Cross-Burning Convictions Overturned

Leslie Goldstein 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?
Leslie

"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
> prosecution.
>
>         Eugene
>
> 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)
>      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)
>      >>
>
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