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Three people—Richard Elliott, Barry Black, and Virginia—were each given a distinct sentence in the Virginia v. Black case for breaking Virginia's law against cross-burning. According to the law, burning a cross in a public or private space is prima facie proof that someone intended to frighten others.
Black objected to the claim that burning a cross is adequate evidence from which to infer intent to intimidate during the trial, citing the First Amendment as support for his position. Along with actual speech, the first amendment also limited or protected symbolic or expressive behavior. O'Mara on the other hand pleaded guilty to violating the cross burning statute but reserved the right to contest the legality of the law. At the trial of responded Elliott, the judge instructed the jury on the provision of the Commonwealth but failed to provide instruction of the meaning prima facie evidence or intimidation.
The supreme court of the United States consolidated the three cases and held that the cross-burning statute is unconstitutional in its current form. The judges argued that the law was not different from ordinances found in the case of R. A. V. v. St. Paul. The judgment rendered it discriminative on it viewpoints and content because it selectively picks on the burning of the cross because of its distinctive message. The judges also argued that the prima facie evidence also renders the law overbroad since the likelihood of prosecution under the provision chills the utterance of protected speech.
In the Supreme Court trials, the judgment was vacated in part, affirmed in part, remanded. In the trial, Justice O'Connor delivered the opinion of the court in three sections namely I, II, and III. In the first part, the judges recalled the provision of the First Amendment that offers protection for actual speech and symbolic or expressive conduct for general public interest. They argued that even if the message inferred from cross burning was political or meant to intimidate, it represented a symbol of hate. According to the court, cross burning had been used by Ku Klux Klan to perpetuate intimidation and threat, and its use is of public concern. The court thus affirmed that even though cross burning may not depict fear, but when used can symbolize an intent to create fear or threat. In the second part of the opinion, the justices basing their argument on R.A.V. v. St. Paul, 505 U.S. 377 found that the Virginia cross-burning statute did not run afoul on the First Amendment. They argued that the law imposed restrictions based on the content of a particular type of speech likely to impose fear or harm to the body. In the last part, the justices held that the provision of prima facie rendered the Virginia statute unconstitutional because it established the unacceptable risk of quashing the burning of the cross as part of a genuine form of symbolic speech protected by the First Amendment, such as symbol of solidarity in a group or statement of ideology.
In agreement with the three opinions, the judges concluded that the Court should remand and vacate the judgment of the Virginia Supreme Court regarding O'Mara and Elliott so that the court can have an opportunity to adequately construe the provision of prima facie evidence as applied in cross-burning statute. They also agreed that the Virginia statute was unconstitutional and could not rely on the exception under R. A. V. v. St. Paul. Therefore, they held that court judgment of Black should be invalidated
The constitution set the standard of protection for symbols that may be racist in nature. The law bases it the protection of symbols based on the intended meaning of the used symbol rather than the prima facie evidence as mention in Virginia statute. It requires that one considers whether the symbol used aims at creating anger and resentment or intimidation. The symbol must have been used to show racial discrimination or hatred and is known by the public to depict fear or intimidation. Besides, the constitution requires that judges looked at the consent on the use of the symbols. If an individual consent to the use of a particular symbol then such symbol does not qualify to be racial to him of her. The justices in the Supreme Court agree with these standards by asserting that using the provision of prima facie could distort justice to the respondent and it is on this ground that they reject the conviction of Black.
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