Virginia Code 18.2-423, the cross burning statute, states:
It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or 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.
Any such burning of a cross shall be
prima facie evidence of an intent to
intimidate a person or group of persons. (Emphasis added.)
That second part is a big problem. The mere burning of a cross constitutes initial evidence of intent to intimidate, which places the burden on the defendant to show he did not mean to intimidate. The Supreme Court does not like to read the 1st Amendment as placing the burden of defending one’s free speech on the individual; instead, the govt must prove its case that someone’s speech does not deserve protection.
Otherwise, a govt statute prohibiting this or that form of expression has a "chilling effect" on speech, as folks decide not to speak for fear of prosecution.
Now, cross-burning might be legitimately prohibited IF it can be covered under the "fighting words" category of unprotected speech. Robert Alt, esq., chime in here whenever you are ready. I just don’t like the view that blacks or Catholics (or whatever minority group of individuals) deserve govt protection ONLY if
their sensibilities are offended. Rights are not supposed to be that alienable. As Ken Masugi noted, this sends us back to Kennedy’s bad opinion in Lee V. Weisman, or Warren’s inane argument (though not result) in Brown v. Board.
Souter’s remark about the supposedly Pavlovian response of blacks to burning crosses is condescending in the extreme; moreover, I don’t think Scalia’s bit about blacks preferring to see a man with a rifle in their yard as opposed to seeing him burn a cross is much different.
Also, Ginsburg was just plain idiotic to say that you can burn a flag because "anyone can attack the government" and then say burning a cross was different because it means "attacking people, threatening life and limb." In one of the cases grouped under Virginia v. Black, the racist yahoos got permission from a private citizen to burn a cross on her yard. How does this threaten life and limb? What is considered under law an intimidating act? Does the Nazi symbol now qualify as verboten
under the 1st Amendment?