Pro-Choice Network of Western N. See Watts v. The speaker need not actually intend to carry out the threat. 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 noted in Part II, supra , the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence.
The Supreme Court of Virginia ruled that in light of R. Paul , supra , even if it is constitutional to ban cross burning in a content-neutral manner, the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint.
It is true, as the Supreme Court of Virginia held, that the burning of a cross is symbolic expression. Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner. The fact that cross burning is symbolic expression, however, does not resolve the constitutional question.
The Supreme Court of Virginia relied upon R. Paul , supra, to conclude that once a statute discriminates on the basis of this type of content, the law is unconstitutional. We disagree. Paul, Minn. We did not hold in R. Rather, we specifically stated that some types of content discrimination did not violate the First Amendment :. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class.
Consequently, while the holding of R. Unlike the statute at issue in R. Moreover, as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. Miller , 6 Kan.
See Va. 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. Thus, just as a State may regulate 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 inspire fear of bodily harm.
A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R. The Commonwealth added the prima facie provision to the statute in The court below did not reach whether this provision is severable from the rest of the cross-burning statute under Virginia law.
In this Court, as in the Supreme Court of Virginia, respondents do not argue that the prima facie evidence provision is unconstitutional as applied 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 meaning of the prima facie evidence provision.
The prima facie evidence provision, as interpreted by the jury instruction, renders the statute unconstitutional. Chicago, U. Ferber, U. Joseph H. Munson Co. 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.
Taxpayers for Vincent , U. The act of burning a cross may mean that a person is engaging 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 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 solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself.
National Socialist Party of America v. Skokie, U. Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. 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 treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers. It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross.
But this sense of anger or hatred is not sufficient to ban all cross burnings. 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 Ku Klux Klan was first formed in , through the efforts of a small band of Confederate veterans in Tennessee. Quickly expanding from a localized membership, the KKK has become perhaps the most resonant representation of white supremacy and racial terror in the U.
Part of the KKK's enduring draw is that it refers not to a single organization, but rather to a collection of groups bound by use of now-iconic racist symbols -- white hoods, flowing sheets, fiery crosses -- and a predilection for vigilante violence. The Klan's following has tended to rise and fall in cycles often referred to as "waves. The Klan's second -- and largest -- wave peaked in the s, with KKK membership numbering in the millions.
Following the second-wave Klan 's dissolution in the early s, self-identified KKK groups also built sizable followings during the s, in reaction to the rising Civil Rights Movement. Various incarnations have continued to mobilize since -- often through blended affiliations with neo-Nazi, neo-Confederate, and Christian Identity organizations -- but in small numbers and without significant impact on mainstream politics.
Beginning in , Jones took over the North Carolina leadership of the South's preeminent KKK organization, the United Klans of America, and by his "Carolina Klan" boasted more than 10, members across the state, more than the rest of the South combined. Jones' story illuminates our understanding of the KKK's long history generally, and in particular provides a lens to consider the questions that follow. How big a threat is the KKK in the U. In an important sense, this may be the key question about the KKK and whether we should still worry, or care, about the Klan today.
Likely for that reason, literally every discussion I've had about the Klan -- whether in classrooms, community events, radio interviews, or cocktail parties -- comes around to some version of this concern.
I typically respond, in short, that a greater number of KKK organizations exist today than at any other point in the group's long history, but that nearly all of these groups are small, marginal, and lacking in meaningful political or social influence.
I might add two caveats to that reassuring portrait, however. The first is that marginal, isolated extremist cells themselves can become breeding grounds for unpredictable violence.
At the peak of his s influence, Bob Jones would often tell reporters that, if they were truly concerned about violence perpetrated by Klan members, their greatest fear should be that he would disband the KKK, leaving individual members to commit mayhem free from the structure imposed by the group. As Jones' followers committed hundreds of terrorist acts authorized by KKK leadership, his claim was of course disingenuous, but it also contained a grain of truth: Jones and his fellow leaders did dissuade members -- many of whom combined rabid racism with unstable aggression -- from engaging in violence not approved by the KKK hierarchy.
In the absence of a broader organization with much to lose from a crack-down by authorities, racist violence can be much more difficult to prevent or police.
The second caveat stems from KKK's history of emerging and receding in pronounced "waves. But in each case, some "reborn" version of the KKK has managed to rebound and survive. So, while today the KKK appears an anachronism and, perhaps, less of a threat than other brands of racist hate, we still should vigilantly oppose racist entrepreneurs who seek to exploit the historical cachet of the KKK to organize new campaigns advancing white supremacist ends.
To me, this is one primary lesson from the KKK's past, and a compelling reason not to forget or dismiss the enduring relevance of that history. Has the KKK had any lasting political impact? By most straightforward measures, the KKK appears a failed social movement.
Despite the Klan's political inroads during the s, when millions of its members succeeded in electing hundreds of KKK-backed candidates to local, state, and even federal office, the group proved unable to preserve its influence at the ballot box beyond that decade. Later KKK waves have never been able to deliver on promises to rebuild this influential Klan voting bloc.
Bob Jones' Carolina Klan came the closest to winning such influence, with mainstream candidates currying favor sometimes publicly, and more often covertly at Klan rallies and other events with Jones and other leaders in and But that effort appeared short-lived, with both Jones and the Carolina Klan all but disappearing by the early s.
More generally, the KKK's commitment to white supremacy, most clearly realized through Jim Crow-style segregation that endured for decades in the South, has by any formal measure receded as a real possibility in the U. During the civil rights era beginning in the s, white supremacists burned crosses to express opposition to desegregated schools, to frighten civil rights workers, and to show support in for the Republican presidential candidate, Richard M.
Nixon who declined the support. In addition, people with no Klan affiliation have burned crosses on the lawns of African Americans moving into all white neighborhoods. Since the s, a number of states, including Virginia, have passed laws banning cross burnings. The constitutionality of these laws did not reach the Supreme Court until the early s, and then, in slightly more than a decade, the Court issued two seminal rulings on the subject. These decisions, R.
Paul and Virginia v. Black , addressed the constitutionality of laws banning cross burnings and gave the Court a chance to discuss the role of the practice in U. In Virginia v. Black , the Court held that states could ban cross burning undertaken with the intent to intimidate. She wrote several pages outlining the role of cross burning in terrorizing African Americans and other opponents of the Klan. She used historical evidence to support the ruling that a provision in the Virginia law was unconstitutional in allowing a jury to infer intent to intimate solely from the cross burning itself.
This evidence led her to conclude that crosses were sometimes burned for expressive. Relying on a variety of evidence, including testimony from a victim of cross burning and newspaper articles from , when Virginia passed its law, Thomas held that intimidation was the only meaning cross burning could have in the United States.
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