Case Overview

Legal Principle at Issue

Whether a statute banning cross-burning with the intent to intimidate violates the First Amendment.


The Supreme Court of the United States upheld the portion of the statute which bans burning a cross in public with the intent to intimidate but invalidated the provision that treated all cross-burnings as evidence for intent to intimidate.


This case arose out of two separate cross-burning incidents. In May 1998, Richard J. Elliott and Jonathan O’Mara burned a cross in the yard of James Jubilee, Elliott’s black neighbor. In August 1998, Barry Elton Black led a Ku Klux Klan rally on private property with the consent of the property’s owner. Black burned a cross at the rally, which frightened a relative of the property owner who watched from a nearby house. Prosecutors charged all three men with violating Virginia’s 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.” All three men lost their criminal cases before the trial court. The court of appeals affirmed the convictions of the three men in two separate cases. The appeals court reasoned that the statute only proscribes true threats, a category of expression not protected by the First Amendment. The appeals court also determined 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 consolidated the two cases. In a 4-3 decision, the state supreme court reversed, finding the statute violated the First Amendment. The majority reasoned that the statute regulated speech based on hostility to the underlying message of cross burning.

Importance of Case

The Supreme Court found the bulk of the statute in line with R.A.V. v. City of Saint Paul (1992), which permits the state to limit the worst kinds of a particular form of proscribable speech, like intimidation and true threats, as long as it is done without regard to content or viewpoint. The Court in Black said that although some forms of cross burning may be considered “intimidating” when carried out with the intent to communicate a threat of physical harm to a specific target, not all cross-burning may automatically be considered as evidencing such an intent to intimidate. The 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.” Further, the Court held that speech loses First Amendment protection and becomes intimidation when it is “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

Cite this page