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Sam Heldman


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Tuesday, December 10, 2002
No. 01-1107 Virginia v. Black

This case is a challenge to Virginia’s anti-cross-burning statute. The statute makes cross burning with intent to intimidate someone illegal, and further makes the cross-burning itself prima facie evidence of the intent to intimidate. The Supreme Court of Virginia found that the statute was unconstitutional.

The question in this case, I believe, boils down to whether Virginia’s “intent to intimidate” language is enough like the ordinance in R.A.V. v. City of St. Paul, 505 U.S. 377. In that case, the Court held unconstitutional a statute that banned placing a symbol in a public place “which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Court held that the ordinance was "facially unconstitutional in that it prohibit[ed] otherwise permitted speech solely on the basis of the subjects the speech addresses."

I don’t really see much difference here. Cross burning is a regrettable form of expression, but a form of expression nevertheless. If the hate-speech cases don’t settle this case, then the flag-burning cases do. I predict the Court will AFFIRM.

Did I say I would have more in-depth analysis? Sorry about that. What I meant was that I would do enough of my own research to be more confident that my predictions amount to informed opinions. I haven't really ever given in-depth analysis have I?