Black v. Commonwealth

Present: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and
Lemons, JJ., and Whiting, S.J. *

BARRY ELTON BLACK

v. Record No. 010123

COMMONWEALTH OF VIRGINIA

RICHARD J. ELLIOTT

v. Record No. 003014 OPINION BY JUSTICE DONALD W. LEMONS
November 2, 2001
COMMONWEALTH OF VIRGINIA

JONATHAN O’MARA

v. Record No. 010038

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In these appeals, we consider whether Code § 18.2-423,

which prohibits the burning of a cross with the intent of

intimidating any person or group of persons, impermissibly

infringes upon constitutionally protected speech. The case of

Black v. Commonwealth involves a Ku Klux Klan rally on private

property with the permission of the owner, where a cross was

burned as a part of the ceremony. The companion cases of

O’Mara v. Commonwealth and Elliott v. Commonwealth involve the

attempted burning of a cross in the backyard of the home of

*
Justice Keenan did not participate in the hearing and
decision of this case.
James S. Jubilee (“Jubilee”), an African-American, without

permission. We conclude that, despite the laudable intentions

of the General Assembly to combat bigotry and racism, the

selectivity of its statutory proscription is facially

unconstitutional because it prohibits otherwise permitted

speech solely on the basis of its content, and the statute is

overbroad.

FACTS AND PROCEEDINGS BELOW

The prosecutions of Richard J. Elliott (“Elliott”) and

Jonathan O’Mara (“O’Mara”) arose from a single incident in the

City of Virginia Beach. On May 2, 1998, Elliott and O’Mara

attended a party at the home of David Targee (“Targee”).

Elliott told several people at the party that his neighbor,

Jubilee, had complained about the discharge of firearms in

Elliott’s backyard. In response, Elliott suggested they burn

a cross in Jubilee’s yard.

Elliott, O’Mara, and Targee hastily constructed a crude

wooden cross in Targee’s garage. While transporting the cross

to the Jubilee home, Elliott referred to Jubilee with a racial

epithet confirming Jubilee’s race. Upon arriving at Jubilee’s

home, O’Mara put the cross in the ground and attempted to

light it.

In addition to the epithet, the record is replete with

references to Jubilee’s race. In the Commonwealth’s motion

2
for joinder of defendants in the Elliott and O’Mara cases, it

is stated: “Mr. James Jubilee is an African-American.” A fire

investigator with the City of Virginia Beach testified that

Targee knew the Jubilees were black before he participated in

the cross burning. Throughout the O’Mara and Elliott

prosecution, the Commonwealth referred to “burning a cross in

a black family’s yard.” The questions of counsel and argument

to the court are replete with references to race and racism.

Pursuant to a plea agreement, O’Mara pled guilty to

attempted cross burning and conspiracy to commit cross

burning, and was sentenced to 90 days in jail and a $2500 fine

on each charge, with part of the time and fines suspended.

Under the plea agreement, O’Mara retained the right to appeal

the constitutionality of Virginia’s cross burning statute.

Elliott was also charged with attempted cross burning and

conspiracy to commit cross burning. Upon his plea of not

guilty, a jury found him guilty of attempted cross burning,

but not guilty of conspiracy. Elliott was sentenced to 90

days in jail and was fined $2500.

O’Mara and Elliott appealed to the Court of Appeals,

alleging that the Virginia cross burning statute violated the

free speech clauses of both the United States and Virginia

Constitutions. The Court of Appeals affirmed the convictions,

holding that the statute “targets only expressive conduct

3
undertaken with the intent to intimidate another, conduct

clearly proscribable both as fighting words and a threat of

violence.” O’Mara v. Commonwealth, 33 Va. App. 525, 536, 535

S.E.2d 175, 181 (2000).

In the third case reviewed, Barry Elton Black (“Black”)

organized and led a Ku Klux Klan rally on August 22, 1998, in

Carroll County. Following speeches filled with racial,

ethnic, and religious bigotry, a cross approximately 25 to 30

feet tall was ignited.

Black was indicted for violating Virginia’s cross burning

statute. He moved for dismissal of the indictment on the

grounds that the statute was unconstitutional. The trial

court denied Black’s motion and, upon conviction by a jury,

Black was sentenced to pay a fine of $2500.

Black appealed his conviction, and the Court of Appeals

affirmed the judgment of the trial court, “[f]or the reasons

stated in O’Mara v. Commonwealth.” Black v. Commonwealth,

Rec. No. 1581-99-3, December 19, 2000, at 1.

THE CROSS BURNING STATUTE

Code § 18.2-423, the cross burning statute, provides

that:

It shall be unlawful for any person
or persons, with the intent of
intimidating any person or group of
persons, to burn, or cause to be burned, a
cross on the property of another, a

4
 highway or other public place. Any person
who shall violate any provision of this
section shall be guilty of a Class 6
felony.
Any such burning of a cross shall be
prima facie evidence of an intent to
intimidate a person or group of persons.

Black 1 contends that the cross burning statute is

unconstitutional because it engages in viewpoint and content

discrimination and it fails to incorporate the standards

articulated by the United States Supreme Court in Brandenburg

v. Ohio, 395 U.S. 444 (1969), concerning incitement to, and

likelihood of, imminent lawless action. Additionally, Black

contends that the provision of the statute permitting an

inference of intent to intimidate from the mere act of burning

a cross, which excuses the Commonwealth from its proof

requirement for the establishment of a prima facie case,

further aggravates viewpoint and content discrimination and

violates the limitations prescribed in Brandenburg.

The geometric configuration of a single vertical bar

traversed by a single shorter horizontal bar has no unusual

inherent properties. But its symbolic meaning is powerful.

For Christians, the symbol of the cross evokes remembrance of

the crucifixion of Christ. Unfortunately, such powerful

1
Because of the similar constitutional challenges
presented in these consolidated cases, our references to
Black’s contentions shall be inclusive of those mounted by
O’Mara and Elliott.

5
symbols are often subject to misappropriation. As recognized

by Justice Clarence Thomas in his concurring opinion in

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S.

753, 770-71 (1995), the burning of a cross has acquired a

specific meaning:

There is little doubt that the Klan’s
main objective is to establish a racist
white government in the United States. In
Klan ceremony, the cross is a symbol of
white supremacy and a tool for the
intimidation and harassment of racial
minorities, Catholics, Jews, Communists,
and any other groups hated by the Klan.
The cross is associated with the Klan not
because of religious worship, but because
of the Klan’s practice of cross
burning. . . . The Klan simply has
appropriated one of the most sacred of
religious symbols as a symbol of hate.

In 1952, in direct response to Ku Klux Klan activities in

Virginia, 2 including incidents of cross burning, the General

Assembly enacted the predecessor statute to the law at issue

2
See Police Aid Requested by Teacher: Cross is Burned in
Negro’s Yard, Richmond News Leader, Jan. 21, 1949, at 19;
Cross Fired Near Suffolk Stirs Probe: Burning Second in Past
Week, Richmond Times-Dispatch, Jan. 23, 1949, § 2, at 1; Huge
Cross is Burned on Hill Just South of Covington, Richmond
Times-Dispatch, Apr. 14, 1950, at 6; Cross Burned at Manakin;
Third in Area, Richmond Times-Dispatch, Feb. 26, 1951, at 4;
Cross is Burned at Reedville Home, Richmond News Leader, Apr.
14, 1951, at 1; ‘State Might Well Consider’ Restrictions on Ku
Klux Klan, Governor Battle Comments, Richmond Times-Dispatch,
Feb. 6, 1952, at 7; Bill to Curb KKK Passed by the House,
Richmond Times-Dispatch, Mar. 8, 1952, at 5; Name Rider
Approved by House: Measure Now Goes to Battle, Richmond News
Leader, Feb. 23, 1952, at 1; Governor Backs Curb on Ku Klux
Activities, Richmond Times-Dispatch, Feb. 10, 1952, § 2, at 1.

6
in these cases. 3 The cross burning statute was amended on

several occasions, including an amendment expanding the sites

where cross burning may not take place, and the addition of

the inference of intent to intimidate from the mere act of

burning a cross for the purposes of establishing a prima facie

case under the statute. 4

SELECTIVE REGULATION OF SPEECH BASED UPON CONTENT

It is well established that non-verbal, symbolic

expression is “speech,” and is as fully protected by the First

Amendment to the United States Constitution as more

traditional means of communication. See, e.g., Tinker v. Des

Moines Indep. Sch. Dist., 393 U.S. 503 (1969) (wearing of

black arm bands by high school students as a protest against

the war in Vietnam). However pernicious the expression may

be, “[i]f 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.” Texas v. Johnson, 491 U.S.

3
Code § 18.1-365 stated in pertinent part:
It shall be unlawful for any person or persons to place
or cause to be placed on the property of another in the
Commonwealth of Virginia a burning or a flaming cross or any
manner of exhibit in which a burning or flaming cross, real or
simulated, is a whole or a part, without first obtaining
written permission of the owner or occupier of the premises so
to do.
1952 Va. Acts ch. 483 § 2 at 777.

7
397, 414 (1989). Any question about the constitutional

infirmity of such selective proscription of speech was

resolved by the United States Supreme Court in the case of

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

The Virginia cross burning statute is analytically

indistinguishable from the ordinance found unconstitutional in

R.A.V. R.A.V. involved the prosecution of a teenager who,

with several other minors, allegedly assembled a crudely made

cross and burned the cross inside the fenced yard of a black

family. Id. at 379. The City of St. Paul prosecuted under

its Bias-Motivated Crime Ordinance, which provided:

Whoever places on public or private
property a symbol, object, appellation,
characterization or graffiti, including,
but not limited to, a burning cross or
Nazi swastika, which one knows or has
reasonable grounds to know arouses anger,
alarm or resentment in others on the basis
of race, color, creed, religion or gender
commits disorderly conduct and shall be
guilty of a misdemeanor.

St. Paul, Minn., Legis. Code § 292.02 (1990). The trial court

held that the statute was unconstitutional, but the Minnesota

Supreme Court reversed, construing the St. Paul ordinance as

limited to conduct that amounts to “fighting words,” namely,

“conduct that itself inflicts injury or tends to incite

immediate violence . . . .” In re Welfare of R.A.V., 464

4
See 1968 Va. Acts ch. 350 at 450; 1975 Va. Acts ch. 14

8
N.W.2d 507, 510 (Minn. 1991). Accepting the limited

construction placed upon the statute by the Minnesota Supreme

Court, the United States Supreme Court held that, even if the

expression reached by the ordinance was proscribable under the

“fighting words” doctrine, the ordinance was “facially

unconstitutional in that it prohibit[ed] otherwise permitted

speech solely on the basis of the subjects the speech

addresses.” R.A.V., 505 U.S. at 381.

Noting that “[t]he First Amendment generally prevents

government from proscribing speech, or even expressive

conduct, because of disapproval of the ideas expressed,” the

Court observed that “[c]ontent-based regulations are

presumptively invalid.” Id. at 382 (citations omitted).

Exceptions to the rule include: obscenity (e.g., Roth v.

United States, 354 U.S. 476 (1957)), defamation (e.g.,

Beauharnais v. Illinois, 343 U.S. 250 (1952)), and “fighting

words” (e.g., Chaplinsky v. New Hampshire, 315 U.S. 568

(1942)). But simply because particular categories of speech

may be regulated does not mean that such regulation may

selectively discriminate on the basis of content. As the

Court in R.A.V. stated:

And just as the power to proscribe
particular speech on the basis of a
noncontent element (e.g., noise) does not

at 90, ch. 15 at 174.

9
 entail the power to proscribe the same
speech on the basis of a content element;
so also, the power to proscribe it on the
basis of one content element (e.g.,
obscenity) does not entail the power to
proscribe it on the basis of other content
elements.

R.A.V., 505 U.S. at 386.

The Commonwealth argues that the Virginia statute is

neutral because “Code § 18.2-423 applies equally to anyone who

burns a cross for the purpose of intimidating anyone.” The

Commonwealth further dwells upon the phrase in R.A.V. which

states that “threats of violence are outside the First

Amendment.” 505 U.S. at 388. This quotation is incomplete

and distorts the holding of R.A.V. While a statute of neutral

application proscribing intimidation or threats may be

permissible, a statute punishing intimidation or threats based

only upon racial, religious, or some other selective content-

focused category of otherwise protected speech violates the

First Amendment. Id.

Emphasizing the point, the Court in R.A.V., noted:

Thus, the government may proscribe libel;
but it may not make the further content
discrimination of proscribing only libel
critical of the government.

R.A.V., 505 U.S. at 384.

We have long held, for example, that
nonverbal expressive activity can be
banned because of the action it entails,
but not because of the ideas it expresses

10
 – so that burning a flag in violation of
an ordinance against outdoor fires could
be punishable, whereas burning a flag in
violation of an ordinance against
dishonoring the flag is not.

Id. at 386.

A State might choose to prohibit only that
obscenity which is the most patently
offensive in its prurience – i.e., that
which involves the most lascivious
displays of sexual activity. But it may
not prohibit, for example, only that
obscenity which includes offensive
political messages.

Id. at 388.

And the Federal Government can criminalize
only those threats of violence that are
directed against the President, see 18
U.S.C. § 871 – since the reasons why
threats of violence are outside the First
Amendment (protecting individuals from the
fear of violence, from the disruption that
fear engenders, and from the possibility
that the threatened violence will occur)
have special force when applied to the
person of the President . . . . But the
Federal Government may not criminalize
only those threats against the President
that mention his policy on aid to inner
cities.

Id.

R.A.V. makes it abundantly clear that, while certain

areas of speech and expressive conduct may be subject to

proscription, regulation within these areas must not

11
discriminate based upon the content of the message. 5 In this

case, the Commonwealth seeks to proscribe expressive conduct

that is intimidating in nature, but selectively chooses only

cross burning because of its distinctive message. As the

Court in R.A.V. succintly stated: “the government may not

regulate use based upon hostility – or favoritism –towards the

underlying message expressed.” Id. at 386.

While not specifically stating that “race, color, creed,

religion or gender” is the subject of proscription, the

absence of such language in the Virginia statute does not mask

5
It is important to note that R.A.V. did not interpret the
First Amendment to forbid “underinclusiveness.” To the
contrary, the Court held that:

In our view, the First Amendment imposes
not an “underinclusiveness” limitation but
a “content discrimination” limitation upon
a State’s prohibition of proscribable
speech. There is no problem whatever, for
example, with a State’s prohibiting
obscenity (and other forms of proscribable
expression) only in certain media or
markets, for although that prohibition
would be “underinclusive,” it would not
discriminate on the basis of content.

Id. at 387. Of course, the subjects of the proscription
expressly stated in the St. Paul ordinance were symbols and
words, including a burning cross or a Nazi swastika, evoking
“anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender.” As the Court noted,
excluded from proscription was identical behavior with a
different subject, such as “political affiliation, union
membership, or homosexuality.” Id. at 391. The infirmity
addressed in R.A.V., as in the cases before this Court, was

12
the motivating purpose behind the statutory prohibition of

cross burning. The United States Supreme Court dealt with a

similar question in the “flag burning” cases. In Texas v.

Johnson, Johnson was prosecuted under a statute making it

unlawful to intentionally or knowingly desecrate the United

States flag. “Desecrate” was defined as “deface, damage, or

otherwise physically mistreat in a way that the actor knows

will seriously offend one or more persons likely to observe or

discover his action.” 491 U.S. at 400 (quoting Texas Penal

Code Ann. § 42.09 (1989)). After the Supreme Court declared

the Texas statute unconstitutional, Congress enacted the Flag

Protection Act of 1989. In subsequent litigation concerning

the Act, the government maintained that the absence of

language in the Act focusing upon the content of the actor’s

symbolic speech cured any constitutional problems. The

Supreme Court disagreed in United States v. Eichman, 496 U.S.

310, 315 (1990)(internal quotations omitted), stating that,

“[a]lthough the [statute] contains no explicit content-based

limitation on the scope of prohibited conduct, it is

nevertheless clear that the Government’s asserted interest is

related to the suppression of free expression.”

not “underinclusiveness;” rather, it was the selective
discrimination in the ordinance based upon content.

13
 Similarly, considering the historical and current context

of cross burning, and the statute’s reliance on such context

for the provision of an inference of intent to intimidate from

the mere act of burning a cross, it is clear that the

Commonwealth’s interest in enacting the cross burning statute

is related to the suppression of free expression as well.

The virulent symbolism of cross burning has been

discussed in so many judicial opinions that its subject and

content as symbolic speech has been universally acknowledged.

For example, the Supreme Court of South Carolina declared a

statute 6 with operative language similar to ours

unconstitutional and observed: “a burning cross historically

conveys ideas capable of eliciting powerful responses from

those engaging in the conduct and those receiving the

message.” State v. Ramsey, 430 S.E.2d 511, 514 (S.C. 1993).

The Court of Appeals of Maryland also declared a statute 7 with

6
S.C.CODE ANN. § 16-7-120 (1985) provided:
It shall be unlawful for any person to place or cause to be
placed in a public place in the State a burning or flaming
cross or any manner of exhibit in which a burning or flaming
cross, real or simulated, is the whole or a part or to place
or cause to be placed on the property of another in the State
a burning or flaming cross or any manner of exhibit in which a
burning or flaming cross, real or simulated, is the whole or a
part, without first obtaining written permission of the owner
or occupier of the premises so to do.
7
MD. ANN. CODE art.27, § 10A (1957, 1992 Repl. Vol.)
provided in pertinent part:

14
operative language similar to ours unconstitutional and

observed:

Those who openly burn crosses do so fully
cognizant of the controversial racial and
religious messages which such acts impart.
Historically, the Ku Klux Klan burned
crosses to express hostility towards
blacks and other groups it disfavored, and
it is that idea which contemporary cross
burners aim to perpetuate.

State v. Sheldon, 629 A.2d 753, 757 (Md. 1993).

The historical context for the passage of the Virginia

cross burning statute is uncontrovertible. In an atmosphere

of racial, ethnic, and religious intolerance, the General

Assembly acted to combat a particular form of intimidating

symbolic speech – the burning of a cross. It did not

proscribe the burning of a circle or a square because no

animating message is contained in such an act.

Initially, the cross burning proscription extended only

to acts on property of another without permission. In 1968,

the limitation concerning situs was removed, and in 1975, the

addition of language establishing prima facie evidence of

intent to intimidate from the mere act of burning a cross

reaffirmed the legislative context of the statute. During

It shall be unlawful for any person or persons to burn or
cause to be burned any cross or other religious symbol upon
any private or public property within this State without the
express consent of the owner of such property and without

15
oral argument, the Commonwealth maintained that the portion of

the statute proscribing the burning of a cross had nothing to

do with the motivation of the actor. When asked how the

Commonwealth could justify the inference of intimidation

provided in the last sentence of the statute, the Commonwealth

relied upon the historical context of cross burning. The

Commonwealth cannot have it both ways.

“SECONDARY EFFECTS”

As described above, the R.A.V. analysis begins with

categories of speech that may be subject to regulation and

holds that such regulation may not selectively discriminate on

the basis of content. However, the Court in R.A.V. recognized

that some selective regulation of constitutionally protected

speech may be permissible if it is based upon the “secondary

effects” of speech rather than its content. See Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986). In Renton, the

ordinance under review proscribed the location of an adult

motion picture theater within 1,000 feet of any residential

zone, single– or multiple–family dwelling, church, park, or

school. Because the ordinance did not ban adult theaters

entirely, the Court held that the ordinance is “properly

first giving notice to the fire department which services the
area in which such burning is to take place.

16
analyzed as a form of time, place, and manner regulation.”

Id. at 46.

The analysis used by the Court focused upon whether the

regulation was directed at the content of the protected speech

or at a legitimate area of government concern. Determining

that the dominant motive of the ordinance was “to prevent

crime, protect the city’s retail trade, maintain property

values, and generally ‘protec[t] and preserv[e] the quality of

[the city’s] neighborhoods, commercial districts, and the

quality of urban life,’ the Court upheld the ordinance. Id.

at 48. The Court held that the regulation in Renton was

“aimed not at the content of the films shown at ‘adult motion

picture theatres,’ but rather at the secondary effects of such

theaters on the surrounding community.” Id. at 47. By

contrast, the legislative history of the Virginia cross

burning statute, the meaning afforded the expressive conduct,

and the provision of prima facia evidence of intent to

intimidate from the mere act of burning a cross, make it

abundantly clear that Code § 18.2-423 is aimed at regulating

content, not “secondary effects.”

OVERBREADTH ANALYSIS

As discussed herein, the majority opinion in R.A.V. holds

that certain categories of speech may be regulated, but the

government may not discriminate in its proscription within

17
these categories on the basis of content. The concurring

opinions in R.A.V. preferred a more traditional analysis

confined to the question whether the ordinance suffered from

overbreadth. As Justice White noted, St. Paul’s ordinance was

unconstitutionally overbroad because:

Although the ordinance as construed
reaches categories of speech that are
constitutionally unprotected, it also
criminalizes a substantial amount of
expression that -- however repugnant -- is
shielded by the First Amendment.

Id. at 413 (J. White, concurring). The Commonwealth’s cross

burning statute is similarly defective.

It is not simply the prospect of conviction under the

statute that renders it overbroad. The enhanced probability

of prosecution under the statute chills the expression of

protected speech sufficiently to render the statute overbroad.

Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392-93

(1988). Threat of prosecution under a criminal statute “tends

to chill the exercise of First Amendment rights.” North

Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710

(4th Cir. 1999). Self-censorship, “a harm that can be

realized even without an active prosecution,” inhibits free

speech. Vermont Right to Life Committee, Inc. v. Sorrell, 221

F.3d 376, 382 (2nd Cir. 2000).

18
 Code § 18.2-423 provides in part that “any such burning

of a cross shall be prima facie evidence of an intent to

intimidate a person or group of persons.” Assuming that the

act is done “on the property of another, a highway or other

public place,” 8 the act of burning a cross alone, with no

evidence of intent to intimidate, will nonetheless suffice for

arrest and prosecution and will insulate the Commonwealth from

a motion to strike the evidence at the end of its case-in-

chief. That the trier of fact ultimately finds the actor not

guilty of the offense is little consolation after arrest and

prosecution for speech or expressive conduct that is otherwise

protected. Arrest for, and prosecution of, otherwise

protected speech, with no evidence of a critical element of

the offense other than a statutorily supplied inference,

chills free expression. Code § 18.2-423 sweeps within its

ambit for arrest and prosecution, both protected and

unprotected speech. As such it is overbroad.

BRANDENBURG ISSUES

In R.A.V., the Court acknowledged that the narrow

construction placed upon the ordinance limited its application

to “fighting words,” a proper category of proscription.

8
The Virginia statute prohibits cross-burning “on the
property of another, a highway or other public place.”
Remarkably, it sweeps within its prohibition the act “on the
property of another” with or without permission.

19
Nonetheless, the ordinance was declared unconstitutional

because of its selective application to only certain

expressions of fighting words. Virginia’s cross burning

statute suffers from the same infirmity. Because we hold that

the statute impermissibly proscribes otherwise protected

speech on the basis of content, and because the statute is

overbroad, it is unnecessary to address the remaining

challenges under Brandenburg. 9

CONCLUSION

Under our system of government, people have the right to

use symbols to communicate. They may patriotically wave the

flag or burn it in protest; they may reverently worship the

cross or burn it as an expression of bigotry. Neutrally

expressed statutes prohibiting vandalism, assault, and

trespass may have vitality for the prosecution of particularly

offensive conduct. While reasonable prohibitions upon time,

place, and manner of speech, and statutes of neutral

application may be enforced, government may not regulate

speech based on hostility –or favoritism –towards the

underlying message expressed.

9
Additionally, because we resolve these questions under
the First Amendment to the United States Constitution, it is
unnecessary to address Elliott’s and O’Mara’s additional
argument that Article I, § 12 of the Virginia Constitution is
also violated.

20
 A statute selectively addressed to the content of

symbolic speech is not permitted under the First Amendment.

Additionally, a statute that sweeps within its ambit both

protected and unprotected speech is overbroad. Accordingly,

we hold that Code § 18.2-423 violates the First Amendment of

the United States Constitution. The convictions in each of

these appeals will be vacated and the indictments will be

dismissed.

Reversed and dismissed.

JUSTICE KINSER, with whom SENIOR JUSTICE WHITING joins,
concurring.

In the words of the dissent, I, too, “stand second to

none in my devotion to the First Amendment’s mandate that most

forms of speech are protected, irrespective of how repugnant

and offensive the message uttered or conveyed may be to

others.” However, in contrast to the dissent, I cannot be

dissuaded from that devotion, and believe that the “fair

application of our jurisprudence” must include a fair and

proper application of the First Amendment. Therefore, I fully

agree with the majority opinion. I write separately to

address certain inferences and conclusions drawn by the

dissent.

Relying on the definition of the term “intimidation” set

forth in Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d

21
665, 670 (1985) (“intimidation . . . means putting a victim in

fear of bodily harm”), the dissent concludes that Code § 18.2-

423 proscribes only conduct that constitutes “true threats.”

Expanding on that definition, the dissent then states that the

purpose of Code § 18.2-423 is “to proscribe physical acts

intended to inflict bodily harm upon the victims of such

acts.” The dissent’s attempt to equate an intent to

intimidate with a “true threat” or a physical act intended to

inflict bodily harm has no legal basis and misconstrues the

decision in Sutton.

The issue in that case was whether there was sufficient

evidence to prove that the defendant engaged in sexual

intercourse with the victim against her will by intimidation.

228 Va. at 662, 324 S.E.2d at 669. Noting that the General

Assembly had expanded the scope of the statute proscribing

rape to include “a prohibition against sexual intercourse with

a woman against her will by threat or intimidation,” as well

as by force, the Court explained that “[t]here is a difference

between threat and intimidation[,]” and that “[i]ntimidation

may occur without threats.” Id. at 663, 324 S.E.2d at 669-70.

Thus, our established jurisprudence does not support the

proposition that Code § 18.2-423 proscribes only conduct that

constitutes “true threats.” An act performed with the intent

to intimidate, i.e., to place an individual in fear of bodily

22
harm, does not rise to the same level as a threat (defined in

Sutton as “expression of an intention to do bodily harm,” 228

Va. at 663, 324 S.E.2d at 670), or a physical act intended to

inflict bodily harm.

For the same reason, Code § 18.2-423 does not satisfy the

principle enunciated in Brandenburg v. Ohio, 395 U.S. 444, 447

(1969), that “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.” Although reprehensible and offensive, the act of

burning a cross with the intent to intimidate is not

necessarily speech aimed at “producing imminent lawless

action.” Id. That proposition is borne out by the fact that

the cross burning for which Barry Elton Black was convicted

occurred on private property with the permission of the owner.

Even if the dissent were correct that Code § 18.2-423

proscribes only conduct that constitutes “true threats,” the

General Assembly cannot engage in content discrimination by

selectively prohibiting only those “true threats” that convey

a particular message. R.A.V. v. City of St. Paul, 505 U.S.

377, 388 (1992). Unfortunately, that is what the General

Assembly has done in Code § 18.2-423 by confining the

23
proscription in that statute to the act of burning a cross.

The constitutional infirmity is not, as suggested by the

dissent, cured by the fact that the statute does not prohibit

all acts of burning a cross. The statute’s content-based

discrimination still exists.

Finally, the dissent’s statement that the majority has

concluded that the Constitution of the United States prevents

the General Assembly from enacting a statute that prohibits

persons from burning a cross “in a manner that intentionally

places citizens in fear of bodily harm” misinterprets the

holding in the majority opinion. I believe that a more

accurate characterization of the majority’s conclusion is that

the General Assembly may, in a statute of neutral application,

proscribe expressive conduct performed with the intent to

intimidate another individual, but that the General Assembly

may not selectively prohibit only certain acts of intimidation

based upon the content of the underlying message.

For these reasons, I respectfully concur.

JUSTICE HASSELL, with whom CHIEF JUSTICE CARRICO and JUSTICE
KOONTZ join, dissenting.

I dissent. The majority opinion invalidates a statute

that for almost 50 years has protected our citizens from being

placed in fear of bodily harm by the burning of a cross. The

majority concludes that the Constitution of the United States

24
prohibits the General Assembly from enacting this statute. I

find no such prohibition in either the Constitution of

Virginia or the Constitution of the United States. Without

question, the framers of the First Amendment never

contemplated that a court would construe that Amendment so

that it would permit a person to burn a cross in a manner that

intentionally places citizens in fear of bodily harm.

I am concerned about the fair application of our

jurisprudence to every citizen and the proper interpretation

of our Federal and State Constitutions. These same concerns

for fairness and the safety of our citizens were the very

basis for the General Assembly's decision to enact Code

§ 18.2-423 almost 50 years ago.

I stand second to none in my devotion to the First

Amendment's mandate that most forms of speech are protected,

irrespective of how repugnant and offensive the message

uttered or conveyed may be to others. However, contrary to

the view adopted by the majority in these appeals, the First

Amendment does not permit a person to burn a cross in a manner

that intentionally places another person in fear of bodily

harm.

I.

A.

25
 Barry Elton Black was indicted by a Carroll County grand

jury for the burning of a cross with the intent to intimidate

in violation of Code § 18.2-423. At the conclusion of a

trial, the jury found him guilty as charged in the indictment

and fixed his punishment at $2,500. Black appealed the

circuit court's judgment confirming the jury's verdict to the

Court of Appeals, which affirmed his conviction. Black v.

Commonwealth, Record No. 1581-99-3 (December 19, 2000).

The following evidence was presented during Black's

trial. On August 22, 1998, H. Warren Manning, the Sheriff of

Carroll County, received a report that members of the Ku Klux

Klan intended to conduct a rally in Carroll County that

evening. Later, Sheriff Manning drove his police car to the

site of the rally, where three men dressed in white robes and

hats approached him. Sergeant Richard C. Clark, Jr., met

Sheriff Manning at the site of the rally.

Approximately 45 minutes later, after the rally started,

Sheriff Manning observed the Klan members burn a cross that

was approximately 25 to 30 feet tall. Sheriff Manning

approached Black and inquired, "who [is] responsible for

burning the cross?" Black responded that he was responsible

for burning the cross, and he was placed under arrest.

26
 The rally was conducted on property owned by Annabell

Sechrist. She was present during the rally, and she had given

the Ku Klux Klan permission to burn the cross on her property.

Rebecca Sechrist, a Caucasian female, lived on property

adjacent to the property where the rally occurred. Sechrist

observed the rally from her home. In response to the

question, "[w]hat statements did you hear?", she testified:

"They . . . talked a lot about blacks - and I don't call [ ]

the word they called it . . . it started with an N and I

don't, I don't use that word, I'm sorry – but they talked real

bad about the blacks and the Mexicans and they talked about

how, one . . . guy got up and said that he would love to take

a .30/.30 and just random shoot the blacks and talked about

how they would like to send the blacks and the Mexicans back

from where they come from and talked about President Clinton

and Hillary Clinton and about the government funding money for

the, for the people that can't afford housing and stuff and

. . . how their tax paying goes to keep the black people up

and stuff like that."

Sechrist testified that she was "scared" as a result of

the rally. She stated: "I was scared our home would get

burned or something would happen to it. We've got two . . .

kids and I was afraid that something would happen to them."

27
In response to a question by defendant's counsel, Sechrist

testified: "I think they were trying to scare me."

B.

Jonathan Stephen O'Mara was indicted by a grand jury in

the City of Virginia Beach for attempting to burn a cross with

the intent of intimidating a person or group of persons in

violation of Code § 18.2-423 and conspiracy to burn a cross in

violation of Code § 18.2-423. O'Mara entered a guilty plea

that reserved his right to file an appeal challenging the

constitutionality of Code § 18.2-423.

The court fixed O'Mara's punishment at incarceration in

the jail for a term of 90 days and imposed a fine of $2,500 on

each of the charges. O'Mara appealed the judgment to the

Court of Appeals, which affirmed his convictions. O'Mara v.

Commonwealth, 33 Va. App. 525, 535 S.E.2d 175 (2000).

O'Mara entered into a stipulation of facts with the

Commonwealth, which was made a part of the record in the

circuit court. The stipulation states: "On May 2, 1998,

David Targee had approximately fifteen individuals, including

Jonathan O'Mara and Richard Elliott, at his residence in

Virginia Beach. They were all consuming alcohol. Elliott

complained to Targee and O'Mara about his neighbor and about

how he wanted to 'get back' at him. It was suggested (not by

O'Mara) that they burn a cross in Elliott's neighbor's yard.

28
O'Mara and Targee agreed, and they all went to Targee's garage

where a cross was built. They all got in Targee's truck and

drove to Munden Point Road in Virginia Beach. Targee was

driving, with O'Mara in the front passenger seat and Elliott

in the back seat. Once there, Elliott handed the cross to

O'Mara, who also grabbed a can of lighter fluid and went

outside and placed the cross in the yard of Elliott's

neighbor. He then poured lighter fluid on the cross, set it

on fire, and ran back to the car. Targee drove them back to

his house. The next morning, Elliott's neighbor, James

Jubilee, came out of his house and observed the partially

burned cross in his yard. He broke the cross and placed [it]

in the garage. He later called the police."

C.

A grand jury in the City of Virginia Beach indicted

Richard J. Elliott for attempting to burn a cross on the

property of James S. Jubilee with the intent of intimidating

any person or group of persons in violation of Code § 18.2-423

and conspiracy to burn a cross in violation of Code § 18.2-

423. At the conclusion of a trial, the jury found Elliott

guilty of attempted cross burning with the intent to

intimidate and fixed his punishment at 90 days incarceration

in jail and a fine of $2,500. Elliott appealed the circuit

29
court's judgment to the Court of Appeals, which affirmed his

conviction. See O'Mara, 33 Va. App. 525, 535 S.E.2d 175.

The following evidence was adduced at the trial. James

Jubilee resided at 2044 Munden Point Road in Virginia Beach.

One day, Mr. Jubilee told his next door neighbor, Mrs.

Elliott, that he was concerned because persons were

discharging firearms in her backyard. Mrs. Elliott responded

that her husband maintained a firing range in the rear of her

yard.

On May 2, 1998, David Targee had a party at his home

where he entertained Jonathan O'Mara, Richard Elliott, and

others. Richard Elliott, who had consumed alcoholic

beverages, mentioned that "his neighbors were complaining

about him shooting in his backyard . . . . He wanted to get

back at them for doing it."

Later that evening, Targee, Elliott, and O'Mara went to

Targee's parents' garage and constructed a wooden cross.

After they had constructed the cross, they traveled by car to

Mr. Jubilee's home where O'Mara placed the cross in the yard

and ignited it. The next morning between 8:15 and 8:30, Mr.

Jubilee saw the cross, which contained "burn spots." He

picked it up and broke it.

Jennifer Luning, O'Mara's former "girlfriend," testified

that O'Mara admitted that he, Targee, and Richard Elliott had

30
burned the cross. "He had said that before they actually went

out and did it that there was a conversation taking place

about Richard had been complaining or the neighbors had been

complaining about shooting [guns] in the backyard."

Edwin Coyner, a fire investigator for the City of

Virginia Beach, testified that he interviewed Targee several

times. Targee informed Coyner that "Richard Elliott had

complained about his neighbors because the neighbors had

complained about him shooting in the backyard."

II.

A.

The First Amendment of the Constitution of the United

States provides in part: "Congress shall make no law . . .

abridging the freedom of speech." Article I, § 12 of the

Constitution of Virginia states:

"That the freedoms of speech and of the press are
among the great bulwarks of liberty, and can never
be restrained except by despotic governments; that
any citizen may freely speak, write, and publish his
sentiments on all subjects, being responsible for
the abuse of that right; that the General Assembly
shall not pass any law abridging the freedom of
speech or of the press, nor the right of the people
peaceably to assemble, and to petition the
government for the redress of grievances."

The Fourteenth Amendment prohibits state action in

violation of the First Amendment. The freedom of speech

guaranteed by Article I, § 12 of the Constitution of Virginia

31
is co-extensive with the protections guaranteed by the First

Amendment of the Constitution of the United States.

Code § 18.2-423 states:

"It shall be unlawful for any person or
persons, with the intent of intimidating any person
or group of persons, to burn, or cause to be burned,
a cross on the property of another, a highway or
other public place. Any person who shall violate
any provision of this section shall be guilty of a
Class 6 felony.
"Any such burning of a cross shall be prima
facie evidence of an intent to intimidate a person
or group of persons."

B.

We have held, since the birth of this Commonwealth, that

"the judiciary may and ought to adjudge a law unconstitutional

and void, if it be plainly repugnant to the letter of the

Constitution, or the fundamental principles thereof." Kamper

v. Hawkins, 3 Va. (1 Va. Cas.) 20, 40 (1793). However,

clearly engrained within our jurisprudence is the principle

that this Court

"can declare an act of the general assembly void
only when such act clearly and plainly violates the
[C]onstitution, and in such manner as to leave no
doubt or hesitation on our minds.
"This rule has been repeatedly declared by this
court.

. . . .

The presumption always is that the legislature
has judged correctly of its constitutional powers,
and the contrary must be clearly demonstrated before
a co-ordinate branch of the government can be called

32
 upon to interfere between the people and their
immediate representatives."

Commonwealth v. Moore, 66 Va. (25 Gratt.) 951, 953 (1875).

Indeed, we have repeatedly held that "[e]very act of the

legislature is presumed to be constitutional, and the courts

are powerless to declare an act invalid, except where it

appears beyond doubt that it contravenes some provision of the

State or Federal Constitution. If we doubt we must sustain

its constitutionality." Tobacco Growers Co-Operative Assoc.

v. Danville Warehouse Co., 144 Va. 456, 469, 132 S.E. 482, 486

(1926). We restated this fundamental principle in Harrison v.

Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959):

"When the constitutionality of an act is challenged,
a heavy burden of proof is thrust upon the party
making the challenge. All laws are presumed to be
constitutional and this presumption is one of the
strongest known to the law. As we said in Almond v.
Day, 199 Va. 1, 6, 97 S.E.2d 824[, 828 (1957)]:
'. . . It is only where an act is plainly repugnant
to some constitutional provision that the courts can
declare it null and void. If there be a reasonable
doubt whether the act violates the fundamental law,
that doubt must be resolved in favor of the act.' "

Accord Jefferson Green Unit Owners Assoc., Inc. v. Gwinn, 262

Va. 449, 459, 551 S.E.2d 339, 344 (2001); Motley v. Virginia

State Bar, 260 Va. 243, 247, 536 S.E.2d 97, 99 (2000); Finn v.

Virginia Retirement System, 259 Va. 144, 153, 524 S.E.2d 125,

130 (2000); Pulliam v. Coastal Emergency Services, 257 Va. 1,

9, 509 S.E.2d 307, 311 (1999); Mumpower v. Housing Authority,

33
176 Va. 426, 443, 11 S.E.2d 732, 738 (1940); Antoni v. Wright,

63 Va. (22 Gratt.) 833, 882 (1872); Auditor of Public Accounts

v. Graham, 5 Va. (1 Call) 475, 476 (1798). For some

inexplicable reason, the majority ignores this fundamental

principle.

C.

Black, O'Mara, and Elliott (the defendants), relying

principally upon R.A.V. v. City of St. Paul, 505 U.S. 377

(1992), argue that Code § 18.2-423 violates their right to

freedom of speech guaranteed by the First Amendment to the

Constitution of the United States and Article I, § 12 of the

Constitution of Virginia and that the Court of Appeals erred

by holding that the statute comported with these

constitutional provisions. I disagree with the defendants.

Initially, I observe that Code § 18.2-423, by its express

terms, does not proscribe every act of burning a cross.

Rather, Code § 18.2-423 only proscribes the act of burning a

cross when such act is performed "with the intent of

intimidating any person or group of persons" and the act is

committed "on the property of another, a highway or other

public place." In the context of our criminal statutes,

specifically Code § 18.2-61, we have defined intimidation as

acts which put the victim "in fear of bodily harm. Such fear

must arise from the willful conduct of the accused, rather

34
than from some mere temperamental timidity of the victim;

however, the fear of the victim need not be so great as to

result in terror, panic, or hysteria." Sutton v.

Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 669 (1985).

Thus, applying the clear and unambiguous language in Code

§ 18.2-423 in conjunction with our established definition of

intimidation, which the majority ignores, I conclude that Code

§ 18.2-423 only proscribes conduct which constitutes "true

threats." And, I note that the United States Supreme Court,

in Watts v. United States, 394 U.S. 705, 707 (1969), approved

the facial constitutionality of a federal criminal statute

that prohibited someone from threatening the life of the

President of the United States. It is well established that

true threats of violence can be proscribed by statute without

infringing upon the First Amendment.

Madsen v. Women's Health Center, Inc., 512 U.S. 753, 774

(1994); Nat'l Organization for Women, Inc. v. Scheidler, ___

F.3d ___, ___ (7th Cir. 2001); Bauer v. Sampson, 261 F.3d 775,

782 (9th Cir. 2001); United States v. Rahman, 189 F.3d 88, 115

(2nd Cir.), cert. denied, sub nom. Nosair v. United States,

528 U.S. 982 (1999); United States v. Francis, 164 F.3d 120,

122-23 (2nd Cir. 1999); United States v. J.H.H., 22 F.3d 821,

825 (8th Cir. 1994). However, I must continue this inquiry

regarding the constitutionality of Code § 18.2-423 because in

35
R.A.V., supra, the Supreme Court held that the First Amendment

imposes certain limitations upon the regulation of speech and

expressive conduct, including true threats.

In R.A.V., the Supreme Court considered whether an

ordinance was facially invalid under the First Amendment. In

R.A.V., the defendant, along with several other teenagers,

made a wooden cross and burned it in a yard owned by a black

family. The defendant was convicted of violating the

following ordinance:

"Whoever places on public or private property a
symbol, object, appellation, characterization or
graffiti, including, but not limited to, a burning
cross or Nazi swastika, which one knows or has
reasonable grounds to know arouses anger, alarm or
resentment in others on the basis of race, color,
creed, religion or gender commits disorderly conduct
and shall be guilty of a misdemeanor."

The Supreme Court held that the ordinance was facially

unconstitutional because it prohibited otherwise permitted

speech solely on the basis of the content of the speech, even

though the Minnesota Supreme Court had concluded that the

ordinance only prohibited unprotected "fighting words."

R.A.V., 505 U.S. at 379-81.

The Supreme Court observed, however, that certain "areas

of speech can, consistently with the First Amendment, be

regulated because of their constitutionally proscribable

content (obscenity, defamation, etc.) – not that they are

36
categories of speech entirely invisible to the Constitution,

so that they may be made the vehicles for content

discrimination unrelated to their distinctively proscribable

content. Thus, the government may proscribe libel; but it may

not make the further content discrimination of proscribing

only libel critical of the government." Id. at 383-84.

The Supreme Court explained:

"When the basis for the content discrimination
consists entirely of the very reason the entire
class of speech at issue is proscribable, no
significant danger of idea or viewpoint
discrimination exists. Such a reason, having been
adjudged neutral enough to support exclusion of the
entire class of speech from First Amendment
protection, is also neutral enough to form the basis
of distinction within the class. To illustrate: a
State might choose to prohibit only that obscenity
which is the most patently offensive in its
prurience – i.e., that which involves the most
lascivious displays of sexual activity. But it may
not prohibit, for example, only that obscenity which
includes offensive political messages. See Kucharek
v. Hanaway, 902 F.2d 513, 517 (7th Cir. 1990), cert.
denied, 498 U.S. 1041 (1991). And the Federal
Government can criminalize only those threats of
violence that are directed against the President,
see 18 U.S.C. § 871 – since the reasons why threats
of violence are outside the First Amendment
(protecting individuals from the fear of violence,
from the disruption that fear engenders, and from
the possibility that the threatened violence will
occur) have special force when applied to the person
of the President. See Watts v. United States, 394
U.S. 705, 707 (1969). . . . But the Federal
Government may not criminalize only those threats
against the President that mention his policy on aid
to inner cities. And to take a final example . . .
a State may choose to regulate price advertising in
one industry, but not in others, because the risk of
fraud . . . is in its view greater there. . . . But

37
 a State may not prohibit only that commercial
advertising that depicts men in a demeaning
fashion."

R.A.V., 505 U.S. at 388-89.

The Supreme Court also articulated a second basis which

would permit some degree of content-based discrimination.

"Another valid basis for according differential
treatment to even a content-defined subclass of
proscribable speech is that the subclass happens to
be associated with particular 'secondary effects' of
the speech, so that the regulation is 'justified
without reference to the content of the . . .
speech.' Renton v. Playtime Theatres, Inc., 475
U.S. 41, 48 (1986) . . . . A State could, for
example, permit all obscene live performances except
those involving minors. Moreover, since words can
in some circumstances violate laws directed not
against speech, but against conduct . . . a
particular content-based subcategory of a
proscribable class of speech can be swept up
incidentally within the reach of a statute directed
at conduct, rather than speech. . . . Where the
government does not target conduct on the basis of
its expressive content, acts are not shielded from
regulation merely because they express a
discriminatory idea or philosophy.
"These bases for distinction refute the
proposition that the selectivity of the restriction
is 'even arguably "conditioned upon the sovereign's
agreement with what a speaker may intend to say." '
Metromedia, Inc. v. San Diego, 453 U.S. 490, 555
(1981) . . . . There may be other such bases as
well. Indeed, to validate such selectivity (where
totally proscribable speech is at issue), it may not
even be necessary to identify any particular
'neutral' basis, so long as the nature of the
content discrimination is such that there is no
realistic possibility that official suppression of
ideas is afoot. . . . Save for that limitation, the
regulation of 'fighting words,' like the regulation
of noisy speech, may address some offensive
instances and leave other, equally offensive,
instances alone."

38
R.A.V., 505 U.S. at 389-90.

In invalidating the City of St. Paul's ordinance, the

Supreme Court stated that

"[a]lthough the phrase in the ordinance 'arouses
anger, alarm or resentment in others,' has been
limited by the Minnesota Supreme Court's
construction to reach only those symbols or displays
that amount to 'fighting words,' the remaining,
unmodified terms make clear that the ordinance
applies only to 'fighting words' that insult, or
provoke violence, 'on the basis of race, color,
creed, religion or gender.' Displays containing
abusive invective, no matter how vicious or severe,
are permissible unless they are addressed to one of
the specified disfavored topics. Those 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 – are not covered. The First
Amendment does not permit St. Paul to impose special
prohibitions on those speakers who express views on
disfavored subjects."

Id. at 391.

Continuing, the Supreme Court explained:

"What we have here, it must be emphasized, is
not a prohibition of fighting words that are
directed at certain persons or groups (which would
be facially valid if it met the requirements of the
Equal Protection Clause); but rather, a prohibition
of fighting words that contain . . . messages of
'bias-motivated' hatred and, in particular, as
applied to this case, messages 'based on virulent
notions of racial supremacy.' "

Id. at 392 (citation omitted).

Contrary to the majority's opinion, Code § 18.2-423 does

not suffer from the defects contained in the ordinance at

39
issue in R.A.V. As previously stated, Code § 18.2-423 does

not prohibit every act of burning of a cross. Rather, the

statute only prohibits the burning of a cross when such act is

performed with the intent to intimidate. And, consistent with

our jurisprudence, the word "intimidate" means to place one in

fear of bodily harm. Unlike the City of St. Paul's ordinance,

which targeted cross burning on the basis of race, color,

creed, religion or gender, Code § 18.2-423 does not contain

those limitations. The conduct proscribed in the Virginia

statute applies to any individual who burns a cross for any

reason provided the cross is burned with the intent to

intimidate. That point is best illustrated in O'Mara and

Elliott because these defendants burned a cross because they

were angry that their neighbor had complained about the

presence of a firearm shooting range in the Elliotts' yard,

not because of any racial animus.

Additionally, the Supreme Court pointed out in R.A.V.

that a valid basis for according differential treatment even

to a content-defined subclass of proscribable speech is when

the subclass happens to be associated with particular

secondary effects of the speech so that the regulation is

justified without reference to the content of the speech. The

ordinance that the Supreme Court invalidated in R.A.V.

targeted any cross burning that "one knows or has reasonable

40
grounds to know arouses anger, alarm or resentment." 505 U.S.

at 380.

By contrast, from its clear and unambiguous language, the

purpose of the Virginia statute, Code § 18.2-423, is not to

suppress repugnant ideas, but rather to proscribe physical

acts intended to inflict bodily harm upon the victims of such

acts. Simply stated, the Virginia statute proscribes acts of

intimidation, but it does not prohibit persons from expressing

their views, irrespective of how repugnant or offensive those

views may be to others. The Virginia statute does not

prohibit the burning of a cross so long as that act is

committed without an intent to place a person in fear of

bodily harm. See also In re Steven S., 31 Cal. Rptr. 2d 644,

646, 647-48 (Cal. Ct. App. 1994) (statute proscribing the act

of "burn[ing] a cross on the private property of another for

the purpose of terrorizing the owner or occupant or in

reckless disregard of that risk" is not impermissible content-

based prohibition on speech within the meaning of the First

Amendment); State v. Talley, 858 P.2d 217, 220, 225-27 (Wash.

1993) (statute proscribing cross burning that places another

person in reasonable fear of harm to his person or property

does not violate the First Amendment).

I recognize that the Supreme Court of South Carolina, in

State v. Ramsey, 430 S.E.2d 511 (S.C. 1993), invalidated a

41
statute that prohibited the burning of a cross on the basis

that it contravened the First Amendment. The South Carolina

statute, however, was significantly different from the

Virginia statute. The South Carolina statute stated: "It

shall be unlawful for any person to place or cause to be

placed in a public place in the State a burning or flaming

cross or any manner of exhibit in which a burning or flaming

cross, real or simulated, is the whole or a part . . . without

first obtaining written permission of the owner or occupier of

the premises so to do." Id. at 514.

Unlike Code § 18.2-423, which proscribes the burning of a

cross with the intent of intimidating and, thus, prohibits

real threats, the South Carolina statute contained no similar

limitation. The Supreme Court of South Carolina concluded

that its statute was enacted "in order to protect individuals

and society as a whole from the reprehensible messages often

sought to be symbolicly expressed by a burning cross."

Ramsey, 430 S.E.2d at 514. As I have already explained,

Virginia's statute does not suffer from this constitutional

defect. Thus, the differences between the Virginia statute

and the South Carolina statute are real and significant. Yet,

the majority ignores the differences between Code § 18.2-423

and the South Carolina statute.

42
 I also observe that the Maryland Court of Appeals, in

State v. Sheldon, 629 A.2d 753, 755 (Md. 1993), held that a

Maryland statute violated the First Amendment because it

required those who wished to burn crosses or religious symbols

to "secure the permission of the property owner where the

burning is to occur and [to] notify the local fire department

before engaging in the burning." That statute stated in part:

"It shall be unlawful for any person or persons
to burn or cause to be burned any cross or other
religious symbol upon any private or public property
within this State without the express consent of the
owner of such property and without first giving
notice to the fire department which services the
area in which such burning is to take place."

Id. at 755. Unlike the Virginia statute, the Maryland statute

did not proscribe burning a cross with the intent of

intimidating, but rather, is content-based regulation of

expression. The Maryland Supreme Court found "no way to

justify the cross burning statute without referring to the

substance of speech it regulates, because the statute does not

protect property owners or the community from unwanted fires

any more than the law already protected those groups before

the statute's enactment." Id. at 755. Yet, the majority

ignores these significant distinctions.

III.

Defendant Black argues that Code § 18.2-423 "does not

incorporate the requirements that the speech at issue be

43
directed to the incitement of imminent lawless action, and

likely to produce such action, and as such is unconstitutional

under the standard of Brandenburg v. Ohio, and the Brandenburg

standard was not satisfied here." I disagree with the

defendant. The Supreme Court's decision in Brandenburg v.

Ohio, 395 U.S. 444 (1969) simply has no application here.

The Supreme Court considered the following facts in

Brandenburg. Brandenburg, "a leader of a Ku Klux Klan group,

was convicted under the Ohio Criminal Syndicalism statute for

'advocat[ing] . . . the duty, necessity, or propriety of

crime, sabotage, violence, or unlawful methods of terrorism as

a means of accomplishing industrial or political reform' and

for 'voluntarily assembl[ing] with any society, group, or

assemblage of persons formed to teach or advocate the

doctrines of criminal syndicalism.' " Id. at 444-45

(alteration in original).

Brandenburg placed a telephone call to a reporter on the

staff of a television station and invited the reporter to

attend a Ku Klux Klan rally that would be held at a certain

farm. "[T]he reporter and a cameraman attended the meeting

and filmed the events. Portions of the films were later

broadcast on the local station and on a national network."

Id. at 445. The prosecutor relied upon the films and

testimony identifying the defendant as the person who

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communicated with the reporter and who spoke at the rally.

The prosecutor "also introduced into evidence several articles

appearing in the film, including a pistol, a rifle, a shotgun,

ammunition, a Bible, and a red hood worn by the speaker in the

films." The only persons present at the rally other than the

participants were the newsmen who made the film. Id. at 445-

46.

The Supreme Court pointed out that "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." Id. at 447. Continuing, the U.S.

Supreme Court stated that

"the mere abstract teaching . . . of the moral
propriety or even moral necessity for a resort to
force and violence, is not the same as preparing a
group for violent action and steeling it to such
action. . . . A statute which fails to draw this
distinction impermissibly intrudes upon the freedoms
guaranteed by the First and Fourteenth Amendments.
It sweeps within its condemnation speech which our
Constitution has immunized from governmental
control."

Id. at 448.

The Supreme Court invalidated the Ohio Criminal

Syndicalism Act because neither the indictment nor the trial

court's instructions to the jury "refined the statute's bald

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definition of the crime in terms of mere advocacy not

distinguished from incitement to imminent lawless action."

Id. at 448-49.

In stark contrast to the Supreme Court's decision in

Brandenburg, we are not concerned here with abstract teaching

regarding the moral propriety or even moral necessity of

violence as a means for accomplishing political reform.

Rather, the subject of this case is Code § 18.2-423, a statute

which proscribes the burning of a cross with the intent to

intimidate, which we have held means to place the victim in

fear of bodily harm. And, I note that the jury at defendant

Black's trial was specifically instructed that

"[i]ntimidate, as used in the term 'with the
intent to intimidate' means a motivation to
intentionally put a person or group of persons in
fear of bodily harm. Such fear must arise from the
willful conduct of the accused, rather than from
some mere temperamental timidity of the victim;
however, the fear of the victim need not be so great
as to result in terror, panic, or hysteria."

I have already observed, in response to defendant's

counsel's questions at trial, Rebecca Sechrist testified that

she was afraid that her "home would get burned or something

would happen to it." Moreover, defendant Black has never

challenged the sufficiency of the evidence to support the

jury's finding beyond a reasonable doubt that his acts placed

Sechrist in fear of bodily harm.

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 IV.

Defendant Black argues that "[t]he provision of Code

§ 18.2-423 providing that the burning of a cross shall be

prima facie evidence of an intent to intimidate permits a jury

to find intimidation from the mere act of cross-burning alone,

in contravention of the First Amendment." I disagree.

Code § 18.2-423 creates a statutory inference, and we

have stated that an "inference merely applies to the rational

potency or probative value of an evidentiary fact to which the

fact finder may attach whatever force or weight it deems

best." Martin v. Phillips, 235 Va. 523, 526 n.1, 369 S.E.2d

397, 399 n.1 (1988). Additionally, "inferences are never

allowed to stand against ascertained and established facts."

Ragland v. Rutledge, 234 Va. 216, 219, 361 S.E.2d 133, 135

(1987) (citing Southern Ry. v. Mays, 192 Va. 68, 76, 63 S.E.2d

720, 725, cert. denied, 342 U.S. 836 (1951)).

This statutory inference is a factor that the jury may

accept or reject in determining whether a defendant burned a

cross with the intent to intimidate a victim. This inference

alone, however, is clearly insufficient to establish beyond a

reasonable doubt that a defendant burned a cross with the

intent to intimidate. And, this statutory inference does not,

and cannot, absolve the Commonwealth of its burden to prove

each element of Code § 18.2-423 beyond a reasonable doubt.

47
 Moreover, the jury in Black's trial was specifically

instructed as follows:

"INSTRUCTION NO. 6

"THE COURT INSTRUCTS THE JURY THAT:

"The burden is upon the Commonwealth to prove
by the evidence beyond a reasonable doubt every
material and necessary element of the offense
charged. It is not sufficient that the jury believe
the defendant's guilt probable, or more probable
than his innocence. Suspicion or probability of
guilt, however strong, will not authorize a
conviction. The evidence must prove his guilt
beyond a reasonable doubt. The jury shall not
speculate or go outside the evidence to consider
what they think might have taken place, but you are
to confine your consideration to the evidence
introduced by the Commonwealth and the defense and
unless you believe that the guilt of Barry Elton
Black has been proved beyond a reasonable doubt as
to every material and necessary element of the
offense charged against him, then you shall find him
not guilty."

. . . .

"INSTRUCTION NO. 8

"THE COURT INSTRUCTS THE JURY THAT:

"The defendant is charged with the crime of
placing a burning cross in a public place with the
intent to intimidate. The Commonwealth must prove
beyond a reasonable doubt each of the following
elements of that crime:
"(1) That the defendant burned or caused to be
burned a cross in a public place; and
"(2) That he did so with the intent to
intimidate any person or group of persons.
"If you find from the evidence that the
Commonwealth has proved beyond a reasonable doubt
each of the above elements of the offense as
charged, then you shall find the defendant guilty,

48
 but you shall not fix the punishment until your
verdict has been returned and further evidence has
been heard by you.
"If you find that the Commonwealth has failed
to prove beyond a reasonable doubt either or both of
the elements of the offense, then you shall find the
defendant not guilty."

As these jury instructions indicate, the Commonwealth was

required to prove each and every element of its case,

including the requirement of intimidation, beyond a reasonable

doubt.

V.

For the foregoing reasons, I would affirm the judgments

of the Court of Appeals.

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