The plurality's reliance on Terminiello v. Chicago, 337 U. S. 1 (1949), is mistaken. And even where a defendant like Black presents a defense, the provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. Black argued that the First Amendment prevented the enforcement of the law. Thus, when it came to the rights of those seeking abortions, the Court deemed restrictions on "unwanted advice," which, notably, can be given only from a distance of at least eight feet from a prospective patient, justified by the countervailing interest in obtaining an abortion. Osborne v. Ohio, 495 U. S. 103, 112 (1990) (internal quotation marks omitted; emphasis added). Brief for United States as Amicus Curiae 3-4, and n.
0000001505 00000 n
See generally Griffin v. School Bd.
quires the jury to find the existence of each element, including intent to intimidate, beyond a reasonable doubt. .
Black was charged with burning a cross with the intent of intimidating a person or group of persons, in violation of § 18.2-423.
Id., at 271.
The plurality also asserts that "even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case." 0 theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. Consolidating all three cases, the Virginia Supreme Court held that the cross-burning statute is unconstitutional on its face; that it is analytically indistinguishable from the ordinance found unconstitutional in R. A. V. v. St. Paul, 505 U.S. 377; that it discriminates on the basis of content and viewpoint since it selectively chooses only cross burning because of its distinctive message; and that the prima facie evidence provision renders the statute overbroad because the enhanced probability of prosecution under the statute chills the expression of protected speech.
251 20 Now this is truly baffling.
Sir Walter Scott used cross burnings for dramatic effect in The Lady of the Lake, where the burning cross signified both a summons and a call to arms. shall be prima facie evidence of an intent to commit burglary, robbery or larceny." --it appears not to capture any protected conduct; that language is limited in its reach to con-. In such a case, if the factfinder is aware of the prima facie evidence provision, as the jury was in respondent Black's case, ante, at 349-350, the provision will have the practical effect of tilting the jury's thinking in favor of the prosecution.
Unlike JUSTICE SCALIA, we refuse to speculate on whether any interpretation of the prima facie evidence provision would satisfy the First Amendment. Rather, all we hold is that because of the interpretation of the prima facie evidence provision given by the jury instruction, the provision makes the statute facially invalid at this point. As one Klan publication emphasized, "We avow the distinction between [the] races, . . Because the instruction is the same as the Commonwealth's Model Jury Instruction, and because the Virginia Supreme Court had the opportunity to expressly disavow it, the instruction's construction of the prima facie provision is as binding on this Court as if its precise words had been written into the statute. e.g., Babbitt v. Miller, 192 Va. 372, 379-380, 64 S. E. 2d 718, 722 (1951) ("Prima facie evidence is evidence which on its first appearance is sufficient to raise a presumption of fact or establish the fact in question unless rebutted"). Id., at 777, 553 S. E. 2d, at 746. Even assuming that the statute implicates the First Amendment, in my view, the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problems.
Cross burning originated in the 14th century as a means for Scottish tribes to signal each other. United States v. Guest, 383 U. S. 745, 747-748, n. 1 (1966) (quoting indictment charging conspiracy under 18 U. S. C. § 241 (1964 ed.) As JUSTICE THOMAS has previously recognized, a burning cross is a "symbol of hate," and a "a symbol of white supremacy." The Court explained that when the subcategory is confined to the most obviously proscribable instances, "no significant danger of idea or viewpoint discrimination exists," ibid., and the expla-, nation was rounded out with some illustrative examples. L. Rev.
Ibid.
Know who wrote a Concurring in Part and Dissenting in Part, Why did Justice Alito say the First Amendment did not protect the speech, Threats are not protected even if therapeutic effect for the speaker, What case set forth the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, Who said, "A threat may cause serious emotional, Who said, The Government is at pains to characterize its position, Who said, In light of the foregoing, Elonis's conviction cannot, who said, This failure to decide throws everyone from appellate, who said, Rather than resolve the conflict, the Court casts aside.
Elliott's mother explained to Jubilee that her son shot firearms as a hobby, and that he used the backyard as a firing range.
Under these statutes, the intent to distribute is effectively satisfied by possession of some threshold amount of drugs.
The justices noted that unlike the ordinance found unconstitutional in R. A. V. v. St. Paul, 505 U. S. 377 (1992), the Virginia, statute does not just target cross burning "on the basis of race, color, creed, religion or gender." 321. Pp. 844, 845-846, n. 8 (1970); Monaghan, Overbreadth, 1981 S. Ct. Rev. The concurrence/dissent section is for members only and includes a summary of the judge’s concurrence in part and dissent in part.
The case, Davis v. Jubilee, an AfricanAmerican, was Elliott's next-door neighbor in Virginia Beach, Virginia. Id., at 231. § 18.2-423 (1996). The legislature finds the behavior so reprehensible that the intent is satisfied by the mere act committed by a perpetrator. Typically, a cross burning would start with a prayer by the "Klavern" minister, followed by the singing of Onward Christian Soldiers.
E.g., Terminiello v. Chicago, 337 U.S. 1, 4.
352-357. Because the prima facie clause here is an inference, not an irrebuttable presumption, there is all the more basis under our due process precedents to sustain this statute. Held: The judgment is affirmed in part, vacated in part, and remanded. At Klan gatherings across the country, cross burning became the climax of the rally or the initiation. Warrick v. State, 538 N. E. 2d 952, 954 (Ind.
1417. . This website requires JavaScript. added).
App. JUSTICE SCALIA, with whom JUSTICE THOMAS joins as to Parts I and II, concurring in part, concurring in the judgment in part, and dissenting in part.
The trial court also instructed the jury that "the burning of a cross by itself is sufficient evidence from which you may infer the required intent."
States thus do have the right to ban this type of behavior. Thus, it notes that "[t]he prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. It does not treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers. 0000000016 00000 n
. On Saturday, October 10th, we'll be doing some maintenance on Quizlet to keep things running smoothly.
§ 566.032 (2000); Ga. Code Ann. . Respondent O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality.
. the prosecutor responded that the instruction was "taken straight out of the [Virginia] Model Instructions." As a result, those pornographers trafficking in images of adults who look like minors may be not only deterred but also arrested and prosecuted for possessing what a jury might find to be legal materials. In both R.A.V. 262 Va., at 791, 553 S. E. 2d, at 753. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burnings long and pernicious history as a signal of impending violence.
The question presented, then, is whether, given this understanding of the term "prima facie evidence," the crossburning statute is constitutional.
Ibid.
The Virginia Supreme Court's opinion in Nance v. Commonwealth, 203 Va. 428, 432, 124 S. E. 2d 900, 903-904 (1962), states, in no uncertain terms, that the presentation of a prima facie case "'relieves neither the court nor the jury of the duty to determine all of the questions of fact from the weight of the whole evidence.'" § 163.365 (1989); Mo. Thus, "[b]urning a cross at a political rally would almost certainly be protected expression."
The ordinance did not cover "[t]hose who wish to use 'fighting words' in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality." The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.
Wade 144 (internal quotation marks omitted). Respondent OMara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. The reason why the Klan burns a cross at its rallies, or individuals place a burning cross on someone else's lawn, is that the burning cross represents the message that the speaker wishes to communicate. 01-1107. Id., at 388. The provision permits a jury to convict in every cross burning case in which defendants exercise their constitutional right not to put on a defense. According to the Klan constitution (called the kloran), the "fiery cross" was the "emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and principles we have espoused."
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE STEVENS, and JUSTICE BREYER, concluded in Parts IV and V that the Virginia statute's prima facie evidence provision, as interpreted through the jury instruction given in respondent Black's case and as applied therein, is unconstitutional on its face. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute-and potentially convict-somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect. Id., at 777, 553 S. E. 2d, at 746. To this day, however, 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." See Police Aid Requested by Teacher, Cross is Burned in Negro's Yard, Richmond News Leader, Jan. 21, 1949, p. 19, App. The Supreme Court of Virginia ruled that in light of R. A. V. v. City of St. Paul, supra, even if it is constitutional to ban cross burning in a content-neutral manner, the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. The Virginia Supreme Court answered that question in the negative. Ibid.
In every culture, certain things acquire meaning well beyond what outsiders can comprehend. In my view, severance of the prima facie evidence provision now could not eliminate the unconstitutionality of the whole statute at the time of the respondents' conduct. cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.
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