• Last updated on November 11, 2022

In holding that government may not punish a person for burning a cross unless there is sufficient evidence of an intent to intimidate or threaten, the Supreme Court helped clarify what kind of hate speech may be proscribed.

Before Virginia v. Black, the Supreme Court’s rulings on First Amendment protection of unpopular and dangerous ideas had left many questions unanswered. In Chaplinsky v. New Hampshire[c]Chaplinsky v. New Hampshire (1942), the Court had held that face-to-face “fighting words” and insults might be punishable. The Court in R.A.V. v. City of St. Paul,[c]R.A.V. v. City of St. Paul[RAV v. City of St. Paul] however, had overthrown a conviction for a cross burning, finding that the city ordinance violated the First Amendment because of its “viewpoint discrimination” and its failure to distinguish between protected and unprotected speech.

Virginia v. Black involved Barry Black and two other Ku Klux KlanKu Klux Klan members who were convicted separately of violating a Virginia statute that had made it a felony to burn a cross “with the intent of intimidating any person or group.” The law specified that any such burning would be “prima facie evidence of intent to intimidate a person or group.” The Virginia Supreme Court overturned the convictions based on the conclusion that the statute violated the First Amendment.

The U.S. Supreme Court held by a 6-3 majority that the statute was constitutional so long as it was construed to punish the act of cross-burning when the intent was to intimidate or threaten other persons. Writing for the majority, however, Justice Sandra Day O’Connor went on to explain that it would be unconstitutional to punish a cross-burner whose intent was simply to communicate a viewpoint, such as pride of ancestry, without implying any threat or intimidation. Based on this analysis, the conviction of Barry Black was overturned, whereas the convictions of the other two men were remanded to the lower courts for reexamination consistent with the Supreme Court’s analysis of the law. Ironically, three of the more liberal justices held that the law was unconstitutional.

First Amendment

Hate speech

Speech and press, freedom of

Symbolic speech

Categories: History