Majority
In Virginia v. Black the Court found that Virginia's statute against cross burning is unconstitutional, but cross burning done with an attempt to intimidate can be limited because such expression has a long and pernicious history as a signal of impending violence. Justice Sandra Day O'Connor delivered the opinion stating, "a state, consistent with the First Amendment, may ban cross burning carried out with the attempt to intimidate." In so doing, the Court created a new area of constitutionally unprotected speech for "true threats." Under that carve-out, "a State may choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm."
The Court did, however, strike down the provision in Virginia's statute which stated "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons," holding that the provision was facially unconstitutional because of its "indiscriminate coverage." The state, therefore, must prove intent to intimidate.
Read more about this topic: Virginia V. Black
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