VIRGINIA v. BLACK et al.

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VIRGINIA v. BLACK et al.
certiorari to the supreme court of virginia
No. 01–1107. Argued December 11, 2002—Decided April 7, 2003
Respondents were convicted separately of violating a Virginia statute that
makes it a felony “for any person . . . , with the intent of intimidating
any person or group . . . , to burn . . . a cross on the property of another,
a highway or other public place,” and specifies that “[a]ny such burning
. . . shall be prima facie evidence of an intent to intimidate a person
or group.” When respondent Black objected on First Amendment
grounds to his trial court’s jury instruction that cross burning by itself
is sufficient evidence from which the required “intent to intimidate”
could be inferred, the prosecutor responded that the instruction was
taken straight out of the Virginia Model Instructions. Respondent
O’Mara pleaded guilty to charges of violating the statute, but reserved
the right to challenge its constitutionality. At respondent Elliott’s trial,
the judge instructed the jury as to what the Commonwealth had to
prove, but did not give an instruction on the meaning of the word “in-
timidate,” nor on the statute’s prima facie evidence provision. Consol-
idating all three cases, the Virginia Supreme Court held that the cross-
burning statute is unconstitutional on its face; that it is analytically
indistinguishable from the ordinance found unconstitutional in R. A. V.
v. St. Paul, 505 U. S. 377; that it discriminates on the basis of content
and viewpoint since it selectively chooses only cross burning because of
its distinctive message; and that the prima facie evidence provision ren-
ders the statute overbroad because the enhanced probability of prosecu-
tion under the statute chills the expression of protected speech.
Held: The judgment is affirmed in part, vacated in part, and remanded.
262 Va. 764, 553 S. E. 2d 738, affirmed in part, vacated in part, and
remanded.
Justice O’Connor delivered the opinion of the Court with respect
to Parts I, II, and III, concluding that a State, consistent with the First
Amendment, may ban cross burning carried out with the intent to intim-
idate. Pp. 352–363.
(a) Burning a cross in the United States is inextricably intertwined
with the history of the Ku Klux Klan, which, following its formation in
1866, imposed a reign of terror throughout the South, whipping, threat-
ening, and murdering blacks, southern whites who disagreed with the
Klan, and “carpetbagger” northern whites. The Klan has often used
cross burnings as a tool of intimidation and a threat of impending vio-

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lence, although such burnings have also remained potent symbols of
shared group identity and ideology, serving as a central feature of Klan
gatherings. To this day, however, regardless of whether the message
is a political one or is also meant to intimidate, the burning of a cross is
a “symbol of hate.” Capitol Square Review and Advisory Bd. v. Pi-
nette, 515 U. S. 753, 771. While cross burning does not inevitably
convey a message of intimidation, often the cross burner intends that
the recipients of the message fear for their lives. And when a cross
burning is used to intimidate, few if any messages are more powerful.
Pp. 352–357.
(b) The protections the First Amendment affords speech and expres-
sive conduct are not absolute. This Court has long recognized that the
government may regulate certain categories of expression consistent
with the Constitution. See, e. g., Chaplinsky v. New Hampshire, 315
U. S. 568, 571–572. For example, the First Amendment permits a State
to ban “true threats,” e. g., Watts v. United States, 394 U. S. 705, 708
(per curiam), which encompass those statements where the speaker
means to communicate a serious expression of an intent to commit an
act of unlawful violence to a particular individual or group of individuals,
see, e. g., ibid. The speaker need not actually intend to carry out the
threat. Rather, a prohibition on true threats protects individuals from
the fear of violence and the disruption that fear engenders, as well as
from the possibility that the threatened violence will occur. R. A. V.,
supra, at 388. Intimidation in the constitutionally proscribable sense
of the word is a type of true threat, where a speaker directs a threat to
a person or group of persons with the intent of placing the victim in
fear of bodily harm or death. Respondents do not contest that some
cross burnings fit within this meaning of intimidating speech, and
rightly so. As the history of cross burning in this country shows, that
act is often intimidating, intended to create a pervasive fear in victims
that they are a target of violence. Pp. 358–360.
(c) The First Amendment permits Virginia to outlaw cross burnings
done with the intent to intimidate because burning a cross is a particu-
larly virulent form of intimidation. Instead of prohibiting all intimidat-
ing messages, Virginia may choose to regulate this subset of intimidat-
ing messages in light of cross burning’s long and pernicious history as
a signal of impending violence. A ban on cross burning carried out
with the intent to intimidate is fully consistent with this Court’s holding
in R. A. V. Contrary to the Virginia Supreme Court’s ruling, R. A. V.
did not hold that the First Amendment prohibits all forms of content-
based discrimination within a proscribable area of speech. Rather, the
Court specifically stated that a particular type of content discrimination
does not violate the First Amendment when the basis for it consists

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entirely of the very reason its entire class of speech is proscribable.
505 U. S., at 388. For example, it is permissible to prohibit only that
obscenity that is most patently offensive in its prurience—i. e., that
which involves the most lascivious displays of sexual activity. Ibid.
Similarly, Virginia’s statute does not run afoul of the First Amendment
insofar as it bans cross burning with intent to intimidate. Unlike the
statute at issue in R. A. V., the Virginia statute does not single out
for opprobrium only that speech directed toward “one of the specified
disfavored topics.” Id., at 391. It does not matter whether an individ-
ual burns a cross with intent to intimidate because of the victim’s race,
gender, or religion, or because of the victim’s “political affiliation, union
membership, or homosexuality.” Ibid. Thus, just as a State may reg-
ulate only that obscenity which is the most obscene due to its prurient
content, so too may a State choose to prohibit only those forms of intimi-
dation that are most likely to inspire fear of bodily harm. Pp. 360–363.
Justice O’Connor, joined by The Chief Justice, Justice Ste-
vens, and Justice Breyer, concluded in Parts IV and V that the Vir-
ginia statute’s prima facie evidence provision, as interpreted through
the jury instruction given in respondent Black’s case and as applied
therein, is unconstitutional on its face. Because the instruction is the
same as the Commonwealth’s Model Jury Instruction, and because the
Virginia Supreme Court had the opportunity to expressly disavow it,
the instruction’s construction of the prima facie provision is as binding
on this Court as if its precise words had been written into the statute.
E. g., Terminiello v. Chicago, 337 U. S. 1, 4. As construed by the in-
struction, the prima facie provision strips away the very reason why a
State may ban cross burning with the intent to intimidate. The provi-
sion permits a jury to convict in every cross burning case in which de-
fendants exercise their constitutional right not to put on a defense.
And even where a defendant like Black presents a defense, the provision
makes it more likely that the jury will find an intent to intimidate re-
gardless of the particular facts of the case. It permits the Common-
wealth to arrest, prosecute, and convict a person based solely on the
fact of cross burning itself. As so interpreted, it would create an unac-
ceptable risk of the suppression of ideas. E. g., Secretary of State of
Md. v. Joseph H. Munson Co., 467 U. S. 947, 965, n. 13. The act of
burning a cross may mean that a person is engaging in constitutionally
proscribable intimidation, or it may mean only that the person is en-
gaged in core political speech. The prima facie evidence provision blurs
the line between these meanings, ignoring all of the contextual factors
that are necessary to decide whether a particular cross burning is in-
tended to intimidate. The First Amendment does not permit such a
shortcut. Thus, Black’s conviction cannot stand, and the judgment as

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to him is affirmed. Conversely, Elliott’s jury did not receive any in-
struction on the prima facie provision, and the provision was not an
issue in O’Mara’s case because he pleaded guilty. The possibility that
the provision is severable, and if so, whether Elliott and O’Mara could be
retried under the statute, is left open. Also left open is the theoretical
possibility that, on remand, the Virginia Supreme Court could interpret
the prima facie provision in a manner that would avoid the constitutional
objections described above. Pp. 363–368.
Justice Scalia agreed that this Court should vacate and remand the
judgment of the Virginia Supreme Court with respect to respondents
Elliott and O’Mara so that that court can have an opportunity authorita-
tively to construe the cross-burning statute’s prima-facie-evidence pro-
vision. Pp. 368, 379.
Justice Souter, joined by Justice Kennedy and Justice Gins-
burg, concluded that the Virginia statute is unconstitutional and can-
not be saved by any exception under R. A. V. v. St. Paul, 505 U. S. 377,
and therefore concurred in the Court’s judgment insofar as it affirms
the invalidation of respondent Black’s conviction. Pp. 380–381, 387.
O’Connor, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, and III, in which Rehn-
quist, C. J., and Stevens, Scalia, and Breyer, JJ., joined, and an opinion
with respect to Parts IV and V, in which Rehnquist, C. J., and Stevens
and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, post,
p. 368. Scalia, J., filed an opinion concurring in part, concurring in the
judgment in part, and dissenting in part, in which Thomas, J., joined as
to Parts I and II, post, p. 368. Souter, J., filed an opinion concurring in
the judgment in part and dissenting in part, in which Kennedy and Gins-
burg, JJ., joined, post, p. 380. Thomas, J., filed a dissenting opinion,
post, p. 388.
William H. Hurd, State Solicitor of Virginia, argued the
cause for petitioner. With him on the brief were Jerry W.
Kilgore, Attorney General, Maureen Riley Matsen and Wil-
liam E. Thro, Deputy State Solicitors, and Alison P. Landry,
Assistant Attorney General.
Deputy Solicitor General Dreeben argued the cause for
the United States as amicus curiae urging reversal. With
him on the brief were Solicitor General Olson, Assistant
Attorney General Boyd, Barbara McDowell, Jessica Dunsay
Silver, and Linda F. Thome.

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Rodney A. Smolla argued the cause for respondents.
With him on the brief were James O. Broccoletti, David P.
Baugh, and Kevin E. Martingayle.*
Justice O’Connor announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, II, and III, and an opinion with respect to Parts IV
and V, in which The Chief Justice, Justice Stevens, and
Justice Breyer join.
In this case we consider whether the Commonwealth of
Virginia’s statute banning cross burning with “an intent to
intimidate a person or group of persons” violates the First
Amendment. Va. Code Ann. § 18.2–423 (1996). We con-
clude that while a State, consistent with the First Amend-
ment, may ban cross burning carried out with the intent to
intimidate, the provision in the Virginia statute treating any
*Briefs of amici curiae urging reversal were filed for the State of Cali-
fornia by Bill Lockyer, Attorney General, Manuel M. Medeiros, State So-
licitor General, Richard M. Frank, Chief Assistant Attorney General, and
Angela Sierra, Deputy Attorney General; for the State of New Jersey
et al. by David Samson, Attorney General of New Jersey, and Carol John-
ston, Deputy Attorney General, and by the Attorneys General for their
respective States as follows: Janet Napolitano of Arizona, Richard Blu-
menthal of Connecticut, Thomas J. Miller of Iowa, J. Joseph Curran, Jr.,
of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm
of Michigan, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada,
Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon, Mark L. Shurtleff of Utah, and William H. Sor-
rell of Vermont; and for the Criminal Justice Legal Foundation by Kent
S. Scheidegger.
Briefs of amici curiae urging affirmance were filed for the Council of
Conservative Citizens by Edgar J. Steele; for the Rutherford Institute by
John W. Whitehead and Steven H. Aden; and for the Thomas Jefferson
Center for the Protection of Free Expression by Robert M. O’Neil and J.
Joshua Wheeler.
Martin E. Karlinsky, Howard W. Goldstein, Steven M. Freeman, Fred-
erick M. Lawrence, and Elliot M. Mincberg filed a brief for the Anti-
Defamation League et al. as amici curiae.

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cross burning as prima facie evidence of intent to intimidate
renders the statute unconstitutional in its current form.
I
Respondents Barry Black, Richard Elliott, and Jonathan
O’Mara were convicted separately of violating Virginia’s
cross-burning statute, § 18.2–423. That statute provides:
“It shall be unlawful for any person or persons, with
the intent of intimidating any person or group of per-
sons, to burn, or cause to be burned, a cross on the prop-
erty 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 evi-
dence of an intent to intimidate a person or group of
persons.”
On August 22, 1998, Barry Black led a Ku Klux Klan rally
in Carroll County, Virginia. Twenty-five to thirty people at-
tended this gathering, which occurred on private property
with the permission of the owner, who was in attendance.
The property was located on an open field just off Brushy
Fork Road (State Highway 690) in Cana, Virginia.
When the sheriff of Carroll County learned that a Klan
rally was occurring in his county, he went to observe it from
the side of the road. During the approximately one hour
that the sheriff was present, about 40 to 50 cars passed the
site, a “few” of which stopped to ask the sheriff what was
happening on the property. App. 71. Eight to ten houses
were located in the vicinity of the rally. Rebecca Sechrist,
who was related to the owner of the property where the rally
took place, “sat and watched to see wha[t] [was] going on”
from the lawn of her in-laws’ house. She looked on as the
Klan prepared for the gathering and subsequently conducted
the rally itself. Id., at 103.
During the rally, Sechrist heard Klan members speak
about “what they were” and “what they believed in.” Id.,

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at 106. The speakers “talked real bad about the blacks and
the Mexicans.” Id., at 109. One speaker told the assem-
bled gathering that “he would love to take a .30/.30 and just
random[ly] shoot the blacks.” Ibid. The speakers also
talked about “President Clinton and Hillary Clinton,” and
about how their tax money “goes to . . . the black people.”
Ibid. Sechrist testified that this language made her “very
. . . scared.” Id., at 110.
At the conclusion of the rally, the crowd circled around a
25- to 30-foot cross. The cross was between 300 and 350
yards away from the road. According to the sheriff, the
cross “then all of a sudden . . . went up in a flame.” Id.,
at 71. As the cross burned, the Klan played Amazing Grace
over the loudspeakers. Sechrist stated that the cross burn-
ing made her feel “awful” and “terrible.” Id., at 110.
When the sheriff observed the cross burning, he informed
his deputy that they needed to “find out who’s responsible
and explain to them that they cannot do this in the State
of Virginia.” Id., at 72. The sheriff then went down the
driveway, entered the rally, and asked “who was responsi-
ble for burning the cross.” Id., at 74. Black responded,
“I guess I am because I’m the head of the rally.” Ibid. The
sheriff then told Black, “[T]here’s a law in the State of Vir-
ginia that you cannot burn a cross and I’ll have to place you
under arrest for this.” Ibid.
Black was charged with burning a cross with the intent
of intimidating a person or group of persons, in violation of
§ 18.2–423. At his trial, the jury was instructed that “intent
to intimidate means the motivation to intentionally put a
person or a group of persons in fear of bodily harm. Such
fear must arise from the willful conduct of the accused rather
than from some mere temperamental timidity of the victim.”
Id., at 146. The trial court also instructed the jury that “the
burning of a cross by itself is sufficient evidence from which
you may infer the required intent.” Ibid. When Black ob-
jected to this last instruction on First Amendment grounds,

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the prosecutor responded that the instruction was “taken
straight out of the [Virginia] Model Instructions.” Id., at
134. The jury found Black guilty, and fined him $2,500.
The Court of Appeals of Virginia affirmed Black’s conviction.
Rec. No. 1581–99–3 (Va. App., Dec. 19, 2000), App. 201.
On May 2, 1998, respondents Richard Elliott and Jonathan
O’Mara, as well as a third individual, attempted to burn
a cross on the yard of James Jubilee. Jubilee, an African-
American, was Elliott’s next-door neighbor in Virginia
Beach, Virginia. Four months prior to the incident, Jubilee
and his family had moved from California to Virginia Beach.
Before the cross burning, Jubilee spoke to Elliott’s mother
to inquire about shots being fired from behind the Elliott
home. Elliott’s mother explained to Jubilee that her son
shot firearms as a hobby, and that he used the backyard as a
firing range.
On the night of May 2, respondents drove a truck onto
Jubilee’s property, planted a cross, and set it on fire. Their
apparent motive was to “get back” at Jubilee for complaining
about the shooting in the backyard. Id., at 241. Respond-
ents were not affiliated with the Klan. The next morning,
as Jubilee was pulling his car out of the driveway, he noticed
the partially burned cross approximately 20 feet from his
house. After seeing the cross, Jubilee was “very nervous”
because he “didn’t know what would be the next phase,” and
because “a cross burned in your yard . . . tells you that it’s
just the first round.” Id., at 231.
Elliott and O’Mara were charged with attempted cross
burning and conspiracy to commit cross burning. O’Mara
pleaded guilty to both counts, reserving the right to chal-
lenge the constitutionality of the cross-burning statute.
The judge sentenced O’Mara to 90 days in jail and fined him
$2,500. The judge also suspended 45 days of the sentence
and $1,000 of the fine.
At Elliott’s trial, the judge originally ruled that the jury
would be instructed “that the burning of a cross by itself is

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sufficient evidence from which you may infer the required
intent.” Id., at 221–222. At trial, however, the court in-
structed the jury that the Commonwealth must prove that
“the defendant intended to commit cross burning,” that “the
defendant did a direct act toward the commission of the cross
burning,” and that “the defendant had the intent of intim-
idating any person or group of persons.” Id., at 250. The
court did not instruct the jury on the meaning of the word
“intimidate,” nor on the prima facie evidence provision of
§ 18.2–423. The jury found Elliott guilty of attempted cross
burning and acquitted him of conspiracy to commit cross
burning. It sentenced Elliott to 90 days in jail and a $2,500
fine. The Court of Appeals of Virginia affirmed the convic-
tions of both Elliott and O’Mara. O’Mara v. Common-
wealth, 33 Va. App. 525, 535 S. E. 2d 175 (2000).
Each respondent appealed to the Supreme Court of Vir-
ginia, arguing that § 18.2–423 is facially unconstitutional.
The Supreme Court of Virginia consolidated all three cases,
and held that the statute is unconstitutional on its face. 262
Va. 764, 553 S. E. 2d 738 (2001). It held that the Virginia
cross-burning statute “is analytically indistinguishable from
the ordinance found unconstitutional in R. A. V. [v. St. Paul,
505 U. S. 377 (1992)].” Id., at 772, 553 S. E. 2d, at 742. The
Virginia statute, the court held, discriminates on the basis of
content since it “selectively chooses only cross burning be-
cause of its distinctive message.” Id., at 774, 553 S. E. 2d,
at 744. The court also held that the prima facie evidence
provision renders the statute overbroad because “[t]he en-
hanced probability of prosecution under the statute chills the
expression of protected speech.” Id., at 777, 553 S. E. 2d,
at 746.
Three justices dissented, concluding that the Virginia
cross-burning statute passes constitutional muster because it
proscribes only conduct that constitutes a true threat. The
justices noted that unlike the ordinance found unconstitu-
tional in R. A. V. v. St. Paul, 505 U. S. 377 (1992), the Virginia

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statute does not just target cross burning “on the basis of
race, color, creed, religion or gender.” 262 Va., at 791, 553
S. E. 2d, at 753. Rather, “the Virginia statute applies to
any individual who burns a cross for any reason provided the
cross is burned with the intent to intimidate.” Ibid. The
dissenters also disagreed with the majority’s analysis of the
prima facie provision because the inference alone “is clearly
insufficient to establish beyond a reasonable doubt that a de-
fendant burned a cross with the intent to intimidate.” Id.,
at 795, 553 S. E. 2d, at 756. The dissent noted that the bur-
den of proof still remains on the Commonwealth to prove
intent to intimidate. We granted certiorari. 535 U. S.
1094 (2002).1
II
Cross burning originated in the 14th century as a means
for Scottish tribes to signal each other. See M. Newton &
J. Newton, The Ku Klux Klan: An Encyclopedia 145 (1991).
Sir Walter Scott used cross burnings for dramatic effect in
The Lady of the Lake, where the burning cross signified both
a summons and a call to arms. See W. Scott, The Lady of
The Lake, canto third. Cross burning in this country, how-
ever, long ago became unmoored from its Scottish ancestry.
Burning a cross in the United States is inextricably inter-
twined with the history of the Ku Klux Klan.
The first Ku Klux Klan began in Pulaski, Tennessee, in the
spring of 1866. Although the Ku Klux Klan started as a
social club, it soon changed into something far different.
The Klan fought Reconstruction and the corresponding drive
to allow freed blacks to participate in the political process.
1 After we granted certiorari, the Commonwealth enacted another stat-
ute designed to remedy the constitutional problems identified by the state
court. See Va. Code Ann. § 18.2–423.01 (2002). Section 18.2–423.01 bans
the burning of “an object” when done “with the intent of intimidating any
person or group of persons.” The statute does not contain any prima
facie evidence provision. Section 18.2–423.01, however, did not repeal
§ 18.2–423, the cross-burning statute at issue in this case.

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Soon the Klan imposed “a veritable reign of terror” through-
out the South. S. Kennedy, Southern Exposure 31 (1991)
(hereinafter Kennedy). The Klan employed tactics such as
whipping, threatening to burn people at the stake, and mur-
der. W. Wade, The Fiery Cross: The Ku Klux Klan in
America 48–49 (1987) (hereinafter Wade). The Klan’s vic-
tims included blacks, southern whites who disagreed with
the Klan, and “carpetbagger” northern whites.
The activities of the Ku Klux Klan prompted legislative
action at the national level. In 1871, “President Grant sent
a message to Congress indicating that the Klan’s reign of
terror in the Southern States had rendered life and property
insecure.” Jett v. Dallas Independent School Dist., 491
U. S. 701, 722 (1989) (internal quotation marks and alter-
ations omitted). In response, Congress passed what is now
known as the Ku Klux Klan Act. See “An Act to enforce
the Provisions of the Fourteenth Amendment to the Consti-
tution of the United States, and for other Purposes,” 17 Stat.
13 (now codified at 42 U. S. C. §§ 1983, 1985, and 1986). Pres-
ident Grant used these new powers to suppress the Klan in
South Carolina, the effect of which severely curtailed the
Klan in other States as well. By the end of Reconstruction
in 1877, the first Klan no longer existed.
The genesis of the second Klan began in 1905, with the
publication of Thomas Dixon’s The Clansmen: An Historical
Romance of the Ku Klux Klan. Dixon’s book was a sympa-
thetic portrait of the first Klan, depicting the Klan as a group
of heroes “saving” the South from blacks and the “horrors”
of Reconstruction. Although the first Klan never actually
practiced cross burning, Dixon’s book depicted the Klan
burning crosses to celebrate the execution of former slaves.
Id., at 324–326; see also Capitol Square Review and Advi-
sory Bd. v. Pinette, 515 U. S. 753, 770–771 (1995) (Thomas,
J., concurring). Cross burning thereby became associated
with the first Ku Klux Klan. When D. W. Griffith turned
Dixon’s book into the movie The Birth of a Nation in 1915,

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the association between cross burning and the Klan became
indelible. In addition to the cross burnings in the movie,
a poster advertising the film displayed a hooded Klansman
riding a hooded horse, with his left hand holding the reins
of the horse and his right hand holding a burning cross above
his head. Wade 127. Soon thereafter, in November 1915,
the second Klan began.
From the inception of the second Klan, cross burnings
have been used to communicate both threats of violence and
messages of shared ideology. The first initiation ceremony
occurred on Stone Mountain near Atlanta, Georgia. While
a 40-foot cross burned on the mountain, the Klan members
took their oaths of loyalty. See Kennedy 163. This cross
burning was the second recorded instance in the United
States. The first known cross burning in the country had
occurred a little over one month before the Klan initiation,
when a Georgia mob celebrated the lynching of Leo Frank
by burning a “gigantic cross” on Stone Mountain that was
“visible throughout” Atlanta. Wade 144 (internal quotation
marks omitted).
The new Klan’s ideology did not differ much from that of
the first Klan. As one Klan publication emphasized, “We
avow the distinction between [the] races, . . . and we shall
ever be true to the faithful maintenance of White Supremacy
and will strenuously oppose any compromise thereof in any
and all things.” Id., at 147–148 (internal quotation marks
omitted). Violence was also an elemental part of this new
Klan. By September 1921, the New York World newspaper
documented 152 acts of Klan violence, including 4 murders,
41 floggings, and 27 tar-and-featherings. Wade 160.
Often, the Klan used cross burnings as a tool of intimida-
tion and a threat of impending violence. For example, in
1939 and 1940, the Klan burned crosses in front of syna-
gogues and churches. See Kennedy 175. After one cross
burning at a synagogue, a Klan member noted that if the
cross burning did not “shut the Jews up, we’ll cut a few

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throats and see what happens.” Ibid. (internal quotation
marks omitted). In Miami in 1941, the Klan burned four
crosses in front of a proposed housing project, declaring, “We
are here to keep niggers out of your town . . . . When the
law fails you, call on us.” Id., at 176 (internal quotation
marks omitted). And in Alabama in 1942, in “a whirlwind
climax to weeks of flogging and terror,” the Klan burned
crosses in front of a union hall and in front of a union leader’s
home on the eve of a labor election. Id., at 180. These
cross burnings embodied threats to people whom the Klan
deemed antithetical to its goals. And these threats had spe-
cial force given the long history of Klan violence.
The Klan continued to use cross burnings to intimidate
after World War II. In one incident, an African-American
“school teacher who recently moved his family into a block
formerly occupied only by whites asked the protection of city
police . . . after the burning of a cross in his front yard.”
Richmond News Leader, Jan. 21, 1949, p. 19, App. 312. And
after a cross burning in Suffolk, Virginia, during the late
1940’s, the Virginia Governor stated that he would “not allow
any of our people of any race to be subjected to terrorism or
intimidation in any form by the Klan or any other organiza-
tion.” D. Chalmers, Hooded Americanism: The History of
the Ku Klux Klan 333 (1980) (hereinafter Chalmers). These
incidents of cross burning, among others, helped prompt Vir-
ginia to enact its first version of the cross-burning statute
in 1950.
The decision of this Court in Brown v. Board of Edu-
cation, 347 U. S. 483 (1954), along with the civil rights
movement of the 1950’s and 1960’s, sparked another out-
break of Klan violence. These acts of violence included
bombings, beatings, shootings, stabbings, and mutilations.
See, e. g., Chalmers 349–350; Wade 302–303. Members of
the Klan burned crosses on the lawns of those associated
with the civil rights movement, assaulted the Freedom Rid-
ers, bombed churches, and murdered blacks as well as whites

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whom the Klan viewed as sympathetic toward the civil
rights movement.
Throughout the history of the Klan, cross burnings have
also remained potent symbols of shared group identity and
ideology. The burning cross became a symbol of the Klan
itself and a central feature of Klan gatherings. According
to the Klan constitution (called the kloran), the “fiery cross”
was the “emblem of that sincere, unselfish devotedness of
all klansmen to the sacred purpose and principles we have
espoused.” The Ku Klux Klan Hearings before the House
Committee on Rules, 67th Cong., 1st Sess., 114, Exh. G
(1921); see also Wade 419. And the Klan has often published
its newsletters and magazines under the name The Fiery
Cross. See id., at 226, 489.
At Klan gatherings across the country, cross burning
became the climax of the rally or the initiation. Posters
advertising an upcoming Klan rally often featured a Klan
member holding a cross. See N. MacLean, Behind the Mask
of Chivalry: The Making of the Second Ku Klux Klan 142–
143 (1994). Typically, a cross burning would start with a
prayer by the “Klavern” minister, followed by the singing of
Onward Christian Soldiers. The Klan would then light the
cross on fire, as the members raised their left arm toward
the burning cross and sang The Old Rugged Cross. Wade
185. Throughout the Klan’s history, the Klan continued to
use the burning cross in their ritual ceremonies.
For its own members, the cross was a sign of celebration
and ceremony. During a joint Nazi-Klan rally in 1940, the
proceeding concluded with the wedding of two Klan mem-
bers who “were married in full Klan regalia beneath a blaz-
ing cross.” Id., at 271. In response to antimasking bills
introduced in state legislatures after World War II, the Klan
burned crosses in protest. See Chalmers 340. On March
26, 1960, the Klan engaged in rallies and cross burnings
throughout the South in an attempt to recruit 10 million
members. See Wade 305. Later in 1960, the Klan became

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an issue in the third debate between Richard Nixon and John
Kennedy, with both candidates renouncing the Klan. After
this debate, the Klan reiterated its support for Nixon by
burning crosses. See id., at 309. And cross burnings fea-
tured prominently in Klan rallies when the Klan attempted
to move toward more nonviolent tactics to stop integration.
See id., at 323; cf. Chalmers 368–369, 371–372, 380, 384. In
short, a burning cross has remained a symbol of Klan ideol-
ogy and of Klan unity.
To this day, regardless of whether the message is a politi-
cal one or whether the message is also meant to intimidate,
the burning of a cross is a “symbol of hate.” Capitol Square
Review and Advisory Bd. v. Pinette, 515 U. S., at 771
(Thomas, J., concurring). And while cross burning some-
times carries no intimidating message, at other times the
intimidating message is the only message conveyed. For
example, when a cross burning is directed at a particular
person not affiliated with the Klan, the burning cross often
serves as a message of intimidation, designed to inspire in
the victim a fear of bodily harm. Moreover, the history of
violence associated with the Klan shows that the possibility
of injury or death is not just hypothetical. The person who
burns a cross directed at a particular person often is mak-
ing a serious threat, meant to coerce the victim to comply
with the Klan’s wishes unless the victim is willing to risk
the wrath of the Klan. Indeed, as the cases of respondents
Elliott and O’Mara indicate, individuals without Klan affilia-
tion who wish to threaten or menace another person some-
times use cross burning because of this association between
a burning cross and violence.
In sum, while a burning cross does not inevitably convey
a message of intimidation, often the cross burner intends
that the recipients of the message fear for their lives. And
when a cross burning is used to intimidate, few if any mes-
sages are more powerful.

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III
A
The First Amendment, applicable to the States through
the Fourteenth Amendment, provides that “Congress shall
make no law . . . abridging the freedom of speech.” The
hallmark of the protection of free speech is to allow “free
trade in ideas”—even ideas that the overwhelming majority
of people might find distasteful or discomforting. Abrams
v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissent-
ing); see also Texas v. Johnson, 491 U. S. 397, 414 (1989) (“If
there is a bedrock principle underlying the First Amend-
ment, it is that the government may not prohibit the expres-
sion of an idea simply because society finds the idea itself
offensive or disagreeable”). Thus, the First Amendment
“ordinarily” denies a State “the power to prohibit dissemina-
tion of social, economic and political doctrine which a vast
majority of its citizens believes to be false and fraught with
evil consequence.” Whitney v. California, 274 U. S. 357,
374 (1927) (Brandeis, J., concurring). The First Amendment
affords protection to symbolic or expressive conduct as well
as to actual speech. See, e. g., R. A. V. v. City of St. Paul,
505 U. S., at 382; Texas v. Johnson, supra, at 405–406; United
States v. O’Brien, 391 U. S. 367, 376–377 (1968); Tinker v.
Des Moines Independent Community School Dist., 393 U. S.
503, 505 (1969).
The protections afforded by the First Amendment, how-
ever, are not absolute, and we have long recognized that
the government may regulate certain categories of expres-
sion consistent with the Constitution. See, e. g., Chaplinsky
v. New Hampshire, 315 U. S. 568, 571–572 (1942) (“There are
certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which has never been
thought to raise any Constitutional problem”). The First
Amendment permits “restrictions upon the content of speech
in a few limited areas, which are ‘of such slight social value

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as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order
and morality.’ ” R. A. V. v. City of St. Paul, supra, at 382–
383 (quoting Chaplinsky v. New Hampshire, supra, at 572).
Thus, for example, a State may punish those words “which
by their very utterance inflict injury or tend to incite an
immediate breach of the peace.” Chaplinsky v. New Hamp-
shire, supra, at 572; see also R. A. V. v. City of St. Paul,
supra, at 383 (listing limited areas where the First Amend-
ment permits restrictions on the content of speech). We
have consequently held that fighting words—“those person-
ally abusive epithets which, when addressed to the ordinary
citizen, are, as a matter of common knowledge, inherently
likely to provoke violent reaction”—are generally proscrib-
able under the First Amendment. Cohen v. California, 403
U. S. 15, 20 (1971); see also Chaplinsky v. New Hampshire,
supra, at 572. Furthermore, “the constitutional guarantees
of free speech and free press do not permit a State to forbid
or proscribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or produc-
ing imminent lawless action and is likely to incite or produce
such action.” Brandenburg v. Ohio, 395 U. S. 444, 447 (1969)
(per curiam). And the First Amendment also permits a
State to ban a “true threat.” Watts v. United States, 394
U. S. 705, 708 (1969) (per curiam) (internal quotation marks
omitted); accord, R. A. V. v. City of St. Paul, supra, at 388
(“[T]hreats of violence are outside the First Amendment”);
Madsen v. Women’s Health Center, Inc., 512 U. S. 753, 774
(1994); Schenck v. Pro-Choice Network of Western N. Y., 519
U. S. 357, 373 (1997).
“True threats” encompass those statements where the
speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular
individual or group of individuals. See Watts v. United
States, supra, at 708 (“political hyberbole” is not a true
threat); R. A. V. v. City of St. Paul, 505 U. S., at 388. The

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speaker need not actually intend to carry out the threat.
Rather, a prohibition on true threats “protect[s] individuals
from the fear of violence” and “from the disruption that fear
engenders,” in addition to protecting people “from the possi-
bility that the threatened violence will occur.” Ibid. In-
timidation in the constitutionally proscribable sense of the
word is a type of true threat, where a speaker directs a
threat to a person or group of persons with the intent of
placing the victim in fear of bodily harm or death. Respond-
ents do not contest that some cross burnings fit within this
meaning of intimidating speech, and rightly so. As noted
in Part II, supra, the history of cross burning in this coun-
try shows that cross burning is often intimidating, intended
to create a pervasive fear in victims that they are a target
of violence.
B
The Supreme Court of Virginia ruled that in light of
R. A. V. v. City of St. Paul, supra, even if it is constitutional
to ban cross burning in a content-neutral manner, the Vir-
ginia cross-burning statute is unconstitutional because it
discriminates on the basis of content and viewpoint. 262
Va., at 771–776, 553 S. E. 2d, at 742–745. It is true, as the
Supreme Court of Virginia held, that the burning of a cross
is symbolic expression. The reason why the Klan burns a
cross at its rallies, or individuals place a burning cross on
someone else’s lawn, is that the burning cross represents
the message that the speaker wishes to communicate. Indi-
viduals burn crosses as opposed to other means of communi-
cation because cross burning carries a message in an effec-
tive and dramatic manner.2
2 Justice Thomas argues in dissent that cross burning is “conduct, not
expression.” Post, at 394. While it is of course true that burning a cross
is conduct, it is equally true that the First Amendment protects symbolic
conduct as well as pure speech. See supra, at 358. As Justice Thomas
has previously recognized, a burning cross is a “symbol of hate,” and a

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The fact that cross burning is symbolic expression, how-
ever, does not resolve the constitutional question. The Su-
preme Court of Virginia relied upon R. A. V. v. City of
St. Paul, supra, to conclude that once a statute discriminates
on the basis of this type of content, the law is unconstitu-
tional. We disagree.
In R. A. V., we held that a local ordinance that banned
certain symbolic conduct, including cross burning, when done
with the knowledge that such conduct would “ ‘arouse anger,
alarm or resentment in others on the basis of race, color,
creed, religion or gender’ ” was unconstitutional. Id., at 380
(quoting the St. Paul Bias-Motivated Crime Ordinance,
St. Paul, Minn., Legis. Code § 292.02 (1990)). We held that
the ordinance did not pass constitutional muster because it
discriminated on the basis of content by targeting only those
individuals who “provoke violence” on a basis specified in
the law. 505 U. S., at 391. The ordinance did not cover
“[t]hose who wish to use ‘fighting words’ in connection with
other ideas—to express hostility, for example, on the basis
of political affiliation, union membership, or homosexuality.”
Ibid. This content-based discrimination was unconstitu-
tional because it allowed the city “to impose special prohibi-
tions on those speakers who express views on disfavored
subjects.” Ibid.
We did not hold in R. A. V. that the First Amendment
prohibits all forms of content-based discrimination within a
proscribable area of speech. Rather, we specifically stated
that some types of content discrimination did not violate the
First Amendment:
“When the basis for the content discrimination consists
entirely of the very reason the entire class of speech
at issue is proscribable, no significant danger of idea or
“a symbol of white supremacy.” Capitol Square Review and Advisory
Bd. v. Pinette, 515 U. S. 753, 770–771 (1995) (concurring opinion).

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viewpoint discrimination exists. Such a reason, having
been adjudged neutral enough to support exclusion of
the entire class of speech from First Amendment protec-
tion, is also neutral enough to form the basis of distinc-
tion within the class.” Id., at 388.
Indeed, we noted that it would be constitutional to ban
only a particular type of threat: “[T]he Federal Government
can criminalize only those threats of violence that are
directed against the President . . . since the reasons why
threats of violence are outside the First Amendment . . .
have special force when applied to the person of the Presi-
dent.” Ibid. And a State may “choose to prohibit only that
obscenity which is the most patently offensive in its pruri-
ence—i. e., that which involves the most lascivious displays
of sexual activity.” Ibid. (emphasis in original). Conse-
quently, while the holding of R. A. V. does not permit a State
to ban only obscenity based on “offensive political mes-
sages,” ibid., or “only those threats against the President
that mention his policy on aid to inner cities,” ibid., the First
Amendment permits content discrimination “based on the
very reasons why the particular class of speech at issue . . .
is proscribable,” id., at 393.
Similarly, Virginia’s statute does not run afoul of the First
Amendment insofar as it bans cross burning with intent to
intimidate. Unlike the statute at issue in R. A. V., the
Virginia statute does not single out for opprobrium only that
speech directed toward “one of the specified disfavored
topics.” Id., at 391. It does not matter whether an individ-
ual burns a cross with intent to intimidate because of the
victim’s race, gender, or religion, or because of the victim’s
“political affiliation, union membership, or homosexuality.”
Ibid. Moreover, as a factual matter it is not true that cross
burners direct their intimidating conduct solely to racial or
religious minorities. See, e. g., supra, at 355 (noting the in-
stances of cross burnings directed at union members); State
v. Miller, 6 Kan. App. 2d 432, 629 P. 2d 748 (1981) (describing

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the case of a defendant who burned a cross in the yard of
the lawyer who had previously represented him and who was
currently prosecuting him). Indeed, in the case of Elliott
and O’Mara, it is at least unclear whether the respondents
burned a cross due to racial animus. See 262 Va., at 791, 553
S. E. 2d, at 753 (Hassell, J., dissenting) (noting that “these
defendants burned a cross because they were angry that
their neighbor had complained about the presence of a fire-
arm shooting range in the Elliott’s yard, not because of any
racial animus”).
The First Amendment permits Virginia to outlaw cross
burnings done with the intent to intimidate because burning
a cross is a particularly virulent form of intimidation. In-
stead of prohibiting all intimidating messages, Virginia may
choose to regulate this subset of intimidating messages in
light of cross burning’s long and pernicious history as a
signal of impending violence. Thus, just as a State may reg-
ulate only that obscenity which is the most obscene due to
its prurient content, so too may a State choose to prohibit
only those forms of intimidation that are most likely to in-
spire fear of bodily harm. A ban on cross burning carried
out with the intent to intimidate is fully consistent with
our holding in R. A. V. and is proscribable under the First
Amendment.
IV
The Supreme Court of Virginia ruled in the alternative
that Virginia’s cross-burning statute was unconstitutionally
overbroad due to its provision stating that “[a]ny such burn-
ing of a cross shall be prima facie evidence of an intent to
intimidate a person or group of persons.” Va. Code Ann.
§ 18.2–423 (1996). The Commonwealth added the prima
facie provision to the statute in 1968. The court below did
not reach whether this provision is severable from the rest of
the cross-burning statute under Virginia law. See § 1–17.1
(“The provisions of all statutes are severable unless . . . it is

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apparent that two or more statutes or provisions must oper-
ate in accord with one another”). In this Court, as in the
Supreme Court of Virginia, respondents do not argue that
the prima facie evidence provision is unconstitutional as ap-
plied to any one of them. Rather, they contend that the
provision is unconstitutional on its face.
The Supreme Court of Virginia has not ruled on the mean-
ing of the prima facie evidence provision. It has, however,
stated that “the act of burning a cross alone, with no evi-
dence of intent to intimidate, will nonetheless suffice for ar-
rest and prosecution and will insulate the Commonwealth
from a motion to strike the evidence at the end of its case-in-
chief.” 262 Va., at 778, 553 S. E. 2d, at 746. The jury in
the case of Richard Elliott did not receive any instruction on
the prima facie evidence provision, and the provision was not
an issue in the case of Jonathan O’Mara because he pleaded
guilty. The court in Barry Black’s case, however, instructed
the jury that the provision means: “The burning of a cross,
by itself, is sufficient evidence from which you may infer the
required intent.” App. 196. This jury instruction is the
same as the Model Jury Instruction in the Commonwealth of
Virginia. See Virginia Model Jury Instructions, Criminal,
Instruction No. 10.250 (1998 and Supp. 2001).
The prima facie evidence provision, as interpreted by the
jury instruction, renders the statute unconstitutional. Be-
cause this jury instruction is the Model Jury Instruction, and
because the Supreme Court of Virginia had the opportunity
to expressly disavow the jury instruction, the jury instruc-
tion’s construction of the prima facie provision “is a ruling
on a question of state law that is as binding on us as though
the precise words had been written into” the statute. E. g.,
Terminiello v. Chicago, 337 U. S. 1, 4 (1949) (striking down
an ambiguous statute on facial grounds based upon the
instruction given to the jury); see also New York v. Ferber,
458 U. S. 747, 768, n. 21 (1982) (noting that Terminiello in-
volved a facial challenge to the statute); Secretary of State

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of Md. v. Joseph H. Munson Co., 467 U. S. 947, 965, n. 13
(1984); Note, The First Amendment Overbreadth Doctrine,
83 Harv. L. Rev. 844, 845–846, n. 8 (1970); Monaghan, Over-
breadth, 1981 S. Ct. Rev. 1, 10–12; Blakey & Murray, Threats,
Free Speech, and the Jurisprudence of the Federal Criminal
Law, 2002 B. Y. U. L. Rev. 829, 883, n. 133. As construed by
the jury instruction, the prima facie provision strips away
the very reason why a State may ban cross burning with
the intent to intimidate. The prima facie evidence provision
permits a jury to convict in every cross-burning case in
which defendants exercise their constitutional right not to
put on a defense. And even where a defendant like Black
presents a defense, the prima facie evidence provision makes
it more likely that the jury will find an intent to intimidate
regardless of the particular facts of the case. The provision
permits the Commonwealth to arrest, prosecute, and convict
a person based solely on the fact of cross burning itself.
It is apparent that the provision as so interpreted “ ‘would
create an unacceptable risk of the suppression of ideas.’ ”
Secretary of State of Md. v. Joseph H. Munson Co., supra,
at 965, n. 13 (quoting Members of City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 797 (1984)).
The act of burning a cross may mean that a person is engag-
ing in constitutionally proscribable intimidation. But that
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 instruction, the
provision chills constitutionally protected political speech
because of the possibility that the Commonwealth will prose-
cute—and potentially convict—somebody engaging only in
lawful political speech at the core of what the First Amend-
ment is designed to protect.
As the history of cross burning indicates, a burning cross
is not always intended to intimidate. Rather, sometimes the
cross burning is a statement of ideology, a symbol of group

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solidarity. It is a ritual used at Klan gatherings, and it is
used to represent the Klan itself. Thus, “[b]urning a cross
at a political rally would almost certainly be protected ex-
pression.” R. A. V. v. St. Paul, 505 U. S., at 402, n. 4 (White,
J., concurring in judgment) (citing Brandenburg v. Ohio, 395
U. S., at 445). Cf. National Socialist Party of America v.
Skokie, 432 U. S. 43 (1977) (per curiam). Indeed, occasion-
ally a person who burns a cross does not intend to express
either a statement of ideology or intimidation. Cross burn-
ings have appeared in movies such as Mississippi Burning,
and in plays such as the stage adaptation of Sir Walter
Scott’s The Lady of the Lake.
The prima facie provision makes no effort to distinguish
among these different types of cross burnings. It does not
distinguish between a cross burning done with the purpose
of creating 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 of like-minded believ-
ers. It allows a jury to treat a cross burning on the prop-
erty of another with the owner’s acquiescence in the same
manner as a cross burning on the property of another with-
out the owner’s permission. To this extent I agree with
Justice Souter that the 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 burn-
ing.” Post, at 385 (opinion concurring in judgment in part
and dissenting in part).
It may be true that a cross burning, even at a political
rally, arouses a sense of anger or hatred among the vast ma-
jority of citizens who see a burning cross. But this sense of
anger or hatred is not sufficient to ban all cross burnings.
As Gerald Gunther has stated, “The lesson I have drawn

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from my childhood in Nazi Germany and my happier adult
life in this country is the need to walk the sometimes difficult
path of denouncing the bigot’s hateful ideas with all my
power, yet at the same time challenging any community’s
attempt to suppress hateful ideas by force of law.” Casper,
Gerry, 55 Stan. L. Rev. 647, 649 (2002) (internal quotation
marks omitted). The prima facie evidence provision in this
case ignores all of the contextual factors that are necessary
to decide whether a particular cross burning is intended
to intimidate. The First Amendment does not permit such
a shortcut.
For these reasons, the prima facie evidence provision, as
interpreted through the jury instruction and as applied in
Barry Black’s case, is unconstitutional on its face. We rec-
ognize that the Supreme Court of Virginia has not authorita-
tively interpreted the meaning of the prima facie evidence
provision. Unlike Justice Scalia, we refuse to speculate
on whether any interpretation of the prima facie evidence
provision would satisfy the First Amendment. Rather, all
we hold is that because of the interpretation of the prima
facie evidence provision given by the jury instruction, the
provision makes the statute facially invalid at this point.
We also recognize the theoretical possibility that the court,
on remand, could interpret the provision in a manner differ-
ent from that so far set forth in order to avoid the constitu-
tional objections we have described. We leave open that
possibility. We also leave open the possibility that the pro-
vision is severable, and if so, whether Elliott and O’Mara
could be retried under § 18.2–423.
V
With respect to Barry Black, we agree with the Supreme
Court of Virginia that his conviction cannot stand, and we
affirm the judgment of the Supreme Court of Virginia.
With respect to Elliott and O’Mara, we vacate the judgment

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of the Supreme Court of Virginia, and remand the case for
further proceedings.
It is so ordered.
Justice Stevens, concurring.
Cross burning with “an intent to intimidate,” Va. Code
Ann. § 18.2–423 (1996), unquestionably qualifies as the kind
of threat that is unprotected by the First Amendment. For
the reasons stated in the separate opinions that Justice
White and I wrote in R. A. V. v. St. Paul, 505 U. S. 377 (1992),
that simple proposition provides a sufficient basis for uphold-
ing the basic prohibition in the Virginia statute even though
it does not cover other types of threatening expressive con-
duct. With this observation, I join Justice O’Connor’s
opinion.
Justice Scalia, with whom Justice Thomas joins as to
Parts I and II, concurring in part, concurring in the judg-
ment in part, and dissenting in part.
I agree with the Court that, under our decision in R. A. V.
v. St. Paul, 505 U. S. 377 (1992), a State may, without infring-
ing the First Amendment, prohibit cross burning carried out
with the intent to intimidate. Accordingly, I join Parts
I–III of the Court’s opinion. I also agree that we should
vacate and remand the judgment of the Virginia Supreme
Court so that that court can have an opportunity authorita-
tively to construe the prima-facie-evidence provision of Va.
Code Ann. § 18.2–423 (1996). I write separately, however,
to describe what I believe to be the correct interpretation of
§ 18.2–423, and to explain why I believe there is no justifi-
cation for the plurality’s apparent decision to invalidate that
provision on its face.
I
Section 18.2–423 provides that the burning of a cross in
public view “shall be prima facie evidence of an intent to
intimidate.” In order to determine whether this component

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of the statute violates the Constitution, it is necessary, first,
to establish precisely what the presentation of prima facie
evidence accomplishes.
Typically, “prima facie evidence” is defined as:
“Such evidence as, in the judgment of the law, is suffi-
cient to establish a given fact . . . and which if not rebut-
ted or contradicted, will remain sufficient. [Such evi-
dence], if unexplained or uncontradicted, is sufficient to
sustain a judgment in favor of the issue which it sup-
ports, but [it] may be contradicted by other evidence.”
Black’s Law Dictionary 1190 (6th ed. 1990).
The Virginia Supreme Court has, in prior cases, embraced
this canonical understanding of the pivotal statutory lan-
guage. E. g., Babbitt v. Miller, 192 Va. 372, 379–380, 64 S. E.
2d 718, 722 (1951) (“Prima facie evidence is evidence which
on its first appearance is sufficient to raise a presumption of
fact or establish the fact in question unless rebutted”). For
example, in Nance v. Commonwealth, 203 Va. 428, 124 S. E.
2d 900 (1962), the Virginia Supreme Court interpreted a law
of the Commonwealth that (1) prohibited the possession of
certain “burglarious” tools “with intent to commit burglary,
robbery, or larceny . . . ,” and (2) provided that “[t]he posses-
sion of such burglarious tools . . . shall be prima facie evi-
dence of an intent to commit burglary, robbery or larceny.”
Va. Code Ann. § 18.1–87 (1960). The court explained that
the prima-facie-evidence provision “cuts off no defense nor
interposes any obstacle to a contest of the facts, and ‘relieves
neither the court nor the jury of the duty to determine all of
the questions of fact from the weight of the whole evidence.’ ”
Nance v. Commonwealth, 203 Va., at 432, 124 S. E. 2d, at
903–904; see also ibid., 124 S. E. 2d, at 904 (noting that the
prima-facie-evidence provision “ ‘is merely a rule of evidence
and not the determination of a fact . . .’ ”).
The established meaning in Virginia, then, of the term
“prima facie evidence” appears to be perfectly orthodox: It

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is evidence that suffices, on its own, to establish a particular
fact. But it is hornbook law that this is true only to the
extent that the evidence goes unrebutted. “Prima facie evi-
dence of a fact is such evidence as, in judgment of law, is
sufficient to establish the fact; and, if not rebutted, remains
sufficient for the purpose.” 7B Michie’s Jurisprudence of
Virginia and West Virginia § 32 (1998) (emphasis added).
To be sure, Virginia is entirely free, if it wishes, to discard
the canonical understanding of the term “prima facie evi-
dence.” Its courts are also permitted to interpret the
phrase in different ways for purposes of different statutes.
In this case, however, the Virginia Supreme Court has done
nothing of the sort. To the extent that tribunal has spoken
to the question of what “prima facie evidence” means for
purposes of § 18.2–423, it has not deviated a whit from its
prior practice and from the ordinary legal meaning of these
words. Rather, its opinion explained that under § 18.2–423,
“the act of burning a cross alone, with no evidence of intent
to intimidate, will . . . 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.” 262 Va. 764, 778,
553 S. E. 2d 738, 746 (2001). Put otherwise, where the Com-
monwealth has demonstrated through its case in chief that
the defendant burned a cross in public view, this is sufficient,
at least until the defendant has come forward with rebuttal
evidence, to create a jury issue with respect to the intent
element of the offense.
It is important to note that the Virginia Supreme Court
did not suggest (as did the trial court’s jury instructions in
respondent Black’s case, see infra, at 377) that a jury may,
in light of the prima-facie-evidence provision, ignore any re-
buttal evidence that has been presented and, solely on the
basis of a showing that the defendant burned a cross, find
that he intended to intimidate. Nor, crucially, did that court
say that the presentation of prima facie evidence is always
sufficient to get a case to a jury, i. e., that a court may never

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direct a verdict for a defendant who has been shown to have
burned a cross in public view, even if, by the end of trial,
the defendant has presented rebuttal evidence. Instead,
according to the Virginia Supreme Court, the effect of the
prima-facie-evidence provision is far more limited. It suf-
fices to “insulate the Commonwealth from a motion to strike
the evidence at the end of its case-in-chief,” but it does noth-
ing more. 262 Va., at 778, 553 S. E. 2d, at 746 (emphasis
added). That is, presentation of evidence that a defendant
burned a cross in public view is automatically sufficient, on
its own, to support an inference that the defendant intended
to intimidate only until the defendant comes forward with
some evidence in rebuttal.
II
The question presented, then, is whether, given this un-
derstanding of the term “prima facie evidence,” the cross-
burning statute is constitutional. The Virginia Supreme
Court answered that question in the negative. It stated
that “§ 18.2–423 sweeps within its ambit for arrest and pros-
ecution, both protected and unprotected speech.” Ibid.
“The enhanced probability of prosecution under the statute
chills the expression of protected speech sufficiently to ren-
der the statute overbroad.” Id., at 777, 553 S. E. 2d, at 746.
This approach toward overbreadth analysis is unprece-
dented. We have never held that the mere threat that indi-
viduals who engage in protected conduct will be subject to
arrest and prosecution suffices to render a statute overbroad.
Rather, our overbreadth jurisprudence has consistently fo-
cused on whether the prohibitory terms of a particular stat-
ute extend to protected conduct; that is, we have inquired
whether individuals who engage in protected conduct can be
convicted under a statute, not whether they might be subject
to arrest and prosecution. E. g., Houston v. Hill, 482 U. S.
451, 459 (1987) (a statute “that make[s] unlawful a substan-
tial amount of constitutionally protected conduct may be held
facially invalid” (emphasis added)); Grayned v. City of Rock-

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ford, 408 U. S. 104, 114 (1972) (a statute may be overbroad
“if in its reach it prohibits constitutionally protected con-
duct” (emphasis added)); R. A. V. v. St. Paul, 505 U. S., at
397 (White, J., concurring in judgment) (deeming the ordi-
nance at issue “fatally overbroad because it criminalizes . . .
expression protected by the First Amendment” (emphasis
added)).
Unwilling to embrace the Virginia Supreme Court’s novel
mode of overbreadth analysis, today’s opinion properly fo-
cuses on the question of who may be convicted, rather than
who may be arrested and prosecuted, under § 18.2–423.
Thus, it notes that “[t]he prima facie evidence provision per-
mits a jury to convict in every cross-burning case in which
defendants exercise their constitutional right not to put on a
defense.” 1 Ante, at 365 (emphasis added). In such cases,
the plurality explains, “[t]he provision permits the Common-
wealth to arrest, prosecute, and convict a person based
solely on the fact of cross burning itself.” Ibid. (emphasis
added). And this, according to the plurality, is constitution-
ally problematic because “a burning cross is not always in-
tended to intimidate,” and nonintimidating cross burning
cannot be prohibited. Ibid. In particular, the opinion
notes that cross burning may serve as “a statement of ideol-
ogy” or “a symbol of group solidarity” at Ku Klux Klan ritu-
als, and may even serve artistic purposes as in the case of
the film Mississippi Burning. Ante, at 365–366.
The plurality is correct in all of this—and it means that
some individuals who engage in protected speech may, be-
1 The plurality also asserts that “even where a defendant like Black pre-
sents a defense, the prima facie evidence provision makes it more likely
that the jury will find an intent to intimidate regardless of the particular
facts of the case.” Ante, at 365. There is no basis for this assertion.
The Virginia Supreme Court’s opinion in Nance v. Commonwealth, 203
Va. 428, 432, 124 S. E. 2d 900, 903–904 (1962), states, in no uncertain terms,
that the presentation of a prima facie case “ ‘relieves neither the court nor
the jury of the duty to determine all of the questions of fact from the
weight of the whole evidence.’ ” (Emphasis added.)

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cause of the prima-facie-evidence provision, be subject to
conviction. Such convictions, assuming they are unconstitu-
tional, could be challenged on a case-by-case basis. The plu-
rality, however, with little in the way of explanation, leaps
to the conclusion that the possibility of such convictions jus-
tifies facial invalidation of the statute.
In deeming § 18.2–423 facially invalid, the plurality pre-
sumably means to rely on some species of overbreadth doc-
trine.2 But it must be a rare species indeed. We have
noted that “[i]n a facial challenge to the overbreadth and
vagueness of a law, a court’s first task is to determine
whether the enactment reaches a substantial amount of con-
stitutionally protected conduct.” Hoffman Estates v. Flip-
side, Hoffman Estates, Inc., 455 U. S. 489, 494 (1982). If one
looks only to the core provision of § 18.2–423—“[i]t shall be
unlawful for any person or persons, with the intent of intim-
idating any person or group of persons, to burn, or cause to
be burned, a cross . . .”—it appears not to capture any pro-
tected conduct; that language is limited in its reach to con-
2 Overbreadth was, of course, the framework of analysis employed by
the Virginia Supreme Court. See 262 Va. 764, 777–778, 553 S. E. 2d 738,
745–746 (2001) (examining the prima-facie-evidence provision in a section
labeled “OVERBREADTH ANALYSIS” and holding that the provision
“is overbroad”). Likewise, in their submissions to this Court, the parties’
analyses of the prima-facie-evidence provision focus on the question of
overbreadth. Brief for Petitioner 41–50 (confining its discussion of the
prima-facie-evidence provision to a section titled “THE VIRGINIA STAT-
UTE IS NOT OVERBROAD”); Brief for Respondents 39–41 (arguing that
“[t]he prima facie evidence provision . . . render[s] [the statute] over-
broad”); Reply Brief for Petitioner 13–20 (dividing its discussion of the
prima-facie-evidence provision into sections titled “There Is No Real
Overbreadth” and “There Is No Substantial Overbreadth”). This reliance
on overbreadth doctrine is understandable. This Court has made clear
that to succeed in a facial challenge without relying on overbreadth doc-
trine, “the challenger must establish that no set of circumstances exists
under which the Act would be valid.” United States v. Salerno, 481 U. S.
739, 745 (1987). As the Court’s opinion concedes, some of the speech cov-
ered by § 18.2–423 can constitutionally be proscribed, ante, at 363.

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duct which a State is, under the Court’s holding, ante, at
363, allowed to prohibit. In order to identify any protected
conduct that is affected by Virginia’s cross-burning law, the
plurality is compelled to focus not on the statute’s core prohi-
bition, but on the prima-facie-evidence provision, and hence
on the process through which the prohibited conduct may be
found by a jury.3 And even in that context, the plurality
cannot claim that improper convictions will result from the
operation of the prima-facie-evidence provision alone. As
the plurality concedes, the only persons who might imper-
missibly be convicted by reason of that provision are those
who adopt a particular trial strategy, to wit, abstaining from
the presentation of a defense.
The plurality is thus left with a strikingly attenuated ar-
gument to support the claim that Virginia’s cross-burning
statute is facially invalid. The class of persons that the plu-
rality contemplates could impermissibly be convicted under
§ 18.2–423 includes only those individuals who (1) burn a
cross in public view, (2) do not intend to intimidate, (3) are
nonetheless charged and prosecuted, and (4) refuse to pres-
ent a defense. Ante, at 365 (“The prima facie evidence pro-
vision permits a jury to convict in every cross-burning case
in which defendants exercise their constitutional right not to
put on a defense”).
Conceding (quite generously, in my view) that this class of
persons exists, it cannot possibly give rise to a viable facial
challenge, not even with the aid of our First Amendment
3 Unquestionably, the process through which elements of a criminal of-
fense are established in a jury trial may raise serious constitutional con-
cerns. Typically, however, such concerns sound in due process, not First
Amendment overbreadth. E. g., County Court of Ulster Cty. v. Allen,
442 U. S. 140, 156–157 (1979); Barnes v. United States, 412 U. S. 837, 838
(1973); In re Winship, 397 U. S. 358, 359 (1970). Respondents in this case
have not challenged § 18.2–423 under the Due Process Clause, and neither
the plurality nor the Virginia Supreme Court relies on due process in
declaring the statute invalid.

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overbreadth doctrine. For this Court has emphasized re-
peatedly that “where a statute regulates expressive conduct,
the scope of the statute does not render it unconstitutional
unless its overbreadth is not only real, but substantial as
well, judged in relation to the statute’s plainly legitimate
sweep.” Osborne v. Ohio, 495 U. S. 103, 112 (1990) (internal
quotation marks omitted; emphasis added). See also Hous-
ton v. Hill, 482 U. S., at 458 (“Only a statute that is substan-
tially overbroad may be invalidated on its face”); Members
of City Council of Los Angeles v. Taxpayers for Vincent, 466
U. S. 789, 800 (1984) (“[T]he mere fact that one can conceive
of some impermissible applications of a statute is not suffi-
cient to render it susceptible to an overbreadth challenge”);
New York v. Ferber, 458 U. S. 747, 771 (1982) (“[A] law should
not be invalidated for overbreadth unless it reaches a sub-
stantial number of impermissible applications . . .”). The
notion that the set of cases identified by the plurality in
which convictions might improperly be obtained is suffi-
ciently large to render the statute substantially overbroad
is fanciful. The potential improper convictions of which the
plurality complains are more appropriately classified as the
sort of “marginal applications” of a statute in light of which
“facial invalidation is inappropriate.” Parker v. Levy, 417
U. S. 733, 760 (1974).4
4 Confronted with the incontrovertible fact that this statute easily
passes overbreadth analysis, the plurality is driven to the truly startling
assertion that a statute which is not invalid in all of its applications may
nevertheless be facially invalidated even if it is not overbroad. The only
expression of that proposition that the plurality can find in our jurispru-
dence appears in footnote dictum in the 5-to-4 opinion in Secretary of State
of Md. v. Joseph H. Munson Co., 467 U. S. 947, 965–966, n. 13 (1984). See
id., at 975 (Rehnquist, J., joined by Burger, C. J., and Powell and O’Con-
nor, JJ., dissenting). Stare decisis cannot explain the newfound affection
for this errant doctrine (even if stare decisis applied to dictum), because
the holding of a later opinion ( joined by six Justices) flatly repudiated it.
See United States v. Salerno, supra, at 745 (Rehnquist, C. J., joined by

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Perhaps more alarming, the plurality concedes, ante, at 364,
365, that its understanding of the prima-facie-evidence provi-
sion is premised on the jury instructions given in respondent
Black’s case. This would all be well and good were it not
for the fact that the plurality facially invalidates § 18.2–423.
Ante, at 367 (“[T]he prima facie evidence provision, as inter-
preted through the jury instruction and as applied in Barry
Black’s case, is unconstitutional on its face”). I am aware
of no case—and the plurality cites none—in which we have
facially invalidated an ambiguous statute on the basis of a
constitutionally troubling jury instruction.5 And it is alto-
White, Blackmun, Powell, O’Connor, and Scalia, JJ.) (to succeed in a
facial challenge without relying on overbreadth doctrine, “the challenger
must establish that no set of circumstances exists under which the Act
would be valid”).
Even if I were willing, as the plurality apparently is, to ignore our repu-
diation of the Munson dictum, that case provides no foundation whatever
for facially invalidating a statute under the conditions presented here.
Our willingness facially to invalidate the statute in Munson without reli-
ance on First Amendment overbreadth was premised on our conclusion
that the challenged provision was invalid in all of its applications. We
explained that “there is no core of easily identifiable and constitutionally
proscribable conduct that the statute prohibits.” Munson, 467 U. S., at
965–966. And we stated that “[t]he flaw in the statute is not simply that
it includes within its sweep some impermissible applications, but that in
all its applications it operates on a fundamentally mistaken premise that
high solicitation costs are an accurate measure of fraud.” Id., at 966.
Unless the Court is prepared to abandon a contention that it takes great
pains to establish—that “the history of cross burning in this country
shows that cross burning is often intimidating, intended to create a perva-
sive fear in victims that they are a target of violence,” ante, at 360—it is
difficult to see how Munson has any bearing on the constitutionality of
the prima-facie-evidence provision.
5 The plurality’s reliance on Terminiello v. Chicago, 337 U. S. 1 (1949),
is mistaken. In that case the Court deemed only the jury instruction,
rather than the ordinance under review, to be constitutionally infirm. To
be sure, it held that such a jury instruction could never support a constitu-
tionally valid conviction, but that is quite different from holding the or-
dinance to be facially invalid. Insofar as the ordinance was concerned,
Terminiello made repeated references to the as-applied nature of the

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gether unsurprising that there is no precedent for such a
holding. For where state law is ambiguous, treating jury
instructions as binding interpretations would cede an enor-
mous measure of power over state law to trial judges. A
single judge’s idiosyncratic reading of a state statute could
trigger its invalidation. In this case, the troubling instruc-
tion—“The burning of a cross, by itself, is sufficient evidence
from which you may infer the required intent,” App. 196—
was taken verbatim from Virginia’s Model Jury Instructions.
But these Model Instructions have been neither promulgated
by the legislature nor formally adopted by the Virginia Su-
preme Court. And it is hornbook law, in Virginia as else-
where, that “[p]roffered instructions which do not correctly
state the law . . . are erroneous and should be refused.” 10A
Michie’s Jurisprudence of Virginia and West Virginia, In-
structions § 15, p. 35 (Supp. 2000).
The plurality’s willingness to treat this jury instruction as
binding (and to strike down § 18.2–423 on that basis) would
be shocking enough had the Virginia Supreme Court offered
no guidance as to the proper construction of the prima-facie-
evidence provision. For ordinarily we would decline to pass
upon the constitutionality of an ambiguous state statute until
that State’s highest court had provided a binding construc-
challenge. Id., at 3 (noting that the defendant “maintained at all times
that the ordinance as applied to his conduct violated his right of free
speech . . .” (emphasis added)); id., at 5 (noting that “[a]s construed and
applied [the provision] at least contains parts that are unconstitutional”
(emphasis added)); id., at 6 (“The pinch of the statute is in its application”
(emphasis added)); ibid. (“The record makes clear that petitioner at all
times challenged the constitutionality of the ordinance as construed and
applied to him” (emphasis added)). See also Isserles, Overcoming Over-
breadth: Facial Challenges and the Valid Rule Requirement, 48 Am.
U. L. Rev. 359, 433, n. 333 (1998) (characterizing Terminiello as “adopting
a court’s jury instruction as an authoritative narrowing construction of
a breach of the peace ordinance but ultimately confining its decision to
overturning the defendant’s conviction rather than invalidating the statute
on its face”).

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tion. E. g., Arizonans for Official English v. Arizona, 520
U. S. 43, 78 (1997). If there is any exception to that rule, it
is the case where one of two possible interpretations of the
state statute would clearly render it unconstitutional, and
the other would not. In that situation, applying the maxim
“ut res magis valeat quam pereat” we would do precisely
the opposite of what the plurality does here—that is, we
would adopt the alternative reading that renders the statute
constitutional rather than unconstitutional. The plurality’s
analysis is all the more remarkable given the dissonance be-
tween the interpretation of § 18.2–423 implicit in the jury
instruction and the one suggested by the Virginia Supreme
Court. That court’s opinion did not state that, once proof of
public cross burning is presented, a jury is permitted to infer
an intent to intimidate solely on this basis and regardless of
whether a defendant has offered evidence to rebut any such
inference. To the contrary, in keeping with the black-letter
understanding of “prima facie evidence,” the Virginia Su-
preme Court explained that such evidence suffices only to
“insulate the Commonwealth from a motion to strike the evi-
dence at the end of its case-in-chief.” 262 Va., at 778, 553
S. E. 2d, at 746. The court did not so much as hint that a
jury is permitted, under § 18.2–423, to ignore rebuttal evi-
dence and infer an intent to intimidate strictly on the basis
of the prosecution’s prima facie case. And unless and until
the Supreme Court of Virginia tells us that the prima-facie-
evidence provision permits a jury to infer intent under such
conditions, this Court is entirely unjustified in facially invali-
dating § 18.2–423 on this basis.
As its concluding performance, in an apparent effort to
paper over its unprecedented decision facially to invalidate
a statute in light of an errant jury instruction, the plurality
states:
“We recognize that the Supreme Court of Virginia has
not authoritatively interpreted the meaning of the prima
facie evidence provision. . . . We also recognize the

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theoretical possibility that the court, on remand, could
interpret the provision in a manner different from that
so far set forth in order to avoid the constitutional objec-
tions we have described. We leave open that possibil-
ity.” Ante, at 367.
Now this is truly baffling. Having declared, in the immedi-
ately preceding sentence, that § 18.2–423 is “unconstitutional
on its face,” ibid. (emphasis added), the plurality holds out
the possibility that the Virginia Supreme Court will offer
some saving construction of the statute. It should go with-
out saying that if a saving construction of § 18.2–423 is possi-
ble, then facial invalidation is inappropriate. E. g., Harrison
v. NAACP, 360 U. S. 167, 176 (1959) (“[N]o principle has
found more consistent or clear expression than that the fed-
eral courts should not adjudicate the constitutionality of
state enactments fairly open to interpretation until the state
courts have been afforded a reasonable opportunity to pass
upon them”). So, what appears to have happened is that the
plurality has facially invalidated not § 18.2–423, but its own
hypothetical interpretation of § 18.2–423, and has then re-
manded to the Virginia Supreme Court to learn the actual
interpretation of § 18.2–423. Words cannot express my won-
derment at this virtuoso performance.
III
As the analysis in Part I, supra, demonstrates, I be-
lieve the prima-facie-evidence provision in Virginia’s cross-
burning statute is constitutionally unproblematic. Never-
theless, because the Virginia Supreme Court has not yet
offered an authoritative construction of § 18.2–423, I concur in
the Court’s decision to vacate and remand the judgment with
respect to respondents Elliott and O’Mara. I also agree
that respondent Black’s conviction cannot stand. As noted
above, the jury in Black’s case was instructed that “[t]he
burning of a cross, by itself, is sufficient evidence from which
you may infer the required intent.” App. 196 (emphasis

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added). Where this instruction has been given, it is impos-
sible to determine whether the jury has rendered its verdict
(as it must) in light of the entire body of facts before it—
including evidence that might rebut the presumption that
the cross burning was done with an intent to intimidate—
or, instead, has chosen to ignore such rebuttal evidence and
focused exclusively on the fact that the defendant burned a
cross.6 Still, I cannot go along with the Court’s decision to
affirm the judgment with respect to Black. In that judg-
ment, the Virginia Supreme Court, having erroneously con-
cluded that § 18.2–423 is overbroad, not only vacated Black’s
conviction, but dismissed the indictment against him as well.
262 Va., at 779, 553 S. E. 2d, at 746. Because I believe the
constitutional defect in Black’s conviction is rooted in a jury
instruction and not in the statute itself, I would not dismiss
the indictment and would permit the Commonwealth to retry
Black if it wishes to do so. It is an interesting question
whether the plurality’s willingness to let the Virginia Su-
preme Court resolve the plurality’s make-believe facial inval-
idation of the statute extends as well to the facial invalida-
tion insofar as it supports dismissal of the indictment against
Black. Logically, there is no reason why it would not.
Justice Souter, with whom Justice Kennedy and Jus-
tice Ginsburg join, concurring in the judgment in part and
dissenting in part.
I agree with the majority that the Virginia statute makes
a content-based distinction within the category of punishable
intimidating or threatening expression, the very type of dis-
6 Though the jury may well have embraced the former (constitutionally
permissible) understanding of its duties, that possibility is not enough to
dissipate the cloud of constitutional doubt. See Sandstrom v. Montana,
442 U. S. 510, 517 (1979) (refusing to assume that the jury embraced a
constitutionally sound understanding of an ambiguous instruction: “[W]e
cannot discount the possibility that the jury may have interpreted the
instruction [improperly]”).

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tinction we considered in R. A. V. v. St. Paul, 505 U. S. 377
(1992). I disagree that any exception should save Virginia’s
law from unconstitutionality under the holding in R. A. V. or
any acceptable variation of it.
I
The ordinance struck down in R. A. V., as it had been con-
strued by the State’s highest court, prohibited the use of
symbols (including but not limited to a burning cross) as
the equivalent of generally proscribable fighting words, but
the ordinance applied only when the symbol was provocative
“ ‘on the basis of race, color, creed, religion or gender.’ ” Id.,
at 380 (quoting St. Paul, Minn., Legis. Code § 292.02 (1990)).
Although the Virginia statute in issue here contains no such
express “basis of ” limitation on prohibited subject matter,
the specific prohibition of cross burning with intent to intimi-
date selects a symbol with particular content from the field
of all proscribable expression meant to intimidate. To be
sure, that content often includes an essentially intimidating
message, that the cross burner will harm the victim, most
probably in a physical way, given the historical identification
of burning crosses with arson, beating, and lynching. But
even when the symbolic act is meant to terrify, a burning
cross may carry a further, ideological message of white Prot-
estant supremacy. The ideological message not only accom-
panies many threatening uses of the symbol, but is also ex-
pressed when a burning cross is not used to threaten but
merely to symbolize the supremacist ideology and the soli-
darity of those who espouse it. As the majority points out,
the burning cross can broadcast threat and ideology to-
gether, ideology alone, or threat alone, as was apparently the
choice of respondents Elliott and O’Mara. Ante, at 354–
357, 363.
The issue is whether the statutory prohibition restricted
to this symbol falls within one of the exceptions to R. A. V.’s
general condemnation of limited content-based proscription

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within a broader category of expression proscribable gener-
ally. Because of the burning cross’s extraordinary force as
a method of intimidation, the R. A. V. exception most likely
to cover the statute is the first of the three mentioned there,
which the R. A. V. opinion called an exception for content
discrimination on a basis that “consists entirely of the very
reason the entire class of speech at issue is proscribable.”
505 U. S., at 388. This is the exception the majority speaks
of here as covering statutes prohibiting “particularly viru-
lent” proscribable expression. Ante, at 363.
I do not think that the Virginia statute qualifies for this
virulence exception as R. A. V. explained it. The statute
fits poorly with the illustrative examples given in R. A. V.,
none of which involves communication generally associated
with a particular message, and in fact, the majority’s discus-
sion of a special virulence exception here moves that excep-
tion toward a more flexible conception than the version in
R. A. V. I will reserve judgment on that doctrinal develop-
ment, for even on a pragmatic conception of R. A. V. and its
exceptions the Virginia statute could not pass muster, the
most obvious hurdle being the statute’s prima facie evidence
provision. That provision is essential to understanding why
the statute’s tendency to suppress a message disqualifies it
from any rescue by exception from R. A. V.’s general rule.
II
R. A. V. defines the special virulence exception to the rule
barring content-based subclasses of categorically proscrib-
able expression this way: prohibition by subcategory is none-
theless constitutional if it is made “entirely” on the “basis”
of “the very reason” that “the entire class of speech at issue
is proscribable” at all. 505 U. S., at 388. The Court ex-
plained that when the subcategory is confined to the most
obviously proscribable instances, “no significant danger of
idea or viewpoint discrimination exists,” ibid., and the expla-

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nation was rounded out with some illustrative examples.
None of them, however, resembles the case before us.1
The first example of permissible distinction is for a prohi-
bition of obscenity unusually offensive “in its prurience,”
ibid. (emphasis deleted), with citation to a case in which the
Seventh Circuit discussed the difference between obscene
depictions of actual people and simulations. As that court
noted, distinguishing obscene publications on this basis
does not suggest discrimination on the basis of the message
conveyed. Kucharek v. Hanaway, 902 F. 2d 513, 517–518
(1990). The opposite is true, however, when a general prohi-
bition of intimidation is rejected in favor of a distinct pro-
scription of intimidation by cross burning. The cross may
have been selected because of its special power to threaten,
but it may also have been singled out because of disapproval
of its message of white supremacy, either because a legisla-
ture thought white supremacy was a pernicious doctrine or
because it found that dramatic, public espousal of it was a
civic embarrassment. Thus, there is no kinship between the
cross-burning statute and the core prurience example.
Nor does this case present any analogy to the statute
prohibiting threats against the President, the second of
R. A. V.’s examples of the virulence exception and the one
the majority relies upon. Ante, at 362. The content dis-
crimination in that statute relates to the addressee of the
threat and reflects the special risks and costs associated with
threatening the President. Again, however, threats against
the President are not generally identified by reference to the
content of any message that may accompany the threat, let
alone any viewpoint, and there is no obvious correlation in
fact between victim and message. Millions of statements
are made about the President every day on every subject
1 Although three examples are given, the third may be skipped here. It
covers misleading advertising in a particular industry in which the risk of
fraud is thought to be great, and thus deals with commercial speech with
its separate doctrine and standards. R. A. V., 505 U. S., at 388–389.

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384 VIRGINIA v. BLACK
Opinion of Souter, J.
and from every standpoint; threats of violence are not an
integral feature of any one subject or viewpoint as distinct
from others. Differential treatment of threats against the
President, then, selects nothing but special risks, not special
messages. A content-based proscription of cross burning,
on the other hand, may be a subtle effort to ban not only the
intensity of the intimidation cross burning causes when done
to threaten, but also the particular message of white suprem-
acy that is broadcast even by nonthreatening cross burning.
I thus read R. A. V.’s examples of the particular virulence
exception as covering prohibitions that are not clearly associ-
ated with a particular viewpoint, and that are consequently
different from the Virginia statute. On that understanding
of things, I necessarily read the majority opinion as treating
R. A. V.’s virulence exception in a more flexible, pragmatic
manner than the original illustrations would suggest. Ante,
at 363. Actually, another way of looking at today’s decision
would see it as a slight modification of R. A. V.’s third excep-
tion, which allows content-based discrimination within a pro-
scribable category when its “nature” is such “that there is no
realistic possibility that official suppression of ideas is afoot.”
R. A. V., supra, at 390. The majority’s approach could be
taken as recognizing an exception to R. A. V. when circum-
stances show that the statute’s ostensibly valid reason for
punishing particularly serious proscribable expression prob-
ably is not a ruse for message suppression, even though the
statute may have a greater (but not exclusive) impact on
adherents of one ideology than on others, ante, at 362–363.
III
My concern here, in any event, is not with the merit of a
pragmatic doctrinal move. For whether or not the Court
should conceive of exceptions to R. A. V.’s general rule in a
more practical way, no content-based statute should survive
even under a pragmatic recasting of R. A. V. without a high
probability that no “official suppression of ideas is afoot,”

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505 U. S., at 390. I believe the prima facie evidence provi-
sion stands in the way of any finding of such a high probabil-
ity here.
Virginia’s statute provides that burning a cross on the
property of another, a highway, or other public place is
“prima facie evidence of an intent to intimidate a person or
group of persons.” Va. Code Ann. § 18.2–423 (1996). While
that language was added by amendment to the earlier por-
tion of the statute criminalizing cross burning with intent to
intimidate, ante, at 363 (plurality opinion), it was a part of
the prohibitory statute at the time these respondents burned
crosses, and the whole statute at the time of respondents’
conduct is what counts for purposes of the First Amendment.
As I see the likely significance of the evidence provision,
its primary effect is to skew jury deliberations toward con-
viction in cases where the evidence of intent to intimidate is
relatively weak and arguably consistent with a solely ideo-
logical reason for burning. To understand how the provi-
sion may work, recall that the symbolic act of burning a
cross, without more, is consistent with both intent to intimi-
date and intent to make an ideological statement free of any
aim to threaten. Ante, at 354–357. One can tell the intim-
idating instance from the wholly ideological one only by ref-
erence to some further circumstance. In the real world, of
course, and in real-world prosecutions, there will always be
further circumstances, and the factfinder will always learn
something more than the isolated fact of cross burning.
Sometimes those circumstances will show an intent to in-
timidate, but sometimes they will be at least equivocal, as
in cases where a white supremacist group burns a cross
at an initiation ceremony or political rally visible to the pub-
lic. In such a case, if the factfinder is aware of the prima
facie evidence provision, as the jury was in respondent
Black’s case, ante, at 349–350, the provision will have the
practical effect of tilting the jury’s thinking in favor of the
prosecution. What is significant is not that the provision

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386 VIRGINIA v. BLACK
Opinion of Souter, J.
permits a factfinder’s conclusion that the defendant acted
with proscribable and punishable intent without any further
indication, because some such indication will almost always
be presented. What is significant is that the provision will
encourage a factfinder to err on the side of a finding of intent
to intimidate when the evidence of circumstances fails to
point with any clarity either to the criminal intent or to the
permissible one. The effect of such a distortion is difficult
to remedy, since any guilty verdict will survive sufficiency
review unless the defendant can show that, “viewing the evi-
dence in the light most favorable to the prosecution, [no] ra-
tional trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U. S. 307, 319 (1979). The provision will thus tend to
draw nonthreatening ideological expression within the ambit
of the prohibition of intimidating expression, as Justice
O’Connor notes. Ante, at 365–366 (plurality opinion).
To the extent the prima facie evidence provision skews
prosecutions, then, it skews the statute toward suppressing
ideas. Thus, the appropriate way to consider the statute’s
prima facie evidence term, in my view, is not as if it were an
overbroad statutory definition amenable to severance or a
narrowing construction. The question here is not the per-
missible scope of an arguably overbroad statute, but the
claim of a clearly content-based statute to an exception from
the general prohibition of content-based proscriptions, an ex-
ception that is not warranted if the statute’s terms show that
suppression of ideas may be afoot. Accordingly, the way to
look at the prima facie evidence provision is to consider it
for any indication of what is afoot. And if we look at the
provision for this purpose, it has a very obvious significance
as a mechanism for bringing within the statute’s prohibition
some expression that is doubtfully threatening though cer-
tainly distasteful.
It is difficult to conceive of an intimidation case that
could be easier to prove than one with cross burning, assum-

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Opinion of Souter, J.
ing any circumstances suggesting intimidation are present.
The provision, apparently so unnecessary to legitimate pros-
ecution of intimidation, is therefore quite enough to raise
the question whether Virginia’s content-based statute seeks
more than mere protection against a virulent form of intimi-
dation. It consequently bars any conclusion that an excep-
tion to the general rule of R. A. V. is warranted on the
ground “that there is no realistic [or little realistic] possibil-
ity that official suppression of ideas is afoot,” 505 U. S., at
390.2 Since no R. A. V. exception can save the statute as
content based, it can only survive if narrowly tailored to
serve a compelling state interest, id., at 395–396, a stringent
test the statute cannot pass; a content-neutral statute ban-
ning intimidation would achieve the same object without
singling out particular content.
IV
I conclude that the statute under which all three of the
respondents were prosecuted violates the First Amendment,
since the statute’s content-based distinction was invalid at
the time of the charged activities, regardless of whether
the prima facie evidence provision was given any effect in
any respondent’s individual case. In my view, severance of
the prima facie evidence provision now could not eliminate
the unconstitutionality of the whole statute at the time of
the respondents’ conduct. I would therefore affirm the
judgment of the Supreme Court of Virginia vacating the
respondents’ convictions and dismissing the indictments.
Accordingly, I concur in the Court’s judgment as to respond-
ent Black and dissent as to respondents Elliott and O’Mara.
2 The same conclusion also goes for the second R. A. V. exception relat-
ing to “ ‘secondary effects.’ ” 505 U. S., at 389 (citing Renton v. Playtime
Theatres, Inc., 475 U. S. 41, 48 (1986)). Our “secondary effects” jurispru-
dence presupposes that the regulation at issue is “unrelated to the sup-
pression of free expression.” Ibid.

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388 VIRGINIA v. BLACK
Thomas, J., dissenting
Justice Thomas, dissenting.
In every culture, certain things acquire meaning well be-
yond what outsiders can comprehend. That goes for both
the sacred, see Texas v. Johnson, 491 U. S. 397, 422–429
(1989) (Rehnquist, C. J., dissenting) (describing the unique
position of the American flag in our Nation’s 200 years of
history), and the profane. I believe that cross burning is the
paradigmatic example of the latter.
I
Although I agree with the majority’s conclusion that it is
constitutionally permissible to “ban . . . cross burning carried
out with the intent to intimidate,” ante, at 363, I believe that
the majority errs in imputing an expressive component to
the activity in question, see ante, at 362 (relying on one of
the exceptions to the First Amendment’s prohibition on
content-based discrimination outlined in R. A. V. v. St. Paul,
505 U. S. 377 (1992)). In my view, whatever expressive
value cross burning has, the legislature simply wrote it out
by banning only intimidating conduct undertaken by a par-
ticular means. A conclusion that the statute prohibiting
cross burning with intent to intimidate sweeps beyond a pro-
hibition on certain conduct into the zone of expression over-
looks not only the words of the statute but also reality.
A
“In holding [the ban on cross burning with intent to intimi-
date] unconstitutional, the Court ignores Justice Holmes’
familiar aphorism that ‘a page of history is worth a volume of
logic.’ ” Texas v. Johnson, supra, at 421 (Rehnquist, C. J.,
dissenting) (quoting New York Trust Co. v. Eisner, 256 U. S.
345, 349 (1921)).
“The world’s oldest, most persistent terrorist organiza-
tion is not European or even Middle Eastern in origin.
Fifty years before the Irish Republican Army was orga-

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389 Cite as: 538 U. S. 343 (2003)
Thomas, J., dissenting
nized, a century before Al Fatah declared its holy war
on Israel, the Ku Klux Klan was actively harassing, tor-
turing, and murdering in the United States. Today . . .
its members remain fanatically committed to a course of
violent opposition to social progress and racial equality
in the United States.” M. Newton & J. Newton, The
Ku Klux Klan: An Encyclopedia vii (1991) (hereinafter
Newton & Newton).
To me, the majority’s brief history of the Ku Klux Klan only
reinforces this common understanding of the Klan as a ter-
rorist organization, which, in its endeavor to intimidate,
or even eliminate those it dislikes, uses the most brutal of
methods.
Such methods typically include cross burning—“a tool for
the intimidation and harassment of racial minorities, Catho-
lics, Jews, Communists, and any other groups hated by the
Klan.” Capitol Square Review and Advisory Bd. v. Pi-
nette, 515 U. S. 753, 770 (1995) (Thomas, J., concurring). For
those not easily frightened, cross burning has been followed
by more extreme measures, such as beatings and murder. J.
Williams, Eyes on the Prize: America’s Civil Rights Years,
1954–1965, p. 39 (1987). As the Government points out, the
association between acts of intimidating cross burning and
violence is well documented in recent American history.
Brief for United States as Amicus Curiae 3–4, and n. 2.1
1 United States v. Guest, 383 U. S. 745, 747–748, n. 1 (1966) (quoting in-
dictment charging conspiracy under 18 U. S. C. § 241 (1964 ed.) to interfere
with federally secured rights by, inter alia, “burning crosses at night in
public view,” “shooting Negroes,” “beating Negroes,” “killing Negroes,”
“damaging and destroying property of Negroes,” and “pursuing Negroes
in automobiles and threatening them with guns”); United States v. Pos-
pisil, 186 F. 3d 1023, 1027 (CA8 1999) (defendants burned a cross in vic-
tims’ yard, slashed their tires, and fired guns), cert. denied, 529 U. S. 1089
(2000); United States v. Stewart, 65 F. 3d 918, 922 (CA11 1995) (cross burn-
ing precipitated an exchange of gunfire between victim and perpetrators),
cert. denied sub nom. Daniel v. United States, 516 U. S. 1134 (1996);
United States v. McDermott, 29 F. 3d 404, 405 (CA8 1994) (defendants

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390 VIRGINIA v. BLACK
Thomas, J., dissenting
Indeed, the connection between cross burning and violence
is well ingrained, and lower courts have so recognized:
“After the mother saw the burning cross, she was crying
on her knees in the living room. [She] felt feelings
of frustration and intimidation and feared for her hus-
band’s life. She testified what the burning cross sym-
bolized to her as a black American: ‘Nothing good.
Murder, hanging, rape, lynching. Just anything bad
sought to discourage blacks from using public park by burning a cross in
the park, as well as by “waving baseball bats, axe handles, and knives;
throwing rocks and bottles; veering cars towards black persons; and physi-
cally chasing black persons out of the park”); Cox v. State, 585 So. 2d
182, 202 (Ala. Crim. App. 1991) (defendant participated in evening of cross
burning and murder), cert. denied, 503 U. S. 987 (1992); R. Caro, The Years
of Lyndon Johnson: Master of the Senate 847 (2002) (referring to a wave
of “southern bombings, beatings, sniper fire, and cross-burnings” in late
1956 in response to efforts to desegregate schools, buses, and parks); New-
ton & Newton 21 (observing that “Jewish merchants were subjected to
boycotts, threats, cross burnings, and sometimes acts of violence” by the
Klan and its sympathizers); id., at 361–362 (describing cross burning and
beatings directed at a black family that refused demands to sell the home);
id., at 382 (describing incident of cross burning and brick throwing at
home of Jewish officeholder); id., at 583 (describing campaign of cross
burning and property damage directed at Vietnamese immigrant fisher-
men); W. Wade, The Fiery Cross: The Ku Klux Klan in America 262–263
(1987) (describing incidents of cross burning, beatings, kidnaping, and
other “terrorism” directed against union organizers in the South); id., at
376 (cross burnings associated with shooting into cars); id., at 377 (cross
burnings associated with assaults on blacks); 1 R. Kluger, Simple Justice
378 (1975) (describing cross burning at, and subsequent shooting into,
home of federal judge who issued desegregation decisions); Rubinowitz &
Perry, Crimes Without Punishment: White Neighbors’ Resistance to Black
Entry, 92 J. Crim. L. & C. 335, 342, 354–355, 388, 408–410, 419, 420, 421,
423 (Fall 2001–Winter 2002) (noting that an “escalating campaign to eject
a [minority] family” from a white neighborhood could begin with “cross
burnings, window breaking, or threatening telephone calls,” and culminate
with bombings; describing other incidents of cross burning accompanied
by violence); Cross Burned at Manakin, Third in Area, Richmond Times-
Dispatch, Feb. 26, 1951, p. 4, App. 318 (describing 1951 Virginia cross burn-
ing accompanied by gunfire).

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Thomas, J., dissenting
that you can name. It is the worst thing that could hap-
pen to a person.’ . . . Mr. Heisser told the probation offi-
cer that at the time of the occurrence, if the family did
not leave, he believed someone would return to commit
murder. . . . Seven months after the incident, the family
still lived in fear. . . . This is a reaction reasonably
to be anticipated from this criminal conduct.” United
States v. Skillman, 922 F. 2d 1370, 1378 (CA9 1991) (em-
phasis added).
But the perception that a burning cross is a threat and a
precursor of worse things to come is not limited to blacks.
Because the modern Klan expanded the list of its enemies
beyond blacks and “radical[s]” to include Catholics, Jews,
most immigrants, and labor unions, Newton & Newton ix, a
burning cross is now widely viewed as a signal of impending
terror and lawlessness. I wholeheartedly agree with the ob-
servation made by the Commonwealth of Virginia:
“A white, conservative, middle-class Protestant, waking
up at night to find a burning cross outside his home, will
reasonably understand that someone is threatening him.
His reaction is likely to be very different than if he were
to find, say, a burning circle or square. In the latter
case, he may call the fire department. In the former, he
will probably call the police.” Brief for Petitioner 26.
In our culture, cross burning has almost invariably meant
lawlessness and understandably instills in its victims well-
grounded fear of physical violence.
B
Virginia’s experience has been no exception. In Virginia,
though facing widespread opposition in the 1920’s, the Klan
developed localized strength in the southeastern part of the
Commonwealth, where there were reports of scattered raids
and floggings. Newton & Newton 585. Although the Klan
was disbanded at the national level in 1944, ibid., a series of

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392 VIRGINIA v. BLACK
Thomas, J., dissenting
cross burnings in Virginia took place between 1949 and 1952.
See 262 Va. 764, 771, n. 2, 553 S. E. 2d 738, 742, n. 2 (2001)
(collecting newspaper accounts of cross burnings in Virginia
during that time period); see also Cross Fired Near Suffolk
Stirs Probe, Burning Second in Past Week, Richmond
Times-Dispatch, Jan. 23, 1949, section 2, p. 1, App. 313, 314–
315 (The second reported cross burning within a week in
1949 “brought to eight the number which have occurred in
Virginia during the past year. Six of the incidents have oc-
curred in Nansemond County. Four crosses were burned
near Suffolk last Spring, and about 150 persons took part
in the December 11 cross burning near Whaleyville. No
arrests have been made in connection with any of the
incidents”).
Most of the crosses were burned on the lawns of black
families, who either were business owners or lived in pre-
dominantly white neighborhoods. See Police Aid Requested
by Teacher, Cross is Burned in Negro’s Yard, Richmond
News Leader, Jan. 21, 1949, p. 19, App. 312; Cross Fired
Near Suffolk Stirs Probe, Burning Second in Past Week,
supra, at 313; Cross is Burned at Reedville Home, Richmond
News Leader, Apr. 14, 1951, p. 1, App. 321. At least one of
the cross burnings was accompanied by a shooting. Cross
Burned at Manakin, Third in Area, supra n. 1, at 318. The
crosses burned near residences were about five to six feet
tall, while a “huge cross reminiscent of the Ku Klux Klan
days” that burned “atop a hill” as part of the initiation cere-
mony of the secret organization of the Knights of Kavaliers
was 12 feet tall. Huge Cross is Burned on Hill Just South
of Covington, Richmond Times-Dispatch, Apr. 14, 1950, p. 6,
App. 316. These incidents were, in the words of the time,
“terroristic [sic]” and “un-American act[s], designed to in-
timidate Negroes from seeking their rights as citizens.”
Cross Fired Near Suffolk Stirs Probe, Burning Second in
Past Week, supra, at 315 (emphasis added).

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Thomas, J., dissenting
In February 1952, in light of this series of cross burnings
and attendant reports that the Klan, “long considered dead
in Virginia, is being revitalized in Richmond,” Governor Bat-
tle announced that “Virginia ‘might well consider passing
legislation’ to restrict the activities of the Ku Klux Klan.”
“State Might Well Consider” Restrictions on Ku Klux Klan,
Governor Battle Comments, Richmond Times-Dispatch, Feb.
6, 1952, p. 7, App. 321. As newspapers reported at the time,
the bill was “to ban the burning of crosses and other similar
evidences of terrorism.” Name Rider Approved by House,
Richmond News Leader, Feb. 23, 1952, p. 1, App. 325 (empha-
sis added). The bill was presented to the House of Dele-
gates by a former FBI agent and future two-term Governor,
Delegate Mills E. Godwin, Jr. “Godwin said law and order
in the State were impossible if organized groups could create
fear by intimidation.” Bill to Curb KKK Passed By the
House, Action is Taken Without Debate, Richmond Times-
Dispatch, Mar. 8, 1952, p. 5, App. 325 (emphasis added).
That in the early 1950’s the people of Virginia viewed cross
burning as creating an intolerable atmosphere of terror is
not surprising: Although the cross took on some religious
significance in the 1920’s when the Klan became connected
with certain southern white clergy, by the postwar period
it had reverted to its original function “as an instrument
of intimidation.” W. Wade, The Fiery Cross: The Ku Klux
Klan in America 185, 279 (1987).
Strengthening Delegate Godwin’s explanation, as well as
my conclusion, that the legislature sought to criminalize
terrorizing conduct is the fact that at the time the statute
was enacted, racial segregation was not only the prevailing
practice, but also the law in Virginia.2 And, just two years
2 See, e. g., Va. Code Ann. § 18–327 (1950) (repealed 1960) (required sepa-
ration of “white” and “colored” at any place of entertainment or other
public assemblage; violation was misdemeanor); Va. Code Ann. § 20–54
(1960) (repealed 1968) (prohibited racial intermarriage); Va. Code Ann.
§ 22–221 (1969) (repealed 1972) (“White and colored persons shall not be

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394 VIRGINIA v. BLACK
Thomas, J., dissenting
af ter the enactment of this statute, Virginia’s General
Assembly embarked on a campaign of “massive resistance”
in response to Brown v. Board of Education, 347 U. S.
483 (1954). See generally Griffin v. School Bd. of Prince
Edward Cty., 377 U. S. 218, 221 (1964); Harrison v. Day, 200
Va. 439, 448–454, 106 S. E. 2d 636, 644–648 (1959) (describing
massive resistance as legislatively mandated attempt to close
public schools rather than desegregate).
It strains credulity to suggest that a state legislature that
adopted a litany of segregationist laws self-contradictorily
intended to squelch the segregationist message. Even for
segregationists, violent and terroristic conduct, the Siamese
twin of cross burning, was intolerable. The ban on cross
burning with intent to intimidate demonstrates that even
segregationists understood the difference between intimidat-
ing and terroristic conduct and racist expression. It is sim-
ply beyond belief that, in passing the statute now under re-
view, the Virginia Legislature was concerned with anything
but penalizing conduct it must have viewed as particularly
vicious.
Accordingly, this statute prohibits only conduct, not ex-
pression. And, just as one cannot burn down someone’s
house to make a political point and then seek refuge in the
First Amendment, those who hate cannot terrorize and in-
timidate to make their point. In light of my conclusion that
taught in the same school”); Va. Code Ann. § 24–120 (1969) (repealed 1970)
(required separate listings for “white and colored persons” who failed to
pay poll tax); Va. Code Ann. § 38–281 (1950) (repealed 1952) (prohibited
fraternal associations from having “both white and colored members”); Va.
Code Ann. § 53–42 (1967) (amended to remove “race” 1968) (required racial
separation in prison); Va. Code Ann. § 56–114 (1974) (repealed 1975) (au-
thorized State Corporation Commission to require “separate waiting
rooms” for “white and colored races”); Va. Code Ann. § 56–326 (1969) (re-
pealed 1970) (required motor carriers to “separate” their “white and col-
ored passengers,” violation was misdemeanor); §§ 56–390 and 56–396 (re-
pealed 1970) (same for railroads); § 58–880 (repealed 1970) (required
separate personal property tax books for “white[s]” and “colored”).

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Thomas, J., dissenting
the statute here addresses only conduct, there is no need to
analyze it under any of our First Amendment tests.
II
Even assuming that the statute implicates the First
Amendment, in my view, the fact that the statute permits a
jury to draw an inference of intent to intimidate from the
cross burning itself presents no constitutional problems.
Therein lies my primary disagreement with the plurality.
A
“The threshold inquiry in ascertaining the constitutional
analysis applicable to [a jury instruction involving a pre-
sumption] is to determine the nature of the presumption it
describes.” Francis v. Franklin, 471 U. S. 307, 313–314
(1985) (internal quotation marks omitted). We have catego-
rized the presumptions as either permissive inferences or
mandatory presumptions. Id., at 314.
To the extent we do have a construction of this statute by
the Virginia Supreme Court, we know that both the majority
and the dissent agreed that the presumption was “a statuto-
rily supplied inference,” 262 Va., at 778, 553 S. E. 2d, at 746
(emphasis added); id., at 795, 553 S. E. 2d, at 755 (Hassell, J.,
dissenting) (“Code § 18.2–423 creates a statutory inference”
(emphasis added)). Under Virginia law, the term “infer-
ence” has a well-defined meaning and is distinct from the
term “presumption.” Martin v. Phillips, 235 Va. 523, 526,
369 S. E. 2d 397, 399 (1988).
“A presumption is a rule of law that compels the fact
finder to draw a certain conclusion or a certain inference
from a given set of facts.1 The primary significance of
a presumption is that it operates to shift to the opposing
party the burden of producing evidence tending to rebut
the presumption.2 No presumption, however, can oper-
ate to shift the ultimate burden of persuasion from the
party upon whom it was originally cast.

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“ 1
In contrast, an inference, sometimes loosely referred to as a pre-
sumption of fact, does not compel a specific conclusion. An infer-
ence merely applies to the rational potency or probative value of an
evidentiary fact to which the fact finder may attach whatever force
or weight it deems best. 9 J. Wigmore, Evidence in Trials at Com-
mon Law § 2491(1), at 304 (Chad. rev. 1981).
“ 2An inference, on the other hand, does not invoke this procedural
consequence of shifting the burden of production. Id.”
Ibid. (some citations omitted; emphasis added).
Both the majority and the dissent below classified the clause
in question as an “inference,” and I see no reason to disagree,
particularly in light of the instructions given to the jury in
Black’s case, requiring it to find guilt beyond a reasonable
doubt both as to the fact that “the defendant burned or
caused to be burned a cross in a public place,” and that “he
did so with the intent to intimidate any person or group of
persons,” 262 Va., at 796, 553 S. E. 2d, at 756 (Hassell, J.,
dissenting) (quoting jury instructions in Black’s case).
Even though under Virginia law the statutory provision at
issue here is characterized as an “inference,” the Court must
still inquire whether the label Virginia attaches corresponds
to the categorization our cases have given such clauses. In
this respect, it is crucial to observe that what Virginia law
calls an “inference” is what our cases have termed a “permis-
sive inference or presumption.” County Court of Ulster
Cty. v. Allen, 442 U. S. 140, 157 (1979).3 Given that this
3 As the Court explained in Allen, a permissive inference or presump-
tion “allows—but does not require—the trier of fact to infer the elemental
fact from proof by the prosecutor of the basic one and which places no
burden of any kind on the defendant. In that situation the basic fact may
constitute prima facie evidence of the elemental fact. . . . Because this
permissive presumption leaves the trier of fact free to credit or reject the
inference and does not shift the burden of proof, it affects the application
of the ‘beyond a reasonable doubt’ standard only if, under the facts of the
case, there is no rational way the trier could make the connection permit-

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Thomas, J., dissenting
Court’s definitions of a “permissive inference” and a “manda-
tory presumption” track Virginia’s definitions of “inference”
and “presumption,” the Court should judge the Virginia stat-
ute based on the constitutional analysis applicable to “infer-
ences”: they raise no constitutional flags unless there is “no
rational way the trier could make the connection permitted
by the inference.” Ibid. As explained in Part I, supra, not
making a connection between cross burning and intimidation
would be irrational.
But even with respect to statutes containing a mandatory
irrebuttable presumption as to intent, the Court has not
shown much concern. For instance, there is no scienter re-
quirement for statutory rape. See, e. g., Tenn. Code Ann.
§ 39–13–506 (1997); Ore. Rev. Stat. Ann. § 163.365 (1989); Mo.
Rev. Stat. § 566.032 (2000); Ga. Code Ann. § 16–6–3 (1996).
That is, a person can be arrested, prosecuted, and convicted
for having sex with a minor, without the government ever
producing any evidence, let alone proving beyond a reason-
able doubt, that a minor did not consent. In fact, “[f]or pur-
poses of the child molesting statute . . . consent is irrelevant.
The legislature has determined in such cases that children
under the age of sixteen (16) cannot, as a matter of law, con-
sent to have sexual acts performed upon them, or consent to
engage in a sexual act with someone over the age of sixteen
(16).” Warrick v. State, 538 N. E. 2d 952, 954 (Ind. App.
1989) (citing Ind. Code § 35–42–4–3 (1988)). The legislature
finds the behavior so reprehensible that the intent is satisfied
by the mere act committed by a perpetrator. Considering
ted by the inference.” 442 U. S., at 157 (citations omitted). By contrast,
“[a] mandatory presumption . . . may affect not only the strength of the
‘no reasonable doubt’ burden but also the placement of that burden; it tells
the trier that he or they must find the elemental fact upon proof of the
basic fact, at least unless the defendant has come forward with some evi-
dence to rebut the presumed connection between the two facts.” Ibid.

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the horrific effect cross burning has on its victims, it is also
reasonable to presume intent to intimidate from the act
itself.
Statutes prohibiting possession of drugs with intent to dis-
tribute operate much the same way as statutory rape laws.
Under these statutes, the intent to distribute is effectively
satisfied by possession of some threshold amount of drugs.
See, e. g., Del. Code Ann., Tit. 16, § 4753A (1987); Mass. Gen.
Laws, ch. 94C, § 32E (West 1997); S. C. Code Ann. § 44–53–
370 (West 2000). As with statutory rape, the presumption
of intent in such statutes is irrebuttable—not only can a per-
son be arrested for the crime of possession with intent to
distribute (or “trafficking”) without any evidence of intent
beyond quantity of drugs, but such person cannot even
mount a defense to the element of intent. However, as with
statutory rape statutes, our cases do not reveal any contro-
versy with respect to the presumption of intent in these
drug statutes.
Because the prima facie clause here is an inference, not an
irrebuttable presumption, there is all the more basis under
our due process precedents to sustain this statute.
B
The plurality, however, is troubled by the presumption be-
cause this is a First Amendment case. The plurality la-
ments the fate of an innocent cross burner who burns a cross,
but does so without an intent to intimidate. The plurality
fears the chill on expression because, according to the plural-
ity, the inference permits “the Commonwealth to arrest,
prosecute, and convict a person based solely on the fact of
cross burning itself.” Ante, at 365. First, it is, at the very
least, unclear that the inference comes into play during ar-
rest and initiation of a prosecution, that is, prior to the in-
structions stage of an actual trial. Second, as I explained
above, the inference is rebuttable and, as the jury instruc-
tions given in this case demonstrate, Virginia law still re-

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quires the jury to find the existence of each element, includ-
ing intent to intimidate, beyond a reasonable doubt.
Moreover, even in the First Amendment context, the
Court has upheld such regulations where conduct that
initially appears culpable ultimately results in dismissed
charges. A regulation of pornography is one such example.
While possession of child pornography is illegal, New York
v. Ferber, 458 U. S. 747, 764 (1982), possession of adult por-
nography, as long as it is not obscene, is allowed, Miller v.
California, 413 U. S. 15 (1973). As a result, those pornogra-
phers trafficking in images of adults who look like minors
may be not only deterred but also arrested and prosecuted
for possessing what a jury might find to be legal materials.
This “chilling” effect has not, however, been a cause for
grave concern with respect to overbreadth of such statutes
among the Members of this Court.
That the First Amendment gives way to other interests is
not a remarkable proposition. What is remarkable is that,
under the plurality’s analysis, the determination whether an
interest is sufficiently compelling depends not on the harm a
regulation in question seeks to prevent, but on the area of
society at which it aims. For instance, in Hill v. Colorado,
530 U. S. 703 (2000), the Court upheld a restriction on pro-
tests near abortion clinics, explaining that the State had a
legitimate interest, which was sufficiently narrowly tailored,
in protecting those seeking services of such establishments
from “unwanted advice” and “unwanted communication,” id.,
at 708, 716, 717, 729. In so concluding, the Court placed
heavy reliance on the “vulnerable physical and emotional
conditions” of patients. Id., at 729. Thus, when it came to
the rights of those seeking abortions, the Court deemed re-
strictions on “unwanted advice,” which, notably, can be given
only from a distance of at least eight feet from a prospective
patient, justified by the countervailing interest in obtaining
an abortion. Yet, here, the plurality strikes down the stat-
ute because one day an individual might wish to burn a cross,

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but might do so without an intent to intimidate anyone.
That cross burning subjects its targets, and, sometimes, an
unintended audience, see 262 Va., at 782, 553 S. E. 2d, at
748–749 (Hassell, J., dissenting); see also App. 93–97, to ex-
treme emotional distress, and is virtually never viewed
merely as “unwanted communication,” but rather, as a physi-
cal threat, is of no concern to the plurality. Henceforth,
under the plurality’s view, physical safety will be valued less
than the right to be free from unwanted communications.
III
Because I would uphold the validity of this statute, I re-
spectfully dissent.