Global Freedom of Expression

Virginia v. Black

Closed Expands Expression

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    April 7, 2003
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    538 U.S. 343
  • Region & Country
    United States, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Constitutional Law
  • Themes
    Content Regulation / Censorship, Hate Speech
  • Tags
    Content-Based Restriction

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Case Analysis

Case Summary and Outcome

 The Supreme Court of the United States held that a state may enact a statute banning the act of cross burning only if there is an intention to intimidate others. The State of Virginia convicted three individuals for violating a statute that banned cross burning in public spaces or on the property of others with the intent to intimidate. However the statute viewed the physical act of burning a cross as sufficient evidence of intimidation. The Court found that acts of cross burning often involved intimidation, and thus statutes banning cross burning do not run afoul of the First Amendment, which permits content-based restriction of true threats. However, the Court also ruled that the State of Virginia’s statute was facially unconstitutional because it treated any act of cross burning as a prima facie evidence of an intent to intimidate.



This case arises out of the criminal conviction of three defendants for violation of a statute of Virginia State banning cross burning in the property of another or public places with intent to intimidate or place others in fear of bodily harm.  Under the statute’s prima facie evidence provision, the physical act of burning a cross was seen as sufficient evidence for the jury to find an intent to intimidate others.

Upon their convictions, each defendant appealed to the Supreme Court of Virginia, contending that that statute was facially unconstitutional.

The Court later declared the statute as unconstitutional because its prima facie evidence provision posed the risk of prosecuting legitimate exercise of symbolic expressions.

The State of Virginia petitioned the decision to Supreme Court of the United States.

Decision Overview

Justice O’Connor delivered the Court’s majority opinion.

The underlying issue for the Court was whether the Virginia’s statute violated the First Amendment right to free speech because of its prima facie evidence provision.

The Court first recalled that the First Amendment “affords protection to symbolic or expressive conduct as well as to actual speech.”  [p. 358]  According to the Court, however, the importance of public interest in order and morality may restrict the content of speech in a few limited areas.  [p. 358]  For example, the First Amendment permits states to ban true threats, defined by the Court as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”  [p. 359]   Relevant to the case in hand, the Court regarded intimidation as 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.”  [p. 360]  The Court found that the act of cross burning often involves intimidation by creating fear in victims that they are a target of violence.

Furthermore, based its reasoning in R.A.V. v. St. Paul, 505 U.S. 377 (1992), the Court found that the statute as it banned cross burning with intent to intimidate did not run afoul of the First Amendment because it imposed content-based restriction on a particular class of speech likely to inspire fear of bodily harm.

However, the Court ruled the the prima facie evidence provision rendered the statute as facially unconstitutional because it would create an unacceptable risk of suppressing the act of cross burning as part a legitimate form of symbolic speech protected under the First Amendment, such as a statement of ideology or a symbol of group solidarity.  [p. 366-367]

Accordingly, the Court concluded that because of the interpretation  of the prima facie evidence provision given by the jury instruction, the  provision made the statute facially unconstitutional.

The Court affirmed the judgment of the Supreme Court of Virginia as to its interpretation on the prima facie evidence provision.



Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This case expands freedom of expression by holding unconstitutional a statute that criminalized any type of cross burning without the requirement that the cross burning be done with the intent to intimidate.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

    The Supreme Court of the United States held that he First Amendment right to free speech permits content-based restriction on particular classes of speech.

  • U.S., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

    The Supreme Court of the United States held that the government may regulate certain categories of expression consistent with the Constitution.

  • U.S., Abrams v. United States, 250 U.S. 616 (1919)

    “The First Amendment, applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law … abridging the freedom of speech.”

  • U.S., Texas v. Johnson, 491 U.S. 397 (1989)

    The U.S. Supreme Court held that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

  • U.S., Tinker v. Des Moines Indep. Cmty. School Dist., 393 U.S. 503 (1969)

    According to the U.S. Supreme Court, the First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.

  • U.S., Cohen v. California, 403 U.S. 15 (1971)

    The U.S. Supreme Court found that it is within the permissible parameters of the First Amendment to sanction “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke
    violent reaction.”

  • U.S., Brandenburg v. Ohio, 395 U.S. 444 (1969)

    “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

  • U.S., Madsen v. Women's Health Ctr., Inc., 512 U.S. 753 (1994)

    “[T]hreats of violence are outside the First Amendment.”

  • U.S., Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357 (1997)

    “[T]hreats of violence are outside the First Amendment.”

  • U.S., Houston v. Hill, 482 U.S. 451 (1987).

    According to the U.S. Supreme Court, “a statute that make[s] unlawful a substantial amount of constitutionally protected conduct may be held facially invalid.”

  • U.S., Osborne v. Ohio, 495 U.S. 103 (1990)

    “Where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”

  • U.S., Harrison v. NAACP, 360 U.S. 167 (1959)

    “[N]o principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them.”

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision of the U.S. Supreme Court creates both binding and persuasive precedent concerning the interoperation of the First Amendment as applied in this case.

The decision was cited in:

Official Case Documents

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