22171793.01

No. 01-1107

IN THESUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF VIRGINIA,Petitioner,

vs.BARRY ELTON BLACK, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TOTHE SUPREME COURT OF VIRGINIA

BRIEF AMICI CURIAE OF ANTI-DEFAMATIONLEAGUE, PEOPLE FOR THE AMERICAN WAYFOUNDATION, HUMAN RIGHTS CAMPAIGN,

NATIONAL ASIAN PACIFIC AMERICAN LEGALCONSORTIUM, NATIONAL CONFERENCE FORCOMMUNITY AND JUSTICE, ASIAN AMERICAN

LEGAL DEFENSE AND EDUCATION FUND,HADASSAH, THE WOMEN’S ZIONIST

ORGANIZATION OF AMERICA, INC., AMERICANJEWISH COMMITTEE, JEWISH COUNCIL FORPUBLIC AFFAIRS, COMMISSION OF SOCIAL

ACTION OF REFORM JUDAISM, AMERICAN-ARABANTI-DISCRIMINATION COMMITTEE, NATIONAL

GAY AND LESBIAN TASK FORCE, NATIONALCOUNCIL OF JEWISH WOMEN, INC., AND

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDERLAW OF THE BOSTON BAR ASSOCIATION IN

SUPPORT OF NEITHER PARTY

22171793.01

TABLE OF CONTENTS

Table of Authorities ................................................... iv

INTEREST OF AMICI ..................................................2

Anti-Defamation League........................................2

People for the American Way Foundation ........................................................3

Human Rights Campaign ......................................4

National Asian Pacific American Legal Consortium...............................................4

The National Conference for Community and Justice .....................................5

Asian American Legal Defense and Education Fund .................................................5

Hadassah, the Women’s Zionist Organization of America, Inc. .............................6

American Jewish Committee .................................7

Jewish Council for Public Affairs ...........................7

Commission of Social Action of Reform Judaism.............................................7

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American-Arab Anti-Discrimination Committee..........................................................8

National Gay and Lesbian Task Force ...................9

National Council of Jewish Women, Inc. .....................................................10

Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association.......................................................10

STATEMENT.............................................................12

SUMMARY OF ARGUMENT ......................................13

ARGUMENT — ASSAULTIVE AND UNPROTECTEDSPEECH MAY BE CONSTITUTIONALLYPROHIBITED AND PUNISHED UNDERSTATUTES SUCH AS THE VIRGINIA STATUTE ........15

A. THE STATUTE PUNISHESASSAULTIVE SPEECH DESIGNED TOINDUCE FEAR IN OTHERS, NOT ANYPARTICULAR VIEWPOINT OR MESSAGE ............15

B. THE VIRGINIA STATUTE IS NOTINVALID IN PROSCRIBING APARTICULAR FORM OFASSAULTIVE SPEECH ........................................17

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C. CROSS BURNING WITH THEINTENT TO INTIMIDATE ATARGETED INDIVIDUAL ISEXPRESSIVE CONDUCT OUTSIDETHE SCOPE OF FIRST AMENDMENTPROTECTION. .....................................................21

D. THE COURT’S HOLDING IN R.A.V.DOES NOT CONTROL THIS CASE.......................22

CONCLUSION...........................................................28

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iv

TABLE OF AUTHORITIES

FEDERAL CASES

Ashcroft v. A.C.L.U., 122 S. Ct. 1700 (2002) ...................................................... 3

California Motor Transport Co. v.Trucking Unlimited,404 U.S. 508 (1972) ........................................ 20

Capitol Square Review & AdvisoryBoard v. Pinette,515 U.S. 753 (1995) ........................................ 19

Chaplinsky v. New Hampshire,315 U.S. 568 (1942) ........................................ 21

Cohen v. California,403 U.S. 15 (1971) .......................................... 21

Lewis v. New Orleans,415 U.S. 130 (1974) ........................................ 21

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

Roberts v. United States Jaycees,468 U.S. 609 (1984) ........................................ 22

Texas v. Johnson,491 U.S. 397 (1989) .................................. 18, 25

United States v. Eichman, 496 U.S. 310 (1990) .......................................... 3

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v

United States v. Lee,935 F.2d 952 (8th Cir. 1991) ........................... 20

United States v. Skillman,922 F.2d 1370 (9th Cir. 1991).......................... 19

Wisconsin v. Mitchell,508 U.S. 476 (1993) .......................................... 3

STATE CASES

Black v. Commonwealth,267 Va. 764 (2001) ................................... passim

STATE CODES

Virginia Code § 18.2-423 ............................... passim

BOOKS AND TREATISES

Frederick M. Lawrence, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW (Harvard 1999)........................................... 22

22171793.01

No. 01-1107

IN THESUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF VIRGINIA,Petitioner,

vs.BARRY ELTON BLACK, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TOTHE SUPREME COURT OF VIRGINIA

BRIEF AMICI CURIAE OF ANTI-DEFAMATIONLEAGUE, PEOPLE FOR THE AMERICAN WAYFOUNDATION, HUMAN RIGHTS CAMPAIGN,

NATIONAL ASIAN PACIFIC AMERICAN LEGALCONSORTIUM, NATIONAL CONFERENCE FORCOMMUNITY AND JUSTICE, ASIAN AMERICAN

LEGAL DEFENSE AND EDUCATION FUND,HADASSAH, THE WOMEN’S ZIONIST

ORGANIZATION OF AMERICA, INC., AMERICANJEWISH COMMITTEE, JEWISH COUNCIL FORPUBLIC AFFAIRS, COMMISSION OF SOCIAL

ACTION OF REFORM JUDAISM, AMERICAN-ARABANTI-DISCRIMINATION COMMITTEE, NATIONAL

GAY AND LESBIAN TASK FORCE, NATIONALCOUNCIL OF JEWISH WOMEN, INC., AND

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDERLAW OF THE BOSTON BAR ASSOCIATION IN

SUPPORT OF NEITHER PARTY

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2

INTEREST OF AMICI

Amici curiae listed in the caption hereof submitthis brief in support of neither petitioner norrespondents.1

Anti-Defamation League

Organized in 1913 to advance good will andmutual understanding among Americans of all creedsand races and to combat racial, ethnic, and religiousprejudice in the United States, the Anti-DefamationLeague (“ADL”) is today one of the world’s leadingorganizations fighting hatred, bigotry, discrimination,and anti-Semitism. The impetus for ADL’s foundingwas a hate crime—the lynching of a Jewish man, LeoFrank, in Atlanta, after his unjust conviction formurder and the commutation of his death sentence tolife imprisonment—and ADL’s core commitment is tothe eradication of hate. Yet, as a civil rights advocacyorganization, ADL is equally committed to thepreservation of our democratic freedoms and to theconstitutional rights that gird those freedoms. ADL isparticularly sensitive to First Amendment rights ofspeech, belief, and conscience, believing that such 1 Pursuant to Rule 37.3(a) of the Rules of this Court, amicihave obtained and lodge herewith the written consents ofthe parties to the submission of this brief. Pursuant to Rule37.6, amici affirm that no counsel for a party authored thisbrief in whole or in part, and that no person, other thanamici and their counsel, made a monetary contribution toits preparation or submission.

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freedoms are essential to our other freedoms asAmericans, and that they serve as foundation stonesof the fight against hate and bigotry. The competinginterests at stake here are thus of keen interest to ADLand central to its mission.2

People for the American Way Foundation

People For the American Way Foundation(“People For”) is a non partisan, education-orientedcitizens’ organization established to promote andprotect civil and constitutional rights, including FirstAmendment freedoms. Founded in 1980 by religious,civic, and educational leaders devoted to our nation’sheritage of tolerance, pluralism, and liberty, theorganization now has over 500,000 members andsupporters nationwide. People For has a broadconcern for protecting First Amendment rights, andhas submitted amicus briefs to this Court in supportof free expression in a number of recent cases, such asAshcroft v. A.C.L.U., 122 S. Ct. 1700 (2002), andUnited States v. Eichman, 496 U.S. 310 (1990). At thesame time, People For is devoted to promotingreligious and racial tolerance and to combatingdiscrimination and prejudice, a goal which can beaccomplished consistent with the First Amendment.People For accordingly believes that it is important

2 ADL has participated in other relevant cases to reachthe Court. See ADL briefs amicus curiae filed in Wisconsinv. Mitchell, 508 U.S. 476 (1993), and R.A.V. v. City of St.Paul, 505 U.S. 377 (1992).

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that the Court’s decision in this case makes clear,consistent with the First Amendment, that a state mayproscribe conduct such as cross-burning when it isintended and likely to instill fear and terror in others.

Human Rights Campaign

Human Rights Campaign (“HRC”) is the nation’slargest gay and lesbian civil rights organization, withover 450,000 members nationwide. HRC is devoted tofighting and ending discrimination on the basis ofsexual orientation, and to protecting the basic civiland human rights of gay, lesbian, and bisexualAmericans. To this end, HRC has provided federal andstate legislative, regulatory, and judicial advocacy, aswell as media and grass roots support on a range ofinitiatives affecting gay, lesbian, and bisexualindividuals who suffer discrimination or hate crimesbecause of their sexual orientation. HRC has a clearinterest in the prevention and punishment of thecriminal conduct at issue in this case.

National Asian Pacific American Legal Consortium

The National Asian Pacific American LegalConsortium (“NAPALC”) is a national non-profit, non-partisan organization whose mission is to advance thelegal and civil rights of Asian Pacific Americans.Collectively, NAPALC and its affiliates, the AsianAmerican Legal Defense and Education Fund, theAsian Law Caucus, and the Asian Pacific AmericanLegal Center of Southern California, have over 50years of experience in providing legal and public policyadvocacy, as well as community education, on

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discrimination issues affecting the communities theyserve. NAPALC is a leading national voice againstanti-Asian violence, and accordingly has a vitalinterest in the issues presented in this case.

The National Conference forCommunity and Justice

The National Conference for Community andJustice (“NCCJ”), founded in 1927 as The NationalConference of Christians and Jews, is a humanrelations organization dedicated to fighting bias,bigotry, and racism in America. NCCJ promotesunderstanding and respect among all races, religions,and cultures through advocacy, conflict resolution,and education. Uniquely positioned to enhancecommunity leadership development programs in itsservice area with 61 offices in 34 states and theDistrict of Columbia, NCCJ has dedicated itself toempowering leaders to create institutional changedirected to the transformation of communities so thatthey may provide fuller opportunity to their citizensand so that they are more inclusive and more just.NCCJ is vitally interested in this case because of itscentral mission of fighting bigotry and racism inAmerica, and because of the significant ramificationsthat this case will have in our communities.

Asian American Legal Defense and Education Fund

The Asian American Legal Defense andEducation Fund (“AALDEF”), founded in 1974, is anon-profit organization based in New York City.AALDEF defends the civil rights of Asian Americans

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nationwide through the prosecution of lawsuits,through its legal advocacy, and through the publicdissemination, both in the communities it serves andmore broadly, of information respecting discriminationagainst Asian Americans. AALDEF has throughout itshistory been in the forefront of the campaign to endviolence against racial, national origin, and religiousgroups. Along with its affiliates, AALDEF annuallypublishes an audit of racial violence against AsianAmericans. Criminal laws that punish intentionalintimidation and serious threats are an importantweapon in the arsenal of a state’s responses to racialviolence, and AALDEF is accordingly interested in theissues in this case.

Hadassah, the Women’s ZionistOrganization of America, Inc.

Hadassah, the Women’s Zionist Organization ofAmerica, Inc. (“Hadassah”), founded in 1912, is thelargest women’s and the largest Jewish membershiporganization in the United States, with over 300,000members nationwide. In addition to Hadassah’smission of maintaining health care institutions inIsrael, Hadassah has a proud history of protecting therights of women and of the Jewish community in theUnited States. Crimes involving symbols of hatredsuch as burning crosses are an extreme manifestationof bigotry, and historically Jews and women alike havebeen targets of such crimes. Such crimes threaten theviability of our communities. While Hadassah isstrongly committed to the First Amendment’sguarantee of freedom of expression, Hadassah equallysupports laws that combat crimes of intimidation.

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American Jewish Committee

The American Jewish Committee (“AJC”), anational human relations organization with over115,000 members and supporters and 33 regionalchapters nationwide, was founded in 1906 to protectthe civil and religious rights of Jews. AJC hashistorically been a staunch defender of the FirstAmendment’s guarantees of freedom of expression. Atthe same time, AJC has been sensitive to theconstitutional limits of free speech and firmly believesthat purposeful intimidation and intentional threats ofviolence have no place in our society.

Jewish Council for Public Affairs

The Jewish Council for Public Affairs (“JCPA”) isthe coordinating body of 13 national and 122 localJewish community relations organizations. JCPA wasfounded in 1944 to safeguard the rights of Jewsthroughout the world and to protect, preserve, andpromote a just American society. JCPA holds thatcrimes based on hatred and intimidation areanathema to the fundamental democratic values uponwhich this nation is founded.

Commission of Social Action of Reform Judaism

The Commission of Social Action of ReformJudaism (“CSA”) is a joint instrumentality of the Unionof American Hebrew Congregations (“UAHC”) and theCentral Conference of American Rabbis (“CCAR”). The900 congregations of UAHC encompass 1.5 millionReform Jews; the membership of CCAR 1,800 Reformrabbis. CSA establishes policy for the Religious Action

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Center of Reform Judaism, established to advocate forsocial and political policy in keeping with Jewish lawand theology as understood by Reform Judaism.

Crimes such as those involved here hitparticularly close to home for the Jewish people. All ofus have watched in horror as acts of violence againstJews and Jewish institutions have, over the past year,again terrorized Europe and nations across the globe,creating an atmosphere of fear and intimidation. Lawswhich proscribe such crimes underscore, indeedstrengthen, our nation’s historic promise of liberty andjustice. Jewish ethics support the struggle to upholdsuch laws. Jews are taught that God created humansb’tselem elohim, in the Divine Image, and that we areall, therefore, deserving of equal treatment (Genesis1:27). Jews are commanded that “You may not standidly by when your neighbor’s blood is being shed”(Leviticus 19:16) and that “You shall not hate yourkinsfolk in your heart. . . . Love your fellow asyourself” (Leviticus 19:17-18). Because of theseprecepts, Judaism teaches the importance of toleranceand acceptance of others. And because of theimportance of these precepts CSA has a keen interestin this case.

American-Arab Anti-Discrimination Committee

The American-Arab Anti-DiscriminationCommittee (“ADC”) is the national association of ArabAmericans that works in every sphere of public life topromote and defend the interests of the Arab-American community. ADC is a grassroots civil rightsorganization welcoming people of all backgrounds,

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faiths, and ethnicity as members. Since its foundingin 1980 by former U. S. Senator James Abourezk, ithas grown into the largest non-sectarian, non-partisancivil rights organization in America dedicated toprotecting the civil rights of Americans of Arabdescent. ADC works with other civil rightsorganizations and coalitions on a multitude of issuesthat affect constitutional freedoms. With headquartersin Washington, D.C., ADC also has more than 80membership chapters nationwide. Through its LegalDepartment, ADC offers counseling, advocacy, andmediation, addressing hate crimes, employment andeducational discrimination, public accommodationdiscrimination, immigration, housing, freedom ofspeech, and other civil liberties.

ADC is committed to combating crimes of hatewhile at the same time protecting the constitutionalguarantees of expression. As the national voice of theArab-American community, ADC supports and joinsthe Anti-Defamation League and other amici insubmitting this brief, in the belief that freedom ofspeech and expression are equally as important to theAmerican way of life as freedom from hate, and fromracial, ethnic, and religious bigotry in our society.

National Gay and Lesbian Task Force

Founded in 1973, the National Gay and LesbianTask Force (“NGLTF”) works to eliminate prejudice,violence, and injustice against gay, lesbian, bisexual,and transgender people at the local, state, andnational level. As part of a broader social justicemovement for justice and equality, NGLTF strives to

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create a world that respects and celebrates thediversity of human expression and identity, where allmay fully participate in society. In its mission, NGLTFworks to curtail hate crimes in this country, butsimultaneously respects the key right of free speech.

National Council of Jewish Women, Inc.

The National Council of Jewish Women, Inc.(“NCJW”) is a volunteer organization, inspired byJewish values, that works through a program ofresearch, education, advocacy, and community serviceto improve the quality of life for women, children, andfamilies, and strives to ensure individual rights andfreedoms for all. Founded in 1893, NCJW has 90,000members, supporters, and volunteers in over 500communities nationwide. NCJW joins this brief inlight of its National Principle, which states that“Human rights and dignity are fundamental and mustbe guaranteed to all individuals,” and its NationalResolution supporting “The enactment andenforcement of laws and regulations that protect civilrights and individual liberties for all.”

Lawyers’ Committee for Civil Rights UnderLaw of the Boston Bar Association

The Lawyers’ Committee for Civil Rights UnderLaw of the Boston Bar Association (“Lawyers’Committee”) is a non-profit law office that provides freelegal services to victims of discrimination based onrace or national origin. We have been successful insome of Massachusetts’ most important civil rightscases, including school desegregation, housing

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discrimination, and voting rights cases. In 1982, theLawyers’ Committee created the Project to CombatRacial Violence to address the crisis of racial violencethat was engulfing Boston and surroundingcommunities. Twenty years later, we continue torepresent victims of racially motivated harassment,violence, and intimidation throughout the Boston area,and have participated as amicus curiae in numerouscases involving the interpretation of our state hatecrimes law. The Lawyers’ Committee has an interestin this matter because all victims of racial violence andharassment deserve aggressive enforcement of theirstate’s laws proscribing intimidation. Massachusettsdoes not have a specific cross burning statute,perhaps because the history of racism in New Englandhas manifested itself differently than that of otherstates. But we support the vigorous enforcement ofsuch laws in other states, and believe that statuteslike Virginia’s are consistent with the FirstAmendment.

* * *

All of the amici are uniquely situated to suggest,if not a resolution of the competing interests presentedby this case, at least a mode of analysis through whichan answer to such questions may ultimately bereached. As civil rights organizations, they each havewidely varying missions. Yet all nonetheless recognizethe paramount importance of protecting FirstAmendment privileges, even if the exercise of suchprivileges results in the expression of hateful ideas.But amici also recognize that expressive conduct canconstitute a crime when a symbol of hatred such as

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the burning cross is used to target others with theintent and likely effect of instilling in them fear andterror.

Amici believe that such crimes of intimidationcontinue to be a serious problem in our country, thatlegislatures should have the flexibility to punishexpressive conduct which has such an intimidatingintent and likely effect, and that in doing so they donot transgress First Amendment limitations. Amicithus submit this brief, in support of neither petitionernor respondents, to advance their conviction thatexpressive conduct may be proscribed and punished ifby its nature as “fighting words” it is outside the realmof protected speech, and if the criminal proscriptionrequires a mens rea element of a specific intent tointimidate or to threaten. A statute that meets theserequirements passes constitutional muster.

STATEMENT

Virginia Code § 18.2-423 provides, in pertinentpart, that:

It shall be unlawful for any person orpersons, with the intent of intimidatingany person or group of persons, to burn,or cause to be burned, a cross on theproperty of another, a highway or otherpublic place.

The statute also contains a presumption that “[a]nysuch burning of a cross shall be prima facie evidenceof an intent to intimidate . . . .” Respondents were

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convicted of violating § 18.2-423. Respondent Blackburned a cross at a rally of the Ku Klux Klanconducted on private property but within view of theproperty of others. A jury found him guilty, believingthat the evidence was sufficient to support therequirement of the statute that he intended tointimidate. Respondents O’Mara and Elliott burned across on the property of a neighbor, an African-American, in the night in retaliation for the neighbor’scomplaints about Elliott’s “shooting guns in thebackyard.” O’Mara pled guilty to attempted crossburning and conspiracy to commit cross burning,reserving his constitutional challenge, and his guiltyplea constitutes an admission that he intended tointimidate others. A jury found Elliott guilty ofattempted cross burning. As with Black, the juryfound that the evidence supported the requirementthat Elliott intended to intimidate his neighbor byburning a cross.

SUMMARY OF ARGUMENT

1. Government may constitutionally proscribeintimidation and threats, even if accomplished byspeech or expressive conduct. The essential FirstAmendment safeguard for such regulation is found inthe mens rea requirement of intent to bring about thedesired end of instilling fear or terror in targetedindividuals. In focusing on this element, the Virginiastatute is consistent with the First Amendment.

2. The Virginia statute is neutral in viewpoint.It seeks to accomplish the legitimate state goal ofproscription of intimidation without discrimination, by

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banning all cross-burning, so long as accompanied bythe required specific intent. It does not ban only thoseacts motivated by or which seek to express aparticular viewpoint.

3. That the Virginia statute singles out theburning of crosses for particular proscription does notinvalidate it. It is not generally necessary to prohibiteither all acts of intimidation or none in order to guardagainst government infringement on rights ofconscience, speech, and belief. Rather, it is sufficientif a state legislature has made a reasoned judgmentthat within the universe of threats, some are worsethan others.

4. The message of intimidating cross burning iswithin the class of expressive conduct of such slightsocial value as to permit of outright ban. This doctrineof “fighting words” outside First Amendment reachappropriately encompasses words that are intended toand have the likely effect of creating fear of injury inthe addressee. The burning of a cross with therequisite intent may be banned under this principle.

5. R.A.V. v. City of St. Paul, 505 U.S. 377(1992), does not contradict this conclusion. While thatcase dealt with cross burning, it did not address astatute that conditions proscription on the actor’sintent to intimidate others. Moreover, under the ruleenunciated in that case, Virginia had the power toregulate speech involving intimidating cross burningbecause it had the power to regulate the broader classof intimidating or threatening speech intended toinduce serious fear in others.

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ARGUMENT

ASSAULTIVE AND UNPROTECTED SPEECHMAY BE CONSTITUTIONALLY PROHIBITEDAND PUNISHED UNDER STATUTES SUCH

AS THE VIRGINIA STATUTE

The Virginia Supreme Court invalidated VirginiaCode § 18.2-423, asserting that “the selectivity of itsstatutory proscription is facially unconstitutionalbecause it prohibits otherwise permitted speech solelyon the basis of its content . . . .” Black v.Commonwealth, 267 Va. 764, 768 (2001). Themajority of that court felt that “[t]he Virginia crossburning statute is analytically indistinguishable fromthe ordinance found unconstitutional in R.A.V. (v. Cityof St. Paul).” Id. at 772. In so holding, the Virginiacourt ignored the assaultive nature of the expressiveconduct at issue and its consequent lack ofconstitutional protection.

A. The Statute Punishes Assaultive SpeechDesigned to Induce Fear in Others, Not AnyParticular Viewpoint or Message.

It is axiomatic that a state legislature, in theexercise of the state’s police power, may proscribeconduct harmful to others. It is equally axiomatic thatsuch proscribable conduct includes intimidation.Thus, expressive conduct or speech both intended andlikely to induce serious fear in others has long beenheld subject to criminal proscription. The Virginialegislature, as have the legislatures of other states withhistorical legacies of racism, bigotry, and hatred, chose

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to punish a particular form of assaultive speech orintimidating conduct—the burning of a cross. It didso, however, without reference to the content of thatexpressive conduct, defining the crime instead by theintent with which it is committed and only by thatintent. Cross burning per se is not prohibited by thestatute. What is prohibited is cross burning “with theintent of intimidating any person . . . .”

Under the scheme of § 18.2-423, it does notmatter what substantive message a defendantintended to convey by burning a cross. Whilechoosing a symbol that Americans uniformly view asemblematic of racial and religious hatred, thelegislature did not choose to punish the mereexpression of hatred. It rather chose to punishexpression only when it crosses the constitutional lineinto assaultive speech and is accompanied by theintent to instill serious fear in those exposed to themessage.

Section 18.2-423 is accordingly limited. Asnoted by the dissent below, “by its express terms, [it]does not proscribe every act of burning a cross.” Blackv. Commonwealth, 262 Va. at 787. Rather, it punishessuch conduct only when performed with the requisitemens rea—a specific intent to intimidate. As definedby the courts of Virginia, “intimidation” refers to “actswhich put the victim ‘in fear of bodily harm.’” Id.Mere offensiveness based on the listener’s personalcharacteristics is insufficient to constitute criminalintimidation. It is defined not by reference to thepeculiar susceptibilities of the victim, but by the intentof the actor. “Such fear must arise from the willful

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conduct of the accused, rather than from some meretemperamental timidity of the victim. . . .” Id.Because it focuses on the actor’s intent, and not theaddressee’s perception, the danger of regulation ofotherwise protected viewpoint is virtually non-existent.

Finally, that the Virginia statute punishesharmful conduct and not viewpoint is illustrated bythe fact that guilt under the statute is not dependentupon a motivation of racial or religious hatred. It isequally triggered by mere personal animus or othersuch content. For example, the evidence as towhether O’Mara and Elliott harbored racial hatred wasambiguous. But there was evidence to establish that,whatever their reasons, these respondents intended toinstill fear in their targets. In punishing thatexpressive conduct, the Virginia statute does notviolate First Amendment protections.

B. The Virginia Statute is Not Invalid InProscribing a Particular Form of Assaultive Speech.

While a statute punishing intimidation orthreats is constitutionally permissible, it may beargued that the Virginia statute impermissibly focusesupon certain racial or religious categories ofintimidation. Because it proscribes all threateninguses of a burning cross, § 18.2-423 does no suchthing. But even if the statute were understood asapplying to particular forms of intimidation, thisargument would be flawed. Content neutrality placesrestrictions upon the state’s ability to proscribeintimidation—for example, a state could notcriminalize only acts of intimidation that are aimed at

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members of a particular political party. To acceptcontent neutrality, however, does not require an all-or-nothing-at-all approach—it is not necessary to prohibiteither all acts of intimidation or none. Were that thecase, many criminal laws that are unquestionablylawful would raise issues of content neutrality.

A state may properly make a judgment that,within the universe of threats, some are worse thanothers. For instance, an assault with a deadly weaponis, in most states, some form of aggravated assault.The crime is more serious because the defendant hasexposed society to greater risk—even if the weapon isnot actually used—and has presumably causedgreater fear in the victim. These differences justify anincreased penalty. Likewise, a state may determinethat acts of bias-motivated intimidation are worse thanotherwise comparable acts, because these crimescause greater societal harm and injury to the victims.That the Virginia legislature chose to proscribeconduct that has a high propensity to intimidate and,in its judgment, that causes greater harm to society, issimply not constitutionally significant.

Similarly, it may be argued that the Virginialegislature chose to proscribe a symbol, and that ittherefore intended to suppress a message identifiedwith that symbol. This argument proves too much.While it is “a bedrock principle underlying the FirstAmendment . . . that the government may not prohibitthe expression of an idea simply because society findsthe idea itself offensive or disagreeable,” Texas v.Johnson, 491 U.S. 397, 414 (1989), the Virginialegislature has not forbidden its citizens to burn

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crosses in order to express racial or religious hatred.This they remain free to do. What they may not do isburn crosses with the intent of instilling serious fear,for this invades others’ rights. See D., infra at 24.

Equally, that the burning of a cross has a directtendency to instill serious fear does not invalidate theprohibition as content-based. The origin of the symbolunderscores the power of its message. “The Klan . . .appropriated one of the most sacred of symbols as asymbol of hate.” Capitol Square Review & Advisory Bd.v. Pinette, 515 U.S. 753, 771 (1995) (Thomas, J.,concurring). But the burning cross not only is linkedto racial and religious hatred, but is directlyassociated with violence, terror, and lawlessness.3 The

3 A late-night cross burning in the yard of a neighbor, withthe intent to intimidate, the crime of which respondentsO’Mara and Elliott were convicted, is an act of violence andterror.

After the mother saw the burning cross, shewas crying on her knees in the living room.[She] felt feelings of frustration andintimidation and feared for her husband’slife. She testified what the burning crosssymbolized to her as a black American:“murder, hanging, rape, lynching. Justabout anything bad that you can name. It isthe worst thing that can happen to a person.”

United States v. Skillman, 922 F.2d 1370, 1378 (9th Cir.1991).

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use of this symbol, charged as it is with historicalassociations of violence, accompanied by a specificintent to intimidate, inflicts injury through speech.Cross burning, of course, has been specificallyrecognized as having such an effect. It is “not mereadvocacy, but rather an overt act of intimidationwhich, because of its historical context, is oftenconsidered a precursor to or a promise of violence . . ..” United States v. Lee, 935 F.2d 952, 956 (8th Cir.1991).

The state may not proscribe the expression ofhate, whether racial, religious, anti-Semitic, or ethnic.But the state may prohibit the use of a particularsymbol, one universally identified with violentmanifestations of hate, when it is employed tointimidate. California Motor Transport Co. v. TruckingUnlimited, 404 U.S. 508, 515 (1972) (citation omitted)(“First Amendment rights may not be used as themeans or the pretext for achieving ‘substantive evils’which the legislature has the power to control.”). Thelatter objective is all the Virginia statute seeks toaccomplish, and it does not invade the precincts of theFirst Amendment in doing so.4

4 The Virginia statute states that “[a]ny such burning of across shall be prima facie evidence of an intent to intimidate. . . .” To the extent that this presumption eliminates proofof the state of mind of a defendant, in amici’s view thestatute may run afoul of First Amendment protectionswhich, under our formulation, require such proof.

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C. Cross Burning With the Intent to Intimidate aTargeted Individual is Expressive Conduct Outsidethe Scope of First Amendment Protection.

In Chaplinsky v. New Hampshire, 315 U.S. 568(1942), the Court held that “certain well-defined andnarrowly limited classes of speech, . . . including thelewd and obscene, the profane, the libelous, and theinsulting or ‘fighting’ words” are not within the scopeof protection of the First Amendment. Id. at 571-72.As recognized by the Court in R.A.V. v. City of St. Paul,505 U.S. 377 (1992), “our society, like other free butcivilized societies, has permitted restrictions upon thecontent of speech in a few limited areas, which are ‘ofsuch slight social value as a step to truth that anybenefit that may be derived from them is clearlyoutweighed by the social interest in order andmorality.’” Id. at 382-83, quoting Chaplinsky v. NewHampshire, 315 U.S. at 572. For the reasons we havediscussed, the proscription here is within the classicaldefinition of “fighting words,” and as such outside thescope of protection of the First Amendment.

This doctrine retains substantial force in thecontext of assaultive hate speech. While Cohen v.California, 403 U.S. 15 (1971), and Lewis v. NewOrleans, 415 U.S. 130 (1974), refined the doctrine, inone case requiring that the state must show that thedefendant directed “personally abusive epithets” at aspecific individual (Cohen v. California, 403 U.S. at20), and in the other requiring that the words bedirected at a person with a predisposition to fight(Lewis v. New Orleans, 415 U.S. at 135 (Powell, J.,concurring)), the gravamen of the doctrine remains

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that words which inflict serious and real injury areboth proscribable and punishable. See, e.g., Robertsv. United States Jaycees, 468 U.S. 609, 628 (1984)(“violence or other types of potentially expressiveactivities that produce special harms distinct fromtheir communicative impact . . . are entitled to noconstitutional protection”).

Viewed as the underpinning to punishexpressive conduct specifically intended and likely tointimidate—in this case, cross burning—the doctrineretains special force. As one leading commentator hasput it, “[i]f Chaplinsky is to maintain anycontemporary vitality, it must be understood to placeoutside the First Amendment’s reach those words thatare intended to and have the likely effect of creatingfear of injury in the addressee.” Frederick M.Lawrence, PUNISHING HATE: BIAS CRIMES UNDERAMERICAN LAW 102 (1999).5 Statutes like the Virginiastatute do precisely that. In proscribing such “fightingwords,” these statutes properly regulate an area ofexpressive conduct that is not protected by the FirstAmendment.

D. The Court’s Holding in R.A.V. Does Not ControlThis Case.

The Court’s holding in R.A.V. v. City of St. Paul,505 U.S. 377 (1992), which the Supreme Court ofVirginia believed controlling, does not invalidate 5 Professor Lawrence is co-counsel to amici in this case, anda co-author of this brief.

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statutes like the Virginia statute. What distinguishessuch statutes, and the Virginia statute as well, fromthe statute invalidated in R.A.V.—and what takes therespondents’ conduct here outside the realm ofprotected speech—is the incorporation of the requiredmens rea element of a specific “intent to intimidate.”

In R.A.V., St. Paul chose to punish crossburning by reference to an effect on third partiesrelated to the content of the speech. While the statutewas construed by the Supreme Court of Minnesota toproscribe only “fighting words” otherwise outside FirstAmendment protections, it nonetheless swept withinits prohibition only those “fighting words” that “insult,or provoke violence, ‘on the basis of race, color, creed,religion or gender.’” R.A.V., 505 U.S. at 391. In doingso, it selected among different forms of speech, andthus regulated the content or viewpoint of that speech.“Fighting words” or not, this regulation or proscriptiontransgressed the First Amendment line.

But here, the statute does not select amongmessages or content or viewpoint. Instead, it identifiesa particular type of conduct—the burning of a cross—accompanied by a particular kind of mens rea—intentto intimidate—and makes it illegal consistent with theFirst Amendment. The Virginia statute does not selectamong ideas, choosing to prohibit only particularpolitical or religious (or even hateful) messages. To thecontrary, the actor may utter whatever message hewishes, hateful, distasteful, even violent. But whenthe actor acts—by using fighting words—with therequired mens rea, with an intent to intimidate, he

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passes outside the sphere of protected expression intothe sphere of proscribable activity.6

In locating its proscription in the actor’s intent,the Virginia statute properly focuses on the right ofothers to be free of assaultive conduct, and proscribesexpressive conduct without regard to content orexpression. Unlike R.A.V., this is true regardless ofthe actor’s motive, and punishes the conduct whetherthe motive is based on race, religion, or mere personalanimosity. This type of prohibition, focusing as it doeson intent and conduct of the actor, and not oncontent, passes First Amendment muster even underthe rigorous test established by R.A.V..

That the speech here is proscribable whenaccompanied by specific criminal intent to intimidateis clear also from another aspect of R.A.V. As JusticeScalia pointed out there, “[w]hen the basis for thecontent discrimination consists entirely of the veryreason the entire class of speech at issue isproscribable, no significant danger of idea or viewpoint

6 The R.A.V. statute also did not require intentional conduct.Rather, the ordinance challenged there could be violated bynegligent conduct if a defendant used a symbol “which oneknows or has reasonable ground to know arouses anger,alarm or resentment in others on the basis of race, color,creed, religion or gender . . . .” Id. at 380. A statute whichcan be violated by negligent conduct poses a more distinctthreat to First Amendment freedoms than one requiring thestate to prove intentional conduct, such as that here.

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discrimination exists.” R.A.V. v. City of St. Paul, 505U.S. at 388. The Virginia legislature chose toproscribe the burning of a cross with the intent tointimidate because of the clear harm criminalintimidation poses to targeted individuals. In such acase, the “reason, having been adjudged neutralenough to support exclusion of the entire class ofspeech from First Amendment protection, is alsoneutral enough to form the basis of distinction withinthe class.” Id. Thus, Virginia could constitutionallychoose to exclude this one type of expressiveconduct—the burning of a cross with the specificintent to intimidate—because it can constitutionallyprohibit speech that is intended and likely tointimidate and threaten.

Amici emphatically support laws that proscribecriminal conduct such as that at issue here. Yet amicialso stand firmly behind the commitment to freeexpression. They would not and do not urge thatbelief, conscience, or hateful speech alone may besuppressed. The “bedrock principle” (Texas v.Johnson, 491 U.S. 397 at 414) that upholdsexpression even of distasteful ideas leaves no room forgovernment regulation. But expression for thepurpose of intimidation, expressive conduct directed atan individual to instill or inspire fear, is simply notwithin the expansive realm of freedom of speech as weknow it. Society may properly guard against this evil.

As a corollary, of course, the burning of a crosswithout the accompanying mens rea requirement of anintent to intimidate would constitute protected speech.Thus, amici concede that the burning of a cross at a

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political rally as a general expression of racial orreligious hatred is protected expressive conduct.7 Nomatter how odious or unpalatable the idea, amicirecognize the First Amendment protection accordedsuch expression. While perhaps offensive to others, itis nonetheless protected; that is the price we pay forthe First Amendment, and it is not too high a price.

An act intended to intimidate others is differentin kind, and forfeits expressive protection, from an actintended to make a political, or racial, or religious,point, even such a point infused or motivated by hateor bias. We tolerate the expression of hatred becausethe First Amendment guarantees freedom of allexpression, but we distinguish from true expressionwords and expressive conduct that are intended andlikely to intimidate. In those cases, we mayconstitutionally proscribe the use of symbols whenthey are the means through which the vital force ofthat intimidation is conveyed.

7 Amici take no position on whether the juries in these casesproperly found an “intent to intimidate” or whether theevidence in this regard was sufficient to sustain theconvictions of Elliott and Black, the two respondentsconvicted at trial. The two cases raise different problems ofproof, and in one the proof may well have been sufficient,while in the other it may not have been. In particular,proscribing the burning of a cross at a rally, without aspecific target of intimidation or threat, may not satisfyconstitutional requirements.

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* * *

The intimidation of others is a serious crime. Itis no less a crime, and no less punishable, whenaccomplished through the burning of a cross. Whilethat act may have expressive content, a state mayvalidly proscribe it when it does not single out anyparticular viewpoint, but rather focuses only on theact and the requisite specific intent of the actor.

Amici, leading American civil rights groups eachconcerned in its own way with, and dedicated in itsown mission to, the eradication of hate, bigotry, andbias-related violence, are mindful that we must treadwith great caution in regulating speech, conscience, orbelief. But there is no social value in the burning of across accompanied by the specific intent to intimidateothers. It does no violence to the First Amendment tobar such conduct.

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CONCLUSION

The judgment of the Supreme Court of Virginiainvalidating Virginia Code § 18.2-423 on the FirstAmendment grounds specified in that court’s opinionshould be vacated.

Respectfully submitted,

Martin E. Karlinsky, Esq.(Counsel of Record)Katten Muchin Zavis Rosenman575 Madison AvenueNew York, New York 10022(212) 940-8800

HOWARD W. GOLDSTEIN, ESQ.FRIED FRANK HARRIS SHRIVER & JACOBSONOne New York PlazaNew York, New York 10004(212) 859-8000

ROSINA K. ABRAMSON, ESQ.STEVEN M. FREEMAN, ESQ.ABBEY P. GANS, ESQ.ANTI-DEFAMATION LEAGUE823 United Nations PlazaNew York, New York 10017(212) 490-2525

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FREDERICK M. LAWRENCE, ESQ.BOSTON UNIVERSITY SCHOOL OF LAW765 Commonwealth AvenueBoston, Massachusetts 02215(617) 353-3103

ELLIOT M. MINCBERG, ESQ.PEOPLE FOR THE AMERICAN WAY FOUNDATION2000 M Street, N.W.Washington, D.C. 20036(202) 467-4999

Attorneys for Amici Curiae

August 2002