, commodities, or services which it sells or where a substantial portion of the articles or commodities which it sells or offers for sale have moved in commerce; or

(4) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from-

(A) participating, without discrimination on account of race, color, religion or national origin, in any of the benefits or activities described in subparagraphs (1)(A) through (1)(E) or subparagraphs (2)(A) through (2)(F); or

(B) affording another person or class of persons opportunity or protection to so participate; or

(5) any citizen because he is or has been, or in order to intimidate such citizen or any other citizen from lawfully aiding or encouraging other persons to participate, without discrimination on account of race, color, religion or national origin, in any of the benefits or activities described in subparagraphs (1)(A) through (1)(E) or subparagraphs (2)(A) through (2)(F), or participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate-

shall be fined under this title, or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under this title, or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death. As used in this section, the term "participating lawfully in speech or peaceful assembly" shall not mean the aiding, abetting, or inciting of other persons to riot or to commit any act of physical violence upon any individual or against any real or personal property in furtherance of a riot. Nothing in subparagraph (2)(F) or (4)(A) of this subsection shall apply to the proprietor of any establishment which provides lodging to transient guests, or to any employee acting on behalf of such proprietor, with respect to the enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of such establishment if such establishment is located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor as his residence.

* * * * *

4. Section 1982 of Title 42, U.S.C., provides:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

5. Section 3631 of Title 42, U.S.C., provides:

Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with-

(a) any person because of his race, color, religion, sex, handicap (as such term is defined in section 3602 of this title), familial status (as such term is defined in section 3602 of this title), or national origin and because he is or has been selling, purchasing, renting, financing, occupying, or contracting or negotiating for the sale, purchase, rental, financing or occupation of any dwelling, or applying for or participating in any service, organization, or facility relating to the business of selling or renting dwellings; or

(b) any person because he is or has been, or in order to intimidate such person or any other person or any class of persons from-

(1) participating, without discrimination on account of race, color, religion, sex, handicap (as such term is defined in section 3602 of this title), familial status (as such term is defined in section 3602 of this title), or national origin, in any of the activities, services, organizations or facilities described in subsection (a) of this section; or

(2) affording another person or class of persons opportunity or protection so to participate; or

(c) any citizen because he is or has been, or in order to discourage such citizen or any other citizen from lawfully aiding or encouraging other persons to participate, without discrimination on account of race, color, religion, sex, handicap (as such term is defined in section 3602 of this title), familial status (as such term is defined in section 3602 of this title), or national origin, in any of the activities, services, organizations or facilities described in subsection

(a) of this section, or participating lawfully in speech or peaceful assembly opposing any denial of the opportunity to so participate-

shall be fined under title 18 or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under title 18 or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse; or an attempt to kill, shall be fined under title 18 or imprisoned for any term of years or for life, or both.

 

6. The Virginia cross-burning statute, Va. Code Ann. § 18.2-423 (Michie 1996), 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.
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