In the
SUPREME COURT OF VIRGINIA
On Remand
From the United States Supreme Court
COMMONWEALTH OF VIRGINIA,
Appellant,
v.
)
)
)
)
RICHARD J. ELLIOTT,
and
JONATHAN o 'MARA,
Appellees.
)
)
)
)
)
)
Record No. 003014,
Record No. 010038
BRIEF OF AMICUS CURIAE
IN SlJPPORT OF APPELL"EES
THE THOMAS JEFFERSON CENTER FOR
THE PROTECTION OF FREE EXPRESSION
J. Joshua Wheeler, Esq.
Robert M. O'Neil, Esq.
The Thomas Jefferson Center
for the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, Virginia 22911-8691
Telephone: 434-295-4784
Fax: 434-296-3621
ATTORNEYS FOR AMICUS CURIAE
TABLE OF CONTENTS
TABLE OF AUTHORITIES
ii
~SSI<=J]\J~1'JTS O~ ~~O~
1
QUESTIONS PRESENTED
1
STATE~NT
2
N~TURE
OF INTEREST OF AMICUS C-URIAE
OF THE
C~SE
AND
STATE~MENT
OF F~CTS
3
Sl-T~~~ O~ A~<=J~l\JT
3
AR<=JU~NT
5
I.
VIR<=JINIA MAY - AND INDEED DOES - CONSTRUE THE
CONSTITUTION~L <=JU~RANTEE OF FREE EXPRESSION IN
~RTICLE I, § 12 MORE B~OADL Y THAN THE NATIONAL FIRST
A~l\fJ:)~NlL RE~U~S
5
A. The Virginia Constitution tolerates the expression of disfavored
views to a greater extent than the First Amendment of the United
States Constitution
B. Virginia Code § 18.2-423 is an overly broad statute that violates
both the Virginia Constitution and the First ~mendment to the
l-Tnited States Constitution
8
11
II. THE U.S. SUPRE~ COURT H~S DETERMINED TH~T VIR<=JINIA
CODE § 18.2-423 ENCOMPASSES SITU~ TIONS INVOLVIN-<=J THE
INCITE~1'JT OF OTHE~S TO EN<=J~<=JE IN UNL~ WFUL
BEHAVIOR AND, AS SUCH, THE STATUllE MUST CO:MPORT
WITH THE STANDARDS SET FORTH IN BRANDENBUR<=J V.
OHIO
17
CONCLU'SION
20
1
TABLE OF AUTHORITIES
Cases:
Black~
et. ale v. Virginia, 262 Va. 764,553 S.E. 2d 738 (2001)
.
............................................................................ 9, 10, 13, 14, 15, 16, 17, 18, 19
Brandenburg v. Ohio, 395 U.S. 444 (1969)
2, 4, 5, 17, 19
Hudgens v. .NLRB, 424 U.S. 507 (1976)
6
Lloyd Center v. Tanner, 407 U.S. 551 (1972)
6
Pruneyard Shopping Center v. Robbins, 447 U.S. 74 (1980)
4,5
R.A. V. v. St. Paul, 505 U.S. 377 (1992)
10
Richmond Newspapers v. COM, 222 Va. 574,281 S.E. 2d 915 (1981)
Robert v. City ofNorfolk, 188 Va. 413,49 S.E. 2d 697 (1948)
7
5,7
Smith v. United States, 431 U.S. 291 (1977)
6
State v. Henry, 302 Ore. 510,732 P.2d 9 (1987)
6
Virginia v. Black, 123 S. Ct. 1536 (2003)
Watts v. United States, 394 U.S. 705 (1969)
3, 10, 11, 13, 14, 16, 18, 19,20
18
Constitional:
U.S. Const. Amend. I
6, 7, 8,19,20
'VA. Const. Art. I, § 12
4, 5,7,17,20
11
Statutory:
Code of Virginia:
Virginia Code § 18.2-423
-it:) CO,-tCl
1.1.U.~-.~-J.V..l.
Q I') _,11') '2 1\ 1
"ll611..lJ.U.
U""' R
~
\ , ~t'"n~li
passim
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
1~t:)ClCI~~1""
pUt.:)~J...l..1.
Oii,er:
Black's Law Dictionary (6 th ed. 1990)
12
Linda Greenhouse, Justices Allow Bans on Cross Burnings Intended as Threats,
N.Y. Times, Apr. 8, 2003, at AI
11
Edward Walsh, State Bans on Cross Burning Upheld, Wash. Post, Apr. 8,2003,
at Al
11
Virginia Commission on Constitutional Revision, Report ofthe Commission on
Constitutional ~R.e~'isiorl (1969)
7
Virginia Model Jury Instructions, Criminal (1988 and Supp. 2001)
111
13
ASSIGNMENTS OF ERROR
This case is on remand from the United States Supreme Court. Rather
than Assignments of Error, therefore, the issues in this case are those
presented in the Order of this Court dated August 29, 2003.
QUESTIONS PRESENTED
Listed below are the five questions presented in the Order of this
Court dated August 29, 2003. In this brief, however, amicus curiae will only
specifically address questions 4 and 5.
1. Is the prima facie provision of Code § 18.2-423 facially invalid or
unconstitutional?
2. If it is facially invalid or unconstitutional, is the final sentence of
Code § 18.2-423 severable from the remainder of the statute?
(a) Assuming it is possible to sever the prima facie aspect of
the statute, is it possible or permissible to do so given the
.procedural posture of the case?
(b) Has the Commonwealth preserved the right to request
severing of the prima facie aspect of Code § 18.2-423?
3. If the final sentence is not amenable to an interpretation that would
render it constitutional, but it is severable, could Richard J. Elliott
and Jonathan O'Mara be retried under § 18.2-423? More
specifically, should the Court order (a) that Elliott's and/or
O'Mara's convictions stand with no right to a retrial, (b) that
Elliott's and/or O'Mara's are vacated, but the Commonwealth may
retry either or both appellants, or (c) that Elliott's and/or O'M:ara's
convictions are vacated, but the Commonwealth may not retry
either or both defendants?
4. Does Code § 18.2-423 comport with the "Brandenburg standard"
articulated by the Supreme Court of the United States in
Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d
430 (1969)?
5. Is Code § 18.2-423 valid in consideration of the free speech and
expression guarantees of the Virginia Constitution articulated in
Article I, § 12?
STATEMENT OF INTEREST OF AMICUS CIJRIAE
The Thomas Jefferson Center for the Protection of Free Expression is
no stranger to this case. The Center filed briefs as amicus cllriae in this
matter in the Circuit Court of Carroll County, the Virginia Court of Appeals,
the Virginia Supreme Court, and the United States Supreme Court. As such,
the Center is well versed in the facts and important issues that this case
presents.
2
The Center is a nonprofit, nonpartisan organization in Charlottesville,
Virginia. Founded in 1990, the Center has as its sole mission the protection
of free speech and press against threats in many forms and has pursued that
mission through litigation involving free speech and press in state and
federal courts across the country.
NATURE OF THE CASE AND STATEMENT OF FACTS
Defendant Richard J. Elliot was convicted of attempted cross burning
under Virginia Code § 18.2-423. For the same incident, defendant Jonathan
O'Mara pled guilty to attempted cross burning but reserved the right to
challenge the constitutionality of Virginia Code § 18.2-423 on appeal. In a
third case involving a different incident, defendant Barry Black was
convicted of violating Virginia Code § 18.2-423 forbuming a cross as part
of a Ku Klux Klan rally. All three defendants appealed challenging the
constitutionality of the Virginia statute. This Court found Virginia Code §
18.2-423 facially invalid under the First Amendment to the United States
Constitution. The United States Supreme Court affrrmed the dismissal of
charges against defendant Black, but remanded the cases of defendants
Elliott and O'Mara. In an Order issued on August 29, 2003, this Court
directed the parties to address the five specific questions listed above.
SUMMARY OF ARGUMENT
3
Although the United States Supreme Court's ruling in Virginia v.
Black, 123 S. Ct. 1536 (2003) forecloses any further proceedings in this
matter against defendant Black, the Court left open the possibility of further
proceedings against defendants Elliott and 0 'Mara, including retrial in the
Circuit Court on the original charges under Virginia Code § 18.2-423.
Amicus curiae does not address the question of whether such a retrial should
now occur, nor does amicus address the issue of the severability of the
statute, assuming that the parties will fully address those issues. The focus
of this brief is on two issues of paramount importance represented by
Questions 4 and 5 in this Court's Order of August 29, 2003; namely, whether
or not Va. Code § 18.2-423 comports with the constitutional requirements
set forth in Brandenburg v. Ohio, 395
u.s. 444 (1969), and the validity of
the statute in consideration of the free speech and expression guarantees of
the Virginia Constitution articulated in Article I, § 12.
Central to amicus' response is the principle that, in a federal system
such as ours, the courts of each state may define the guarantees of their own
constitutions so as to protect activity or expression which the Constitution of
the United States may not protect. Pruneyard Shopping Center v. Robbins,
447 U.S. 74 (1980). The federal constitutional guarantees, in short, establish
a floor below which states may not fall, but do not impose a ceiling which
4
states may not exceed. The import of this principle is especially clear and
meaningful for Virginia, since this Court has declared that "the Constitution
of Virginia is broader than that of the U.S. in providing that - 'any citizen
may freely speak, write and publish his sentiments on all subjects. '" Robert
v. City ofNorfolk, 188 Va. 413,42, 49 S.E. 2d 697,700 (1948) (quoting
VA. Const. Art. I, § 12 ). Pursuant to such recognition of Virginia's special
solicitude for expressive rights, amicus respectfully urges this Court to
declare Va. Code § 18.2-423 to be facially invalid, particularly given the
inescapable presence in the statute of the clearly unconstitutional prima facie
provision. Amicus also urges this Court to declare that Va. Code § 18.2-423
fails to meet constitutionally acceptable standards for the regulation of
advocacy or incitement of unlawful conduct, as set forth by the United States
Supreme Court in Brandenburg v. Ohio.
ARGUMENT
I.
VIRGINIA MAY - AND INDEED DOES - CONSTRUE THE
CONSTITUTIONAL GUARANTEE OF FREE EXPRESSION IN
ARTICLE I, § 12 MORE BROADLY THAN THE NATIONAL
FIRST AMEN"DMENT REQ"UIRES.
The United States Supreme Court has made unmistakably clear that in
a federal system such as ours, state courts are free to protect the rights of
their citizens more fully than the Bill of Rights demands. That latitude
5
applies particularly to freedom of speech and press, as the Supreme Court
recognized in Pruneyard Shopping Center v. Robbins, 447 U.S. 74 (1980),
where the California Supreme Court's state constitution-based protection for
expressive activity in privately owned malls and shopping centers was
sustained, despite the lower standard which the Supreme Court had applied
under the First Amendment in cases such as Lloyd Center v. Tanner, 407
U.S. 551 (1972) and Hudgens v. NLRB, 424 U.S. 507 (1976). The central
premise of Pruneyard is that a state may not in its regulation of speech fall
below the "floor" that federal constitutional law guarantees, but is in no way
prevented from affording to its own citizens a degree of protection that
exceeds the "ceiling" which adherence to federal standards would create.
Thus, in a different expressive area, states may criminalize the
distribution of obscenity to consenting adults, as most (including Virginia)
have chosen to do. But if a state chooses, as Oregon h.as chosen, to make
such distribution lawful within its borders, see State v. Henry, 302 Ore. 510,
732 P.2d 9 (1987), and to rest its judgment on the state constitution's
provisions, that is an option which a state enjoys within a federal system.
The resulting variation among standards - even between federal and state
prosecutions in a state that has decriminalized the distribution of obscene
materials to consenting adults, see Smith v. United States, 431 U.S. 291
6
(1977), are an inevitable result of the latitude that our federal system gives to
states.
Such latitude exists even though a state's courts may often describe
parallel federal and state guarantees as coextensive. Thus the view
expressed by Virginia's lower courts at earlier stages in this case that the
federal and state free-expression guarantees are coextensive in no way
preclu.des on remand the adoption of a more protective standard of free
speech for Virginians under the state constitution. Whatever may be the
case with respect to facts determined at an earlier stage of litigation, to
which principles of res judicata surely apply, no such barrier exists to
reopening the quest for the most appropriate source of constitutional law.
The opportunity to protect speech more broadly under a state's
constitution is one that has special meaning for Virginians. For more than a
half century, this Court has made clear that "the Constitution of Virginia is
broader than that of the U.S. in providing that - 'any citizen may freely
speak, write and publish his sentiments on all subjects, '" Robert v. City of
Norfolk, 188 Va. 413,420 (1948) (quoting VA. Const. Art. I, § 12). More
recently, this Court expressly based a free press ruling on Article I, § 12
reflecting the view expressed by the state Commission on Constitutional
Revision that parallels between federal and state guarantees offered "no
7
good reason not to look first to Virginia's Constitution for the safeguards of
fundamental rights of Virginians." Rich/nond Newspapers v. COM, 222 Va.
574,580,281 S.E. 2d 915,922 (1981)(quoting Report ofthe Commission on
Constitutional Revision, p. 86 (1969)). Thus the opportunity to protect
expression more fully than the First Amendment requires is not only
available in theory; more to the point, it is an opportunity that this Court has
seized and pursued.
Recognizing that the Virginia Constitution may provide greater
protection for speech than that provided by the
u.s. Constitution, the
question immediately arises as to what aspects of free speech are
insufficiently protected by the latter in regards to Va. Code § 18.2-423? The
answer is two-fold: the tolerance for expression of differing viewpoints,
even those as abhorrent as the racial and religious bigotry symbolized by a
burning cross, and the chilling of protected expression by an overbroad
statute.
A. The Virginia Constitution tolerates the expression of disfavored
views to a greater extent than the First Amendment of the United
States Constitution.
On the issue of viewpoint discrimination, the difference between the
state and federal constitutions is one of degree, not kind. While the First
Amendment to the U. S. Constitution goes far in limiting government's
ability to legislate its preferences for and against particular viewpoints, it
does not provide the degree of tolerance for differing views that is inherent
in the Virginia Constitution.
When this case was originally before this Court, a number of
conclusions were made regarding the viewpoint discriminatory purpose and
effect of the Virginia statute.
While not specifically stating that race, color, creed,
religion, or gender is the subject of proscription, the
absence of such language in the Virginia statute does
not mask the motivating purpose behind the statutory
prohibition of cross burning.
Black, et. ale v. Virginia, 262 Va. 764, 774, 553 S.E. 2d 738, 744 (2001)
(citations omitted)(emphasis added).
[C]onsidering the historical and current context of
cross burning, and the statute's reliance on such
context for the provision of an inference of intent to
intitnidate from the mere act of burning a cross, it is
clear that the Commonwealth's interest in enacting the
cross burning statute is related to the suppression of
free expression as well.
Id. at 775,553 S.E. 2d at 744 (emphasis added).
The historical context for the passage of the Virginia
cross burning statute is uncontrovertible. In an
atmosphere of racial, ethnic, and religious intolerance,
the General Assembly acted to combat a particularly
virulent form of intimidating speech.
Id. at 776,553 S.E. 2d at 746 (emphasis added).
9
During oral argument, the Commonwealth maintained
that the portion of the statute proscribing the burning
of a cross had nothing to do with the motivation of the
actor. When asked how the Commonwealth could
justify the inference of intimidation provided in the last
sentence of the statute, the Commonwealth relied upon
the historical context ofcross burning. The
Commonwealth cannot have it both ways.
Id. (emphasis added).
None of these conclusions are challenged by the U.S. Supreme Court's
decision in this matter. In its review of the case, the u.s. Supreme Court
simply determined that the language of the statute met the minimum
requirements for viewpoint neutrality as set forth in RA }iT v.St. Paul, 505
u·.s. 377 (1992). See Virginia v. Black,
123 S. Ct. 1536, 1549 (2003). In
reaching its conclusion, the U.S. Supreme Court pla.ced far greater reliance
than this Court on the fact that the Virginia statute did not contain explicit
language demonstrating a viewpoint bias. Id. Yet this analysis only explains
why the statute might be constitutionally permissible under RA V; in no way
does it change this Court's conclusions regarding the discriminatory purpose
behind the Virginia General Assembly's passage of the act.
The fact that RA V may tolerate a neutrally worded but viewpointbased statute does not mean that RA V requires such tolerance. This Court,
having already found that the statute's purpose was the suppression of free
speech, should feel free to exercise its allthority to hold that such a
10
viewpoint-based statute violates the Virginia Constitution. Such a holding
would send the unequivocal message that, in Virginia, the prohibition of
viewpoint discriminatory statutes cannot be avoided by mere wordplay.
This message would be particularly effective in circumstances, such as those
in the present case, where the hann sought to be prevented can be achieved
through legislation that does not implicate the rights enunciated in Article I,
§ 12 of the Virginia Constitution. Indeed, after the U.S. Supreme Court
granted certiorari in this matter, the General Assembly drafted and passed
Va. Code § 18.2-423.01 (2002), a statute that raises few, if any, of the free
speech concerns caused by Va. Code § 18.2-423.
B. Virginia Code § 18.2-423 is an overly broad statute that violates
both the Virginia Constitution and the First Amendment to the
United States Constitution.
When the U.S. Supreme Court issued its decision in this case, many of
the press headlines declared that that the high Court had upheld Va. Code §
18.2-423. See, e.g., Edward Walsh, State Bans on Cross Burning Upheld,
Wash. Post, Apr. 8, 2003, at AI; Linda Greenhouse, Justices Allow Bans on
Cross Burnings Intended as Threats, N.Y. Times, Apr. 8,2003, at AI.
In
fact, a plurality of the U.S. Supreme Court found the entire statute
unconstitutional on its face. This fmding was based on the statute's prima
facie provision as interpreted by a jury instruction issued in the trial of Barry
11
Black. Virginia v. Black, 123 S. Ct. at 1551-52. Although the charges
against defendant Black were dismissed, the U.S. Supreme Court remanded
the case against defendants Elliot and O'Mara because no interpretation of
the prima facie provision had been issued by Virginia courts in either of their
respective legal proceedings. Id. at 1550. The remand would give this Court
the opportunity to authoritatively interpret the meaning of the prima facie
provision. Specifically, this Court would now be allowed to determine
"whether any interpretation of the prima facie evidence provision would
satisfy the First Amendment." Id. at 1552 (emphasis in original). Also true
is that the remand allows this Court the opportunity to determine if Va. Code
§ 18.2-423 violates the Virginia Constitution.
The prima facie provision of Virginia Code § 18.2-423 states: "Any
such burning of a cross shall be prima facie evidence of an intent to
intimidate a person or group of person." Black's Law Dictionary defines
"prima facie evidence," in relevant part, as follows:
Evidence good and sufficient on its face. Such
evidence as, in the judgment of the law, is suflicient to
establish a given fact ... which if not rebutted or
contradicted, will remain sufficient. Evidence which,
if unexplained or uncontradicted, is sufficient to
sustain a judgment in favor of the issue it supports, but
\vhich may be contradicted by other evidence.
Black's Law Dictionary, 1190 (6th ed. 1990).
12
In the case of Barry Black, the jury was given the following instruction
concerning the prima facie provision: "The burning of a cross, by
itsel(~
is
sufficient evidence from which you may infer the required intent." Virginia
v. Black, 123 S. Ct. at 1550.
In its review of the case, the U.S. Supreme Court held that the jury
instruction in Black was a clear violation of the First Amendment. "[T]he
prima facie evidence provision can 'skew jury deliberations toward
conviction in cases where the evidence of intent to intimidate is relatively
weak and arguably consistent with a solely ideological reason for burning. '"
Id. at 1551 (The Black plurality of four was quoting the opinion of Justice
Souter which was joined by two other Justices. Thus, seven members of the
Court shared this view of the jury instruction's interpretation of the prima
facie provision.)
Given the task of reviewing the jury instruction, however, it is
difficult to conceive of a reasonable but different interpretation of the prima
facie provision. N"or, apparently, could the drafters of The Virginia Model
Jury Instructions whose model instruction for Va. Code § 18.2-423 is the
same as the one issued in the Black trial. See yTirginia v. Black, 123 S. Ct. at
1550 (citing Virginia Model Jury Instructions, Criminal, Instruction No.
10.250 (1988 and Supp. 2001). Further, the plain language of the provision
13
leaves police and law enforcement personnel no discretion as to who to
arrest under the statute. As this Court stated in it review of the provision,
"the act of burning a cross alone, with no evidence of an intent to intimidate,
will nonetheless suffice for arrest and prosecution and will insulate the
Commonwealth from a motion to strike the evidence at the end of its case­
in-chief." Black, 262 Va. at 778, 553 S.E.2d at 746. The U.S. Supreme
Court left no doubt of its view on whether the prima facie provision could
have a chilling effect on the expression of protected speech:
The act of burning a cross may mean that a person
is engaging in constitutionally proscribable
intimidation. But the same act may mean only that
the person is engaged in core political speech. The
prima facie evidence provision in this statute blurs
the line between these two meanings of a burning
cross. As interpreted by the jury instrllction, the
provision chills constitutionally protected political
speech because of the possibility that a State will
prosecute--and potentially convict--somebody
engaging in lawful political speech at the core of
what the First Amendment protects.
Virginia v. Black, 123 S. Ct. at 1551.
The high Court's concern that the prima facie provision creates an
increased probability of arrest and prosecution which, in tum, creates a.
chilling effect on protected expression, is a clear affirmation of a finding
previously made by this Court:
14
That the trier of fact ultimately finds the actor not
guilty of the offense is little consolation after arrest
and prosecution for speech or expressive conduct
that is otherwise protected. Arrest for, and
prosecution of, otherwise protected speech, with
no evidence of a critical element of the offense
other than a statutorily supplied inference, chills
free expression.
Black, 262 Va. at 778,553 S.E.2d at 746.
It is important to note that in making the foregoing statement, this
Court was not evaluating the jury instruction given in Barry Black's trial but
the prima facie provision itself. Yet this Court's assessment of the effect of
the provision is virtually identical to the U.S. Supreme Court's assessment of
the effect of the jury instruction. As such, it is evident that the prima facie
provision cannot be reasonably construed in a manner substantively different
than the jury instruction given in defendant Black's trial. -Under the First
Amendment analysis employed by both Courts, therefore, the prima facie
provision renders Va. Code § 18.2-423 unconstitutionally overbroad.
In his concurrence to the plurality opinion in Black, Justice Scalia
challenged the plurality's conclusion that the mere threat that individuals
engaged in protected expressive conduct will be subject to arrest and
prosecution suffices to render a statute overbroad. "Rather, our overbreadth
jurisprudence has consistently focused on whether... individuals who engage
in protected conduct can be convicted under a statute, not whether they
15
might be subject to arrest and prosecution." Virginia v. Black, 123 S. Ct. at
1554 (Scalia, J., concurring) (emphasis in original). Only one other Justice
agreed with Justice Scalia on this point. Id. at 1552 (Thomas, J., concurring).
But even if it were held that Va. Code § 18.2-423 was not overbroad under
the First Amendment, the findings of this Court strongly indicate that the
statute reaches expression protected by the Virginia Constitution.
As noted above, this Court found that, for one wishing to engage in
protected expression, the possibility of being found not guilty does not
diminish the chilling effect of a statute that so easily allows for arrest and
prosecution for such expression. Black, 262 Va. at 778, 553 S.E.2d at 746.
The substance of that fmding is not altered by legal analysis; one's exercise
of protected expression will be chilled even if such a statute is found not to
violate the First Amendment. The right of free speech should be defmed
more by substance than procedure. Having already determined that the
chilling effect of Va. Code § 18.2-423 was severe enough to warrant the
lesser protection of the First Amendment, this Court should invoke the
greater protection of the Virginia Constitution to prevent the harm caused by
this overbroad. statute.
16
II.
THE U.S. SUPREME COURT HAS DETERMINED THAT
VA. CODE § 18.2-423 ENCOMPASSESS SITUATIONS
INVOLVING THE INCITEMENT OF OTHERS TO
ENGAGE INU~LAWFUL BEHAVIOR AND, AS SUCH,
THE STATUTE MUST COMPORT WITH THE
STANDARDS SET FORTH IN BRANDENBURG V. OHIO.
In its prior review of the instant matter, two members of this Court
found that Va. Code § 18.2-423 did not meet the constitutional standards for
punishing advocacy of unlawful behavior set forth in Brandenburg v. Ohio.
Black, 262 Va. at 779,553 S.E.2d at 747 (Kinser, J., concurring).
A
majority of this Court, however, specifically declined to address the issue.
The rationale for that decision was understandable--addressing the issue was
llnnecessary because the Court had already found the statute unconstitutional
under the First Amendment on grounds of viewpoint discrimination and
overbreadth. Id. at 778, 553 S.E. 2d at 746. On remand, it is again
unnecessary for this Court to address the Brandenburg question because, as
discussed above, the statute violates Article I, § 12 of the Virginia
Constitution.
Should this Court nonetheless choose to consider this issue, amicus
would urge this Court to find that Va. Code § 18.2-423 does not comport
with the Brandenburg standard. Given this Court's Order of August, 2003,
however, it can well be expected that the parties will fully address this issue.
As such, amicus feels it would be of greater assistance to this Court to
17
briefly address a more narrow but critical aspect of the question;
specifically, whether Va. Code § 18.2-423 is limited to criminalizing the
making of "true threats" as articulated in Watts v. United States, 395 U.S.
705 (1969) (per curiam) and therefore does not even trigger the
Brandenburg analysis. See Black, 262 Va. at 781,553 S.E.2d at 748
(Hassell, J., dissenting).
Despite not directly addressing this question, a plurality of the U.S.
Supreme Court has implicitly already answered it in the affirmative. In.deed,
the proof is in the pudding as evidenced by the high Court's affirmation of
this Court's decision to reverse the conviction of Barry Black for violating
Va. Code § 18.2-423. In making this decision, it is clear that the U.S.
Supreme Court was troubled by the fact that the statute's reach extended to
actions such as those committed by defendant Black.
The prima facie provision makes no effort to distinguish
among... different types of cross burning. It does not
distinguish between a cross burning done with the
purpose ofcreating anger or resentment and a cross
burning done with the purpose of threatening or
intimidating a victim. It does not distinguish between a
cross burning at a public rally or a cross burning on a
neighbor's lawn. It does not treat the cross burning
directed at an individual differently from the cross
burning directed at a group oflike-minded believers. It
allows a jury to treat a cross burning on the property of
another with the owner's acquiescence in the same
manner as a cross burning on the property of another
without the owner's permission.
18
Virginia v. Black, 123 S. Ct. at 1551 (emphasis added).
Each of the cross burnings emphasized in the above passage could
clearly apply to the circumstance of one advocating others to commit an
unlawful act. Similarly, this Court found it "[r]emarkabl[e]" that Va. Code §
18.2-423 "sweeps within its prohibition the act 'on the property of another'
with or without pennission." Black, 262 Va. at 778,553 S.E.2d at 746. 779,
553 S.E.2d at 747 (Kinser, J., concurring).
The facts of Brandenburg itself involved a cross burning at a Ku Klux
Klan rally held on private property with the permission of the owner.
Brandenburg, 395 U.S. at 445. The defendant in the case personally invited
a television news station to cover the rally. Id. Fully aware that his
comments were being recorded, the defendant made a number of racist and
anti-Semitic statements that undoubtedly raised the anger and resentment of
many who subsequently viewed the news coverage of the rally. Id. at 446.
The defendant was charged and convicted of violating the Ohio Criminal
Syndicalism Statute for "advocating... the duty, the necessity, or propriety of
crime, sabotage, violence, or unlawful means of terrorism as a means of
accomplishing industrial or political reform .... " Id. at 444-45. The U.S.
Supreme Court struck down the Ohio statute on the grounds that the First
Amendment prohibits states from punishing the advocacy of unlawful
19
conduct except where such advocacy is directed to inciting or producing
imminent lawless action. Id. at 447.
As noted above, in Virginia v. Black the high Court described a
number of circumstances involving protected expression to which the reach
of Va. Code § 18.2-423 would clearly extend. See 123 S. Ct. at 1551.
Because many of those circumstances precisely describe the facts of
Brandenburg, logic dictates that Va. Code § 18.2-423 must be scrutinized
under the standards set forth in that landmark decision.
CONCLUSION
For the reasons set forth above, amicus curiae The Thomas Jefferson
Center for the Protection of Free Expression respectfully asks this Court to
declare that Virginia Code § 18.2-423 violates Article I, § 12 of the Virginia
Constitution and First Amendment to the United States Constitution.
/ J. Joshua Wheeler, Esq.
VSB # 36934
Robert M. O'Neil, Esq.
The Thomas Jefferson Center for
the Protection of Free Expression
400 Peter Jefferson Place
Charlottesville, VA 22911
Telephone: 434-295-4784
Fax: 434-296-3621
ATTORNEYS FOR AMICUS CURIAE
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that the requisite number of copies
of the foregoing Brief of Amicus Curiae weremailed.this
):2...
day of
September 2003, postage prepaid, to the following:
ATTORNEY FOR THE APPELLEE
William Hllrd
State Solicitor
C/o Office of Attorney General
Commonwealth of Virginia
900 East Main Street
Richmond, Virginia 23219
804-786-2071
ATTORNEYS FOR THE APPELLANT
James o. Broccoletti
Zoby & Broccoletti
6663 Stoney Point South
Norfolk, VA 23502
757-466-0750
Kevin E. Martingayle
Stallings and Richardson
2102 Parks Avenue
Pavilion Center, Suite 801
Virginia Beach, VA 23451
757-422-4700
J. Joshua Wheeler, Esq. VSB # 36934
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