Cross-Burning Convictions Overturned
lesl at UDEL.EDU
Mon Nov 5 07:47:58 PST 2001
I sent my post before I saw this from Eugene--why does the crossburning
decision not imply that these other statutes are (in the minds of the VA
court) now unconstitutional?
"Volokh, Eugene" wrote:
> Interestingly, threats to kill or commit bodily injury are
> class 6 felonies, Va Stat 18.2-60 -- same as burning a cross with
> intent to intimidate -- but only if they're in a "writing." Seems to
> me that burning a cross on an unconsenting party's lawn is quite
> likely to be seen as a threat to commit bodily injury; it's too bad
> that the writing requirement would probably preclude such a
> John Noble writes:
> 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)
> between the "seriousness" of trespassing on posted property for
> 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
> (18.2-423.1), which criminalizes painting swastikas on synagogues
> (Class 6
> felony like cross-burning), but only when it is "with the intent
> 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;
> 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,
> having been forbidden to do so, either orally or in writing, by
> the owner,
> lessee, custodian or other person lawfully in charge thereof, or
> 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
> instrument creating such interest to post such signs on such
> 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
> § 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
> intent to intimidate; penalty; prima facie evidence of intent.
> It shall be unlawful for any person or persons, with the intent
> intimidating any person or group of persons, to burn, or cause to
> burned, a cross on the property of another, a highway or other
> 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
> facie evidence of an intent to intimidate a person or group of
> § 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
> trying the case without a jury, confinement in jail for not more
> 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
> 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
> center owned or operated by a church or religious body.
> A violation of this section shall be punishable as a Class 6
> 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
> At 3:50 PM -0800 11/2/01, Volokh, Eugene wrote:
> > I too am surprised that in the O'Mara and Elliott cases,
> >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
> > 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
> >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
> >analogizing from free exercise to free speech (easy enough; see
> >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
> >> -----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
> >> property, and fire ignition that can put the person's home at
> >> 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
> >> attempt to burn
> >> a cross in an African-American's back yard.
> >> From the opinion: "Under our system of government, people
> >> the right to use symbols
> >> to communicate. They patriotically wave the flag or burn it
> >> 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
> >> 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
> >> 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)
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