Cross-Burning Convictions Overturned

Mon Nov 5 13:19:37 PST 2001

Perhaps I'm misunderstanding John Noble, but I don't see what the constitutional problem would be in increasing criminal sanctions in cases where a conduct-defined crime is committed with the intent to intimidate.  Indeed, a quick and rudimentary WESTLAW search will reveal that an intent to intimidate is an element of countless state and federal crimes, including, for instance, the federal prohibition on acts of terrorism, 18 USC 2332b(g)(5)(A).  Why would "intent to intimidate" be any different from a constitutional perspective than requiring an intent to coerce, an intent to aid and abet, an intent to injure, etc.?

The problem with the Virginia statute, as the Va. Sup. Ct. explained, was not the "intent to intimidate" element, but the fact that the statute was limited to the burning of *crosses*, which raises serious content-discrimination concerns.  A statute that prohibited the setting of any fire with the intent to intimidate would, I think, be constitutional.  As the concurrence stated, "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."

The synagogue statute appears similarly suspect, but the appropriate cure would be to eliminate the requirement of a swastika, rather than to eliminate the intent element.

Marty Lederman
(in my private capacity)

-----Original Message-----
From: John Noble [mailto:jnoble at DGSYS.COM]
Sent: Friday, November 02, 2001 7:54 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Cross-Burning Convictions Overturned

The Va Code provisions (below) indicate that simple trespass is a
misdemeanor, punishable by up to 1 year, and requires that the property be
posted; while cross-burning is a felony, gets you 1-5, and requires proof
of intent to intimidate in lieu of trespassing on posted property. I
suspect that the property wasn't posted in the O'Mara and Elliott cases, or
they would also have charged the lesser offense, which as Eugene points out
was unavailable in the Black case in any event. But it is also clear that
the legislature draws an understandable (if unconstitutional) distinction
between the "seriousness" of trespassing on posted property for convenience
vs. intimidation.

Would anyone argue that the additional element -- an intention to
intimidate -- can, without more, constitutionally raise the offense from a
misdemeanor to a felony? What about the third statute quoted below
(18.2-423.1), which criminalizes painting swastikas on synagogues (Class 6
felony like cross-burning), but only when it is "with the intent of
intimidating...." Doesn't that also fall to a 1A challenge unless it is
amended to prohibit the conduct without regard to the intent?

John Noble

§ 18.2-119. Trespass after having been forbidden to do so; penalties.
If any person without authority of law goes upon or remains upon the lands,
buildings or premises of another, or any portion or area thereof, after
having been forbidden to do so, either orally or in writing, by the owner,
lessee, custodian or other person lawfully in charge thereof, or after
having been forbidden to do so by a sign or signs posted by such persons or
by the holder of any easement or other right-of-way authorized by the
instrument creating such interest to post such signs on such lands,
structures, premises or portion or area thereof at a place or places where
it or they may be reasonably seen... he shall be guilty of a Class 1
misdemeanor.

§ 18.2-11. Punishment for conviction of misdemeanor.
The authorized punishments for conviction of a misdemeanor are:
(a) For Class 1 misdemeanors, confinement in jail for not more than twelve
months and a fine of not more than $2,500, either or both.

§ 18.2-423. Burning cross on property of another or public place with
intent to intimidate; penalty; prima facie evidence of intent.
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

§ 18.2-10. Punishment for conviction of felony.
The authorized punishments for conviction of a felony are: ...
(f) For Class 6 felonies, a term of imprisonment of not less than one year
nor more than five years, or in the discretion of the jury or the court
trying the case without a jury, confinement in jail for not more than
twelve months and a fine of not more than $2,500, either or both.

§ 18.2-423.1. Placing swastika on certain property with intent to
intimidate; penalty; prima facie evidence of intent.
It shall be unlawful for any person or persons, with the intent of
intimidating another person or group of persons, to place or cause to be
placed a swastika on any church, synagogue or other building or place used
for religious worship, or on any school, educational facility or community
center owned or operated by a church or religious body.
A violation of this section shall be punishable as a Class 6 felony.
For the purposes of this section, any such placing of a swastika shall be
prima facie evidence of an intent to intimidate another person or group of
persons

At 3:50 PM -0800 11/2/01, Volokh, Eugene wrote:
>        I too am surprised that in the O'Mara and Elliott cases, the
>defendants weren't also prosecuted for other crimes (or so the Va. Sup.
>Ct. case and the Va. Ct. App. cases seem to suggest).  The Va. Sup. Ct.
>case is at
><http://www.courts.state.va.us/txtops/1010123.txt>http://www.courts.state.va.us/txtops/1010123.txt
>.
>
>        But in the Black case, the cross was burned at a political rally
>-- it's not clear that this action would have violated any other law.  (We
>could imagine this being punishable by some general law barring the
>burning of all large objects in public, but I don't know of any such law
>in Virginia.)
>
>        Eugene
>
>-----Original Message-----
>From:   David M Wagner [SMTP:daviwag at REGENT.EDU]
>Sent:   Friday, November 02, 2001 3:28 PM
>To:     CONLAWPROF at listserv.ucla.edu
>Subject:        Re: Cross-Burning Convictions Overturned
>
>Picking up on Jim's suggestion that the common law of crimes is equal to the
>occasion and should have been used here, it seems to me Employment Div. v.
>Smith provides any First Amendment analysis that may be necessary,
>analogizing from free exercise to free speech (easy enough; see Scalia's
>Barnes Theater concurrence).  States have laws against trespass, arson, and
>attempted arson.  Does the addition of a communicative motivation for those
>crimes force the state to show a compelling state interest before it can
>enforce such laws? No. Easy case.
>
>David M. Wagner
>Regent University School of Law
>1000 Regent University Drive
>Virginia Beach, VA  23494
>757-226-4697
>
>
>> -----Original Message-----
>> From: Discussion list for con law professors
>>
>>[<mailto:CONLAWPROF at listserv.ucla.edu>mailto:CONLAWPROF at listserv.ucla.edu]On
>>Behalf Of James Maule
>> Sent: Friday, November 02, 2001 6:09 PM
>> To: CONLAWPROF at listserv.ucla.edu
>> Subject: Cross-Burning Convictions Overturned
>>
>>
>> News from another list. I do not have a URL for the actual news release.
>>
>> My query: Is this another case of prosecutors missing the easy
>> path? How can free speech permit trespass onto another person's
>> property, and fire ignition that can put the person's home at risk?
>>
>>    The AP reports a 4-3 Virginia Supreme Court decision striking down
>>    a state law against cross-burning. It called cross-burnings acts of
>>    bigotry that are a protected form of speech.
>>
>>    Convictions of three people in two cases were reversed. In
>> one, a cross was
>>    burned at a Ku Klux Klan rally, and in the other there was an
>> attempt to burn
>>    a cross in an African-American's back yard.
>>
>>    From the opinion: "Under our system of government, people have
>> the right to use symbols
>>    to communicate. They patriotically wave the flag or burn it in
>>    protest; they may reverently worship the cross or burn it as an
>>    expression of bigotry."
>>
>>    "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."
>>
>>    From the dissent: "for almost 50 years [the law] has protected
>> our citizens from being placed in fear of bodily
>>    harm by the burning of a cross."
>>
>>
>>
>> Jim Maule
>> Professor of Law, Villanova University School of Law
>> Villanova PA 19085
>> maule at law.villanova.edu
>> <http://vls.law.vill.edu/prof/maule>http://vls.law.vill.edu/prof/maule
>> President, TaxJEM Inc (computer assisted tax law instruction)
>> (www.taxjem.com)
>> Publisher, JEMBook Publishing Co. (www.jembook.com)
>> Maule Family Archivist & Genealogist (www.maulefamily.com)
>>