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
Virginia v. Black involved Barry Black and two other Ku Klux Klan
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.
Speech and press, freedom of