Black was a member of the Ku Klux Klan, who burnt a cross on private property. Black states that the cross was burnt to inspire his KKK buddies and that he had no knowledge anyone who might feel intimidated was present let alone could see it. Black was arrested for violating a Virginia statute.
Separately, O’Mara and Elliott were arrested for violating the same statute after burning a cross in their neighbor’s yard after a dispute.
All three men were convicted and they all appealed. Eventually all three cases were combined and brought in front of the US Supreme Court.
Can a State, consistent with the First Amendment, ban cross burning carried out with the intent to intimidate? Holding: Yes
A) Burning a cross in the US in inextricably intertwined with the history of the Ku Klux Klan which imposed a reign of terror throughout the south. To this day, regardless of whether the message is a political one or is also meant to intimidate, the burning of a cross is a “Symbol of hate”. When a cross burning is used to intimidate, few if any messages are more powerful. B) The first amendment permits a State to ban “True threats” which encompass those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or groups of individuals. The speaker need not actually intent to carry out the threat. Intimidation is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. C) The court specifically stated that a particular type of content discrimination does not violate the first amendment when the basis for it consists entirely of the very reason its entire class of speech is proscribable.
Is the Virginia statute’s prima facie evidence provision, as interpreted through the jury instruction given in Black’s...