ABSTRACT
In Virginia v. Black, 538 US 343, the US Supreme Court considered the constitutionality of a Virginia law banning cross burning. By contrast, Virginia's law made cross burning for the purpose of intimidating any "person or group of persons" illegal and specified that an act of cross burning was itself "prima facie evidence of intent to intimidate." The Virginia Court of Appeals had affirmed the convictions, but the state Supreme Court held the statute to be unconstitutional on its face. Describing the Klan as "the world's oldest, most persistent terrorist organization," Clarence Thomas argued that Virginia had adopted the cross-burning law during the heyday of segregation, making it implausible that it was designed to suppress speech. Given the history of cross burning in America, Justice Antonin G. Scalia believed it was quite rational for Virginia to conclude that cross burning per se was designed to intimidate.
