Watts was convicted of violating a 1917 statute prohibiting any person from "knowingly and willfully ... [making] any threat to take the life of or to inflict bodily harm upon the President of the United States". During a public rally near the Washington Monument, Watts, 18, joined a small group of fellow teens and adolescents to discuss police brutality. He told the others he had been drafted and had to report the following Monday. He reportedly said, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” He added, “They are not going to make me kill my black brothers.” A jury found Watts had committed a felony by knowingly and willfully threatening the President. The United States Court of Appeals for the District of Columbia Circuit affirmed by a two-to-one vote.
This case arises out of two separate cross-burning incidents. In May 1998, two men Richard J. Elliott and Jonathan OMara burned a cross in the yard of James Jubilee, an African-American neighbor of Elliott. In August 1998, Barry Elton Black leads a Ku Klux Klan rally on private property with the consent of the owner. Black burns a cross at the rally, which frightens a neighbor of the property owner.
Prosecutors charge all three men with violating Virginias cross-burning statute, which provides: It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or to 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.
All three men lose their criminal cases before the trial court. A jury convicts Elliott and Black in separate proceedings. OMara enters a conditional plea of guilty. This means he pleas guilty to the offense but reserves the right to challenge the constitutionality of the cross-burning law.
The court of appeals affirms the convictions of the three men in two separate cases. The appeals court reasons that the statute only proscribes true threats, a category of expression not protected by the First Amendment. The appeals court also determines that the burning of the cross is a form of fighting words, another category of speech not protected by the First Amendment.
On appeal, the Virginia Supreme Court consolidates, or combines, the two cases. In a 4-3 decision, the state supreme court reverses, finding the statute violates the First Amendment. The majority reasons that the statute regulates speech based on hostility to the underlying message of cross burning.