In Virginia v. Black (2003), the Supreme Court defined true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Opinions & Commentaries

394 U.S. 705 (1969) WATTS v. UNITED STATES.     No. 1107, Misc. Supreme Court of United States.    Decided April 21, 1969. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.Joseph Forer for petitioner.Solicitor General Griswold for the United States. Ralph J. Temple, Melvin L. Wulf, and Lawrence Speiser for the American Civil Liberties Union et al. as amici curiae. PER CURIAM. After a jury trial in the United States District Court for the District of Columbia, petitioner was convicted of violating a 1917 statute which prohibits any person […]


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.


Help FIRE protect the speech rights of students and faculty.

Support FIRE