Virginia V. Black
In Virginia on April 7th 2003 a divided United States Supreme Court opened the possibility of constitutionally restricting certain types of hate speech. The court was to hear a case that spoke to one specific Virginia state statute that prohibited cross burning with the intent to intimidate, and also rendered that any such burning shall be prima facie evidence of an intent to intimidate a person or group. This court would see this statute being used between two separate cases. The first case was against Barry Black; in August of 1998 Black led a Ku Klux Klan rally at which the conclusion resulted in the burning of a cross on private property with the permission of the owner. Black was charged under the state statute, “Burning a cross with the intent to intimidate.”  The jury was instructed in accordance with the Model Jury Instruction that the burning of the cross by itself is sufficient evidence from which you may infer the required intent.  In May 1998 Richard Elliot and Jonathan O’Mara attempted to burn a cross on the lawn of Elliot’s neighbor and were charged in accordance under the cross-burning statute. After all of the respondents were convicted, they appealed to the Supreme Court of Virginia arguing that the cross-burning statute is unconstitutional. The Virginia Supreme court reversed all the convictions holding that the Virginia cross-burning statute is analytically indistinguishable from the ordinance found unconstitutional by the Supreme Court in the decision upheld in R.A.V. versus St. Paul.
The contested First Amendment dilemma challenges whether or not the Virginia state statute that limits “any person, with the intent of intimidating any person or group, to burn a cross on the property of another, a highway or other public place,” and specifies that “any such burning shall be prima facie evidence of an intent to intimidate a person or group” is unconstitutional on its face and whether or not...
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