Judicial Notebook

In Virginia v. Black (2003 WL 1791218), the United States Supreme Court ruled against its prior First Amendment cases, which had protected individuals' rights to express most types of symbolic speech uttered against other persons or groups.

In one part of its decision, the Court allowed Virginia to prosecute a couple for burning a cross on the lawn of their African-American neighbor under a provision that specifically prohibits cross-burning "...with the intent of intimidating any person or group of persons...on the property of another, a highway or other public place" (Va. Code Am. Sec. 18.2-423.01 [1996]).

In an earlier case (Rav v. City of St. Paul, 112 S.Ct. 2538), the Court had struck down a similar cross-burning law from Minnesota because it would, "arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender..." (St. Paul, Minn., Legis. Code Sec 292.02 [1990]).

In a narrow (5-4) majority opinion, Justice O'Connor described two principles that distinguish the cases. First, the new ruling allows banning symbolic-speech acts if the prohibition does not limit the speech on the "...basis of content by targeting only those individuals who 'provoke violence' on a basis specified in the law" [italics added]. In other words, the Court previously struck down the Minnesota law because it targeted only a specific message aimed at particular types of individuals. However, the Virginia statute prohibited symbolic speech without regard to content of the message or the class of people against whom the speech was directed. Virginia's statute bans cross-burning that is a "true threat" or "an expression of an intent to commit an act of unlawful violence..." against all individuals or groups.

In fact, in the Virginia case, the defendants may have burned the cross not to discriminate against African Americans, but instead to retaliate for their neighbor's complaints about the defendants' use of their back yard as a shooting range for their son.

Second, the Court requires that the symbolic act is committed with the intent to intimidate another and not to express a political ideology. For example, burning a cross at a Ku Klux Klan meeting to support the views of the organization would be protected speech as long as the cross-burning did not become a "true threat" to intimidate African Americans, Catholics, Jews or any other groups or individuals.

Justice Thomas dissented from this view, arguing that cross-burning is without First Amendment protection because of its long association with threats to African Americans and others. Cross-burning is never simply an expression of political perspective but always an action taken by "those who hate" to "terrorize and intimidate to make their point." Nonetheless, the majority held that "A ban on cross-burning carried out with the intent to intimidate...is proscribable under the First Amendment," but only if the intention is to intimidate and not simply to express a political point of view.

New laws prohibiting cross- burning--and perhaps other symbolic acts--may result in practicing psychologists going to court to determine the intentions of individual defendants charged with violating these new "hate crime" theories.

Equally interesting, the ruling opens an entire area of research to applied social psychologists interested in motivation and person perception. The law turns on the intention to intimidate as a vital construct in interpreting whether symbolic speech is a hate crime or a legitimate expression of political ideology. The courts and state legislatures are very likely to be interested in the development of empirical models to determine when people act to intimidate others and whether the recipients of those messages experience fear, anxiety and other types of emotional distress.

One obvious place to begin is to study the cognitive, emotional and attitudinal responses that different groups of people have to cross-burning, but additional efforts at studying other types of symbolic threats may be equally as interesting, and ultimately very pragmatic, if legislatures broaden prohibitions to include other types of symbolic speech.