App., Dec. 19, 2000), App. but might do so without an intent to intimidate anyone. I believe the prima facie evidence provision stands in the way of any finding of such a high probability here. With respect to Barry Black, we agree with the Supreme Court of Virginia that his conviction cannot stand…. In 1871, “President Grant sent a message to Congress indicating that the Klan’s reign of terror in the Southern States had rendered life and property insecure.” Jett v. Dallas Independent School Dist., 491 U. S. 701, 722 (1989) (internal quotation marks and alterations omitted). After this debate, the Klan reiterated its support for Nixon by burning crosses. v. Joseph H. Munson Co., supra, at 965, n. 13 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 797 (1984)). The Court explained that when the subcategory is confined to the most obviously proscribable instances, “no significant danger of idea or viewpoint discrimination exists,”and the explanation was rounded out with some illustrative examples. went up in a flame.” Id., at 71. § 22-221 (1969) (repealed 1972) (“White and colored persons shall not be taught in the same school”); Va. Code Ann. Because I believe the constitutional defect in Black’s conviction is rooted in a jury instruction and not in the statute itself, I would not dismiss the indictment and would permit the Commonwealth to retry Black if it wishes to do so. According to the sheriff, the cross “then all of a sudden . Id., at 180. Under the statute’s prima facie evidence provision, the physical act of burning a cross was seen as sufficient evidence for the jury to find an intent to intimidate others. Not only does Black mark a departure from R.A.V., but its reliance on the Watts “true threats” language suggests a potential retrenchment of the Court’s broad protection of subversive speech, a development that bears watching in an era overshadowed by the War on Terror. Now this is truly baffling. Pp. Karst, Kenneth L.“Threats and Meanings: How the Facts Govern First Amendment Doctrine.” Stanford Law Review 58 (2006): 1337–1412. And in Alabama in 1942, in “a whirlwind climax to weeks of flogging and terror,” the Klan burned crosses in front of a union hall and in front of a union leader’s home on the eve of a labor election. To the contrary, in keeping with the black-letter understanding of “prima facie evidence,” the Virginia Supreme Court explained that such evidence suffices only to “insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief.” 262 Va., at 778, 553 S. E. 2d, at 746. . It covers misleading advertising in a particular industry in which the risk of fraud is thought to be great, and thus deals with commercial speech with its separate doctrine and standards. Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan. 196–was taken verbatim from Virginia’s Model Jury Instructions. the prosecutor responded that the instruction was “taken straight out of the [Virginia] Model Instructions.” Id., at 134. Congdon, Amanda J. Similarly, Virginia’s statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate. ford, 408 U. S. 104, 114 (1972) (a statute may be overbroad “if in its reach it prohibits constitutionally protected conduct” (emphasis added)); R. A. V. v. St. Paul, 505 U. S., at 397 (White, J., concurring in judgment) (deeming the ordinance at issue “fatally overbroad because it criminalizes . To the extent that tribunal has spoken to the question of what “prima facie evidence” means for purposes of § 18.2-423, it has not deviated a whit from its prior practice and from the ordinary legal meaning of these words. It also invalidated a provision of the same law that allowed a jury to infer intent to intimidate from the act of burning a cross in public. We have consequently held that fighting words-“those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction” -are generally proscribable under the First Amendment. The dissent noted that the burden of proof still remains on the Commonwealth to prove intent to intimidate. shall be prima facie evidence of an intent to intimidate a person or group.” When respondent Black objected on First Amendment grounds to his trial court’s jury instruction that cross burning by itself is sufficient evidence from which the required “intent to intimidate” could be inferred, the prosecutor responded that the instruction was taken straight out of the Virginia Model Instructions. I wholeheartedly agree with the observation made by the Commonwealth of Virginia: “A white, conservative, middle-class Protestant, waking up at night to find a burning cross outside his home, will reasonably understand that someone is threatening him. Nevertheless, because the Virginia Supreme Court has not yet offered an authoritative construction of § 18.2-423, I concur in the Court’s decision to vacate and remand the judgment with respect to respondents Elliott and O’Mara. Cross burning in this country, however, long ago became unmoored from its Scottish ancestry. SOUTER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which KENNEDY and GINSBURG, JJ., joined, post, p. 380. The plurality fears the chill on expression because, according to the plurality, the inference permits “the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself.” Ante, at 365. 14, 1951, p. 1, App. For example, when a cross burning is directed at a particular person not affiliated with the Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical. First, Virginia invokes Scher v. United States,305 U. S. 251 (1938). It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. § 18.1-87 (1960). In one incident, an African-American “school teacher who recently moved his family into a block formerly occupied only by whites asked the protection of city police . This reliance on overbreadth doctrine is understandable. Edited by Doug Linder. Accordingly, the Court concluded that because of the interpretation of the prima facie evidence provision given by the jury instruction, the provision made the statute facially unconstitutional. In R. A. V., we held that a local ordinance that banned certain symbolic conduct, including cross burning, when done with the knowledge that such conduct would “ ‘arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender’ ” was unconstitutional. 313, 314-315 (The second reported cross burning within a week in 1949 “brought to eight the number which have occurred in Virginia during the past year. . . Ante, at 354-357. Rather, its opinion explained that under § 18.2-423, “the act of burning a cross alone, with no evidence of intent to intimidate, will . By a 6-3 margin, in Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court upheld a Virginia statute making it illegal to burn a cross in public with the intent to intimidate others.It also invalidated a provision of the same law that allowed a jury to infer intent to intimidate from the act of burning a cross in public. And while cross burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed. Newton & Newton 585. 16, §4753A (1987); Mass. Held: The judgment is affirmed in part, vacated in part, and remanded. '” Nance v. Commonwealth, 203 Va., at 432, 124 S. E. 2d, at 903-904; see also ibid., 124 S. E. 2d, at 904 (noting that the prima-facie-evidence provision” ‘is merely a rule of evidence and not the determination of a fact . Again, however, threats against the President are not generally identified by reference to the content of any message that may accompany the threat, let alone any viewpoint, and there is no obvious correlation in fact between victim and message. Cross Burned at Manakin, Third in Area, supra n. 1, at 318. Although the first Klan never actually practiced cross burning, Dixon’s book depicted the Klan burning crosses to celebrate the execution of former slaves. United States v. Guest, 383 U. S. 745, 747-748, n. 1 (1966) (quoting indictment charging conspiracy under 18 U. S. C. § 241 (1964 ed.) Sign up for our newsletter to receive regular updates and news from JMC: Sharing Online Resources for Teaching during COVID-19. Whether or not the Court should conceive of exceptions to R. A. V.’s general rule in a more practical way, no content-based statute should survive even under a pragmatic recasting of R. A. 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