3/7/17
Marion
Virginia v. Black
Virginia v. Black is a landmark case in First Amendment law that deals primarily with
hate speech. The case was appealed to the Supreme Court in 2003 by Black after the Virginia
district court initially sided with the state. The Supreme Court case itself is a collection of three
separate Virginia cases both involving cross burning. Barry Black, Richard Elliott, and Jonathan
O’Mara were all convicted of violating Virginia Code 18.2-423, which makes it “unlawful for
any person or persons, with the intent of intimidating any person or group . . . to burn, or cause to
be burned, 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.”
Blacks incident took place at a Ku Klux Klan rally on private property with the permission of the
land owner. Elliot and O’Mara’s incident took place in tandem when they attempted to burn a
cross on their African-American neighbor’s yard. In Black’s trial, he objected on first
amendment grounds, to which the “prosecutor responded that the instruction was ‘taken straight
out of the [Virginia] Model Instructions.’” Something else of note in this case is that the trial
court instructed the jury that “the burning of a cross by itself is sufficient evidence from which
you may infer the required intent.” In Elliott’s trial the judge said that the same prima facie
statement given to Black’s jury would be given to Elliott’s jury as well. However, at trial the jury
was instructed that they have to prove that “‘the defendant intended to commit cross burning . . .
did a direct act towards the commission of cross burning . . . [and that] the defendant had the
intent of intimidating any person.’” In O’Mara’s case he pleaded guilty to the charges of
violating the statute, but reserved he the right to challenge the constitutionality of the statute
itself. All three men were fined $2,500 while Elliot and O’Mara were also sentenced to 90 days
in jail. The Virginia Appellate Court ruled in favor of Black on the grounds that it is
unconstitutional to discriminate “on the basis of content and viewpoint.” This allowed for the
state to appeal to the Supreme Court.
The majority opinion of the court was delivered by Justice O’Connor in which they found
Virginia Code 18.2-423 to be unconstitutional due to the implications of the prima facie
evidence. They did rule however that “a state, consistent with the First Amendment, may ban
cross burning carried out with the intent to intimidate.” To truly understand the majority opinion
you must first start from the beginning. Justice O’Connor initially outlines the three separate
cases and distinguishes them from each other. She also gives background information on R.A.V.
v. St. Paul, another cross burning case that is referenced throughout Virginia v. Black. Once this
