Transcript

VIRGINIA, Petitioner v. BARRY ELTON BLACK, RICHARD J. ELLIOTT, AND JONATHAN O'MARA.

No. 01-1107

December 11, 2002, Wednesday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

PROCEEDINGS

(10:02 a.m.)

JUSTICE STEVENS: We'll hear argument now in Virginia against Black.

Mr. Hurd, please, you may proceed.

ORAL ARGUMENT OF WILLIAM H. HURD ON BEHALF OF THE PETITIONER

WILLIAM H HURD: Justice Stevens, and may it please the Court.

Our Virginia cross-burning statute protects a very important freedom, freedom from fear, and it does so without compromising freedom of speech.

Our statute does not ban all cross-burning, only cross-burning used to threaten bodily harm.

And unlike the ordinance in R.A.V., our statute does not play favorites.

It bans cross-burning as a tool of intimidation by anyone, against anyone, and for any reason.

Surely, for all the reasons why we can ban threats of bodily harm, 100 times over we can ban this exceedingly virulent weapon of fear.

JUSTICE O'CONNOR: Mr. Hurd, I... there's one part of the statute that may be troublesome, and that is the prima facie evidence provision.

I suppose you could have a cross-burning, for instance, in a play, in a theater, something like that, which in theory shouldn't violate the statute, but here's the prima facie evidence provision.

Would you like to comment about that, and in the process, would you tell me if you think it's severable, or what's the story on that--

WILLIAM H HURD: Justice O'Connor, I would like to comment about that.

There are three major points I would like to make.

First is the inference is simply a common sense rule of evidence.

It says that a burning cross may be presumed to mean what we all know it ordinarily does mean, a threat of bodily harm.

And so it says no more than what a prosecutor could argue if the inference were not there.

JUSTICE KENNEDY: --And the jury is instructed accordingly by the judge?

WILLIAM H HURD: The jury is not required to accept.

It's--

JUSTICE KENNEDY: No.

Is the jury so instructed by the judge?

WILLIAM H HURD: --Where the inference is given, yes, Your Honor, it... it is so instructed, and was so instructed in... in the Black case, though not in the Elliott case.

JUSTICE GINSBURG: Do we have the instruction that was given in the Black case?

WILLIAM H HURD: Yes, Justice Ginsburg.

It appears in the appendix.

The instruction is a burning cross--

JUSTICE O'CONNOR: What page?

Are you talking about the joint appendix?

WILLIAM H HURD: --Yes, Your Honor.

JUSTICE O'CONNOR: And where would that be?

WILLIAM H HURD: Instruction number 9 in the joint appendix.

I apologize for the delay.

JUSTICE O'CONNOR: Well, maybe you... maybe you should tell us later, and proceed.

WILLIAM H HURD: On page 146.

The burning of a cross by itself is sufficient evidence from which you may infer the required intent.

JUSTICE GINSBURG: It didn't say that they... it just said the positive, that they could make such an inference.

WILLIAM H HURD: Yes, Justice Ginsburg.

It is a purely permissive inference.

The prosecution retains the burden of proving beyond a reasonable doubt that there was an intent to intimidate.

JUSTICE GINSBURG: In this... in the particular cases before us, what evidence, other than the burning itself, was there to show intimidation?

WILLIAM H HURD: What we had in the case of... of Barry Black was he heard that... he's from Pennsylvania, and he heard that down in Carroll County, blacks and whites were holding hands on the sidewalk.

And so they came down.

He came down, and they had this event.

They chose a spot near an open stretch of highway where they erected a 30-foot cross.

That's as high as these columns.

And they burned it at night with a loudspeaker and talk about taking a.30 [/.30] and randomly shooting blacks.

JUSTICE KENNEDY: Now, was that... did that intimidate everyone who drove by in their passenger vehicle or... let's put it this way... racial minorities who drove by in their passenger vehicle?

All of those were intimidated?

WILLIAM H HURD: Whether or not there was actual intimidation of minorities who drove by was not clearly established by the record.

There was evidence in the record that a black family did drive by, pause, saw it, and took off at a higher than normal rate of speed.

JUSTICE KENNEDY: Yes, but surely they were in no fear of immediate violence, and our... our Brandenburg line of cases says there must be an element of immediacy--

WILLIAM H HURD: Justice Kennedy--

JUSTICE KENNEDY: --before you can punish speech by reason of its content.

WILLIAM H HURD: --Brandenburg was an incitement case, not... not a threat case, although there was a cross-burning in Brandenburg--

JUSTICE KENNEDY: Well, then if I... if I have a picture of a burning cross, and I... and I gave it to somebody, that's--

WILLIAM H HURD: --No, Your Honor.

There has to be a... a burning cross.

In Brandenburg--

JUSTICE KENNEDY: --Isn't that because there's an immediacy element to the threat?

WILLIAM H HURD: --Well, we believe, Your Honor, that... that if you read into the... the threat jurisprudence an immediacy element, then... two points I would make.

Number one is that you would... you would constitutionalize threats when someone said, I'm going to kill you, but it won't be for a little while.

Surely that can't be the case.

A threat, say, against the President would be constitutional so long as the... the time when the threat was going to be delivered was delayed.

JUSTICE KENNEDY: Well, that... that may be... that may be a different... so... so in your view if a burning cross is just put on a hill outside of the city, everybody in the city can be deemed intimidated?

WILLIAM H HURD: Not necessarily, Your Honor.

The... the burning cross carries not merely a message of intimidation, but... a... a threat of bodily harm, but a threat of bodily harm soon to arrive.

Now, the--

JUSTICE KENNEDY: Why doesn't Virginia just have a statute making it a crime to threaten bodily harm that's soon to arrive--

WILLIAM H HURD: --Well, we--

JUSTICE KENNEDY: --burning cross or not?

WILLIAM H HURD: --We could have such a statute, Your Honor, but the... the availability of other options does not mean the option we have chosen is unconstitutional.

JUSTICE KENNEDY: Do other States have criminal statutes that have the broad-based intimidation prohibition that I've just described?

WILLIAM H HURD: Your Honor, some... some very well may.

Again--

JUSTICE KENNEDY: I have not found one.

WILLIAM H HURD: --Respectfully, that... that event would not... would not be the test we believe established by this Court in R.A.V.--

Moreover, Your Honor, there's a... there's a down side to having a broad statute, and it is this.

That whenever you prohibit a proscribable category of speech, there will be a... a zone of protected speech that looks a lot like the proscribed category and in which people must be somewhat careful or they may be arrested mistakenly, as happened with Mr. Watts in the Watts case.

JUSTICE SCALIA: I thought the key here is that this is not just speech.

It is not just speech.

It's action that... that is intended to convey a message.

WILLIAM H HURD: It is--

JUSTICE SCALIA: Surely... surely your State could make it unlawful to brandish... brandish an automatic weapon with the intent of... of intimidating somebody, couldn't it?

WILLIAM H HURD: --Justice Scalia, we... we have statutes that prohibit brandishing of firearms.

In fact, a... a burning cross is very much like a brandishing of a firearm.

JUSTICE SCALIA: That's your point.

WILLIAM H HURD: It is virtually... it is virtually a... a present offer of force.

That makes it an especially virulent form of... of intimidation.

Let me, if I may, come back to Justice O'Connor's point about the inference.

Justice O'Connor, you asked whether the inference could be struck down, severed.

We believe the answer to that question is... is absolutely.

If this Court were to decide it was problematic, under Virginia law, as we cite in our briefs, it is... it is severable.

We have a general severability statute in Virginia so that if the Court were not to agree with us that this inference is constitutional, it should not declare the entire statute invalid, but should sever the inference and remand these cases for further action.

JUSTICE KENNEDY: Well, just to make it clear, anytime in Virginia a burning cross is put near a highway, that is an... a criminal offense.

WILLIAM H HURD: Your Honor, it is a criminal offense to burn a cross with intent to intimidate.

Now, what--

JUSTICE GINSBURG: Even on your own property.

JUSTICE KENNEDY: No, not on your own--

WILLIAM H HURD: --On your own property if it is a... a public place.

A public place is defined in our statute... actually on a jury instruction... as being not public ownership, but public view.

JUSTICE KENNEDY: --And intimidate means to cause fear of violence at some unspecified time in the future--

WILLIAM H HURD: To... to--

JUSTICE KENNEDY: --from some unspecified people.

WILLIAM H HURD: --To instill fear of... of bodily harm.

The specificity of the people is not hard to figure out.

It's whoever burns the cross is the one who is delivering the threat.

Justice Kennedy, there... there are--

JUSTICE STEVENS: May I ask... may I ask you a question on... about instruction 9 to which you called our attention?

It says, the court instructs the jury that the burning of a cross by itself is sufficient evidence from which you may infer the required intent.

Does that mean it is sufficient beyond a reasonable doubt by which you can do it?

WILLIAM H HURD: --Certainly the jury could, by this instruction, by the burning cross infer... infer guilt.

JUSTICE STEVENS: So that in... in a case in which there was a cross burned out in the middle of a desert somewhere, and that's all that's proved, that would be enough to sustain the conviction.

WILLIAM H HURD: That would be enough to... to get you past a motion to strike.

Of course, sustaining a--

JUSTICE STEVENS: Let's say there's no... the defendant puts in no evidence, just rests on the... on... on just remains mute.

He could be convicted on it in that case, I think.

WILLIAM H HURD: --If the instruction were given, he could be convicted.

Of course, in this case, we have more than a burning cross.

And his... his argument, Your Honor--

JUSTICE STEVENS: I understand that.

But then my next question is... I'm asking about whether there's content discrimination.

Supposing he burned a... a circle, he could not be convicted on the same evidence.

WILLIAM H HURD: --He could not.

A burning circle, unlike a burning cross, carries no particular message.

And, Justice Stevens, I would... I would point out that where this Court has previously struck down evidentiary inferences, it has done so under the Due Process Clause.

JUSTICE BREYER: In the case of a desert, he's out in the desert, and he's burning the cross for symbolic purposes and nobody else is around.

I guess wouldn't the judge have to set aside the conviction on... on First Amendment grounds.

WILLIAM H HURD: Justice Breyer, absolutely.

There's... there's... the General Assembly chose this word very carefully when it said a prima facie case.

The State supreme court was very careful when they said, based on that language, it would survive a motion to strike, but there's no attempt in the statute to preclude the kind of independent post-conviction review as required in First Amendment cases.

So absolutely in that case, if... if... first of all, if the police made an arrest, which is doubtful, and if it was prosecuted, which is doubtful, and if the jury found guilt, which is doubtful, then the court could in that case and should in that case vacate the conviction.

JUSTICE SCALIA: Well, that... that's fine if you use the term prima facie case, which is what the statute says.

But the instruction here said the burning of a cross by itself is sufficient evidence from which you may infer the required intent.

And you think that's an accurate... an accurate conveyance to the jury of what is meant by prima facie case.

WILLIAM H HURD: The... the... that obviously was not the only instruction given, Justice Scalia.

JUSTICE SCALIA: I understand.

WILLIAM H HURD: There was also instructions given that... that required the prosecution to prove its case beyond a... a reasonable doubt.

And--

JUSTICE SCALIA: But... but then it goes on to say the burning of a cross is sufficient evidence from which you may infer the... the required intent.

WILLIAM H HURD: --May, but... but need not necessarily.

JUSTICE SCALIA: Need... no, not necessarily.

But that seems to me to be much more than what you now describe as the consequence of a prima facie case.

Just... just one that gets you past a... a motion to dismiss.

WILLIAM H HURD: Well, the... the jury--

JUSTICE SCALIA: It says it's sufficient evidence to find it if... if that's all you--

WILLIAM H HURD: --And Justice Scalia, if there were a problem with that instruction, it would be in our view a... a due process problem, not a First Amendment problem.

JUSTICE BREYER: --Well, I thought there would be a First Amendment problem in the unusual hypothetical instance of the desert, where they gave this instruction and the very thirsty jury convicted the person under this instruction.

Were that to happen, then that might violate the First Amendment since there was no evidence in the case that this was going to intimidate a person, and the only basis for a conviction would have been the instruction of the State.

And under those circumstances, I guess the State instruction permitting conviction would violate the First Amendment.

JUSTICE SCALIA: In other words, every due process violation in a First Amendment case is a First Amendment violation.

JUSTICE BREYER: Not necessarily.

JUSTICE GINSBURG: But that's quite a far--

Unidentified Justice: [Laughter]

WILLIAM H HURD: Justice Scalia, Justice Breyer, in any event that very unusual case would present an as-applied challenge.

JUSTICE GINSBURG: May I ask you--

JUSTICE BREYER: --I agree it's unusual.

JUSTICE GINSBURG: --about a more... a more... case of immediate concern?

You have said that the cross... burning cross is a symbol like no other.

And so this is a self-contained category.

What about other things that are associated with the Klan?

For example, the white robes and the mask?

Are they also symbols that the State can ban, or is there something about the burning cross that makes it unique?

WILLIAM H HURD: Justice Ginsburg, there... there are several things about the burning cross that make it unique.

First, it is the symbol that the Klan has used to... to threaten bodily harm.

The connection, if you will, in our history is... is between the burning cross and ensuing violence, not so much between people wearing white sheets and ensuing violence.

JUSTICE SCALIA: Isn't there a Federal statute that makes it... makes it an offense to go on the highway wearing a... wearing a sheet?

In disguise.

WILLIAM H HURD: And going in disguise on the highway with a particular intent... I believe there is.

And we have a statute in... in Virginia.

One of the things... let me... let me make this point about the burning cross--

JUSTICE GINSBURG: I... I--

WILLIAM H HURD: --and why it's... why it's unique.

JUSTICE GINSBURG: --You're saying it's not unique then if you could also make going on the highway in disguise a crime.

WILLIAM H HURD: Well, I think going on the highway in disguise is... is a different kind of... of concern.

It's... it's the same kind of concern that might, in a variety of cases, prevent people from disguising their identity from... from law enforcement.

But in terms of... of delivering symbols and delivering threats, it really is unique.

It says... it says, we're close at hand.

We don't just talk.

We act.

And it deliberately invokes the precedent of 87 years of cross-burning as a tool of intimidation.

Burn anything else.

Burn the flag.

Burn a sheet.

The message is opposition to the thing that the symbol unburned represents.

Burning a cross is not opposition to Christianity.

The message is a threat of bodily harm, and it... it is unique.

And it's not simply a message of bigotry.

It's a message that... that whoever has it in their hands, a message of bodily harm is coming.

That is the primary message--

JUSTICE STEVENS: It sounds to me like you're defending the statute on the ground that the message that this particular act conveys is particularly obnoxious.

WILLIAM H HURD: --Obnoxious.

Justice Stevens, we have a lot of obnoxious speech, and it's all perfectly fine.

This is not obnoxious speech.

This is a... a threat of bodily harm.

Justice Souter made the point in the concurrence in... in Hill v. Colorado the Government may punish certain types of expressive conduct even though that conduct is associated with a particular point of view.

Those who burn draft cards typically oppose the draft.

Those who engage in sidewalk counseling typically oppose abortion.

But we can oppose restrictions on those activities.

Similarly, we can ban cross burning as a tool of intimidation even though many people who practice cross-burning may also carry with that cross-burning some message of bigotry.

But the primary message... the fundamental message is a threat of bodily harm.

And this is not something that we just made up.

Cross-burning has that message because for decades the Klan wanted it to have that message because they wanted that tool of intimidation.

And so it rings a little hollow when the Klan comes to court and complains that our law treats that message... treats that burning cross as having exactly the message that they for decades have wanted it to have.

And so, we do believe that our statute is... is quite constitutional.

They may have a political rally with a burning cross, but what they cannot do is use a Klan ceremony as a way to smuggle through real threats of bodily harm with a specific intent to intimidate.

That is what happened in the Barry Black case, as the jury found.

The sufficiency of the evidence in that case has... has not been contested.

For these reasons, we would ask the Court to reverse the decision below and, Justice Stevens, I'd like to reserve the balance of my time.

JUSTICE STEVENS: Thank you, Mr. Hurd.

Mr. Dreeben.

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

MICHAEL R DREEBEN: Thank you, Justice Stevens, and may it please the Court.

Virginia has singled out cross-burning with the intent to intimidate because it is a particularly threatening form of such conduct.

History has revealed that cross-burning has been used as a tool to intimidate and put people in fear of bodily violence in a way that no other symbol has been used.

JUSTICE O'CONNOR: Does it fall under the fighting words notion, or is it a separate category of constitutionally proscribable speech do you suppose?

MICHAEL R DREEBEN: Justice O'Connor, our analysis of the intimidation element is that it's akin to a threat to put somebody in bodily harm.

And as such--

JUSTICE GINSBURG: Is it... is it a defense under the statute for someone to prove that they didn't intend to threaten anyone, but just purely to express a viewpoint?

MICHAEL R DREEBEN: --Apart from the presumption or prima facie case provision that Your Honor called attention to earlier, the prohibitory language of the statute does not reach cross-burning when it is done solely for the point of expressing a particular view.

JUSTICE GINSBURG: And how... how do you look at the statute in light of the prima facie evidence provision?

MICHAEL R DREEBEN: Justice O'Connor, it raises separate issues that are distinct from whether a cross-burning statute can single out that particular activity and prohibit it on the basis of its threatening--

JUSTICE GINSBURG: But that's part of this statute that we have to look at, isn't it?

MICHAEL R DREEBEN: --It is, but the Virginia Supreme Court approached the issue by first asking whether the cross-burning provision, insofar as it targeted cross-burning--

JUSTICE GINSBURG: Yes.

MICHAEL R DREEBEN: --ran afoul of this Court's decision in R.A.V., and it only then turned to the prima facie case provision--

JUSTICE GINSBURG: Yes.

MICHAEL R DREEBEN: --and concluded that it rendered the statute overbroad.

The United States has not taken a position on the validity of the prima facie case provision, which does raise distinct issues because it could allow a jury in certain instances to infer solely from the act of cross-burning, without any other evidence at all--

JUSTICE GINSBURG: And that was the instruction given here.

MICHAEL R DREEBEN: --That was the instruction given in one of the two cases.

In the Elliott case, there was no instruction--

JUSTICE GINSBURG: Yes.

MICHAEL R DREEBEN: --whatsoever on the prima facie case provision, and so Elliott's case is somewhat similar... differently situated from... from the Black case.

But a cross-burning statute like this functions not like a fighting words statute which seeks to avert breaches of the peace by the use of particularly obnoxious language that would induce anybody to strike back with a violent reaction.

It functions instead on the theory that a signal to violence, or a warning that violence will come is not protected within the First Amendment.

It is a prohibited form of conduct, and when done as here by an act of putting a flaming cross in a place with the intent to actually put somebody in fear of bodily harm, it's not a form of protected conduct that directly implicates the First Amendment.

It's--

JUSTICE SCALIA: Is it... is it unlawful in Virginia to put somebody in fear of bodily harm in some other fashion, not to burn a cross, but to say I'm going to lynch you?

Is that... is that unlawful in Virginia?

MICHAEL R DREEBEN: --Justice Scalia, my understanding of Virginia law is that it has a... a written threats statute which would cover any threat of any kind in writing, but it does not have a general intimidation or threat statute that would reach other means of oral expression.

JUSTICE SCALIA: It's sort of peculiar, isn't it?

MICHAEL R DREEBEN: Well, what Virginia has done is take something which has historically been used as a particularly dangerous means of intimidation because it has so often been followed up by actual violence and establish a prohibition that is limited to that.

Rather than sweeping in other classes of speech that may raise questions when you come close to the line of whether it is or isn't intimidating and therefore might chill free expression, Virginia has chosen to focus on what conduct occurred within its borders that caused particular harms.

And what--

JUSTICE KENNEDY: Was... was there a common law of intimidation, a tort... a tort that went beyond assault?

MICHAEL R DREEBEN: --There is a common law of... of putting somebody in fear of bodily harm through the tort law.

And there were similarly antecedent criminal provisions that are--

JUSTICE KENNEDY: Is there... is there an immediacy component to that as there is with assaults?

MICHAEL R DREEBEN: --No, there is not, Justice Kennedy, and it's crucial to underscore why that is.

The harms that can be brought about by threat statutes are not only putting somebody in fear of bodily harm and thereby disrupting their movements, but providing a signal that the violence may actually occur.

It may not occur tomorrow, the next day, or next week, but it's like a sword of Damocles hanging over the person whose head... who has been threatened.

And in that sense it creates a pervasive fear that can be ongoing for a considerable amount of time.

JUSTICE THOMAS: Mr. Dreeben, aren't you understating the... the effects of... of the burning cross?

This statute was passed in what year?

MICHAEL R DREEBEN: 1952 originally.

JUSTICE THOMAS: Now, it's my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and... and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror.

Was... isn't that significantly greater than intimidation or a threat?

MICHAEL R DREEBEN: Well, I think they're coextensive, Justice Thomas, because it is--

JUSTICE THOMAS: Well, my fear is, Mr. Dreeben, that you're actually understating the symbolism on... of and the effect of the cross, the burning cross.

I... I indicated, I think, in the Ohio case that the cross was not a religious symbol and that it has... it was intended to have a virulent effect.

And I... I think that what you're attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society.

MICHAEL R DREEBEN: --Well, I don't mean to understate it, and I entirely agree with Your Honor's description of how the cross has been used as an instrument of intimidation against minorities in this country.

That has justified 14 States in treating it as a distinctive--

JUSTICE THOMAS: Well, it's... it's actually more than minorities.

Unidentified Justice: There's certain groups.

JUSTICE THOMAS: And I... I just... my fear is that the... there was no other purpose to the cross.

There was no communication of a particular message.

It was intended to cause fear--

MICHAEL R DREEBEN: --It--

JUSTICE THOMAS: --and to terrorize a population.

MICHAEL R DREEBEN: --It absolutely was, and for that reason can be legitimately proscribed without fear that the focusing on a cross... burning of a cross with the intent to intimidate would chill protected expression.

This is a very different case than the R.A.V. case that was before the Court.

There the Court was confronted with a statute that prohibited the use of language based on particular messages of group-based hatred.

And in singling out speech based on the content, the State was expressing disagreement with particular messages.

In the Virginia statute, and in the other statutes that the States have, the focus is not on any particular message.

It is on the effect of intimidation, and the intent to create a climate of fear and, as Justice Thomas has said, a climate of terror.

JUSTICE SOUTER: So your argument would be the same even if we assumed that the capacity of the cross to convey this message was limited to certain groups, blacks, Catholics, or whatnot.

MICHAEL R DREEBEN: I would, Justice Souter, and I think it's for the reason that Your Honor pointed out in his concurrence in Hill versus Colorado.

Merely because a particular activity might have become the signature of a certain ideological group does not prevent the State from addressing and regulating what is proscribable about that activity.

JUSTICE STEVENS: But it seems to me from this argument, if the message is as powerful as Justice Thomas suggests it is... and I'm sure he's... he's right about that... why is it necessary to go beyond the message itself?

Why... why wouldn't it still be proscribable even if the person burning it didn't realize all of this history, just did it innocently, but it nevertheless had that effect?

MICHAEL R DREEBEN: Well, that would--

JUSTICE STEVENS: Why do you need the intent?

MICHAEL R DREEBEN: --I think that would raise a much more difficult question because notwithstanding the fact that there is a very powerful linkage in our society such that the State is justified in singling out the cross, it may be that under certain contexts, a particular individual is attempting to express a message rather than attempting to intimidate.

And it... it is important to note that merely expressing a message of race-based hatred is not something that the State can proscribe--

JUSTICE SCALIA: Surely... surely one can burn a cross in the sanctity of one's bedroom.

Right?

Unidentified Justice: [Laughter]

MICHAEL R DREEBEN: --There... there are... there are hypothetical cases that one can imagine, the desert, the bedroom--

JUSTICE STEVENS: No, but my assumption is that the geographic scope of the statute is just like this statute.

It doesn't apply to your own property, but on anyone else's property, or in public view.

If the message is as powerful as... as we're assuming as it is, why isn't that a sufficient basis for just banning it?

MICHAEL R DREEBEN: --It might well be, Justice Stevens, but I think that a law that is more tailored, as this one is, and reaches those acts of cross-burning where it is the very intent of the actor to put a person or group of people in fear of bodily harm makes it quite clear that a... that statute aims at the proscribable feature of that conduct and not at the protected feature, namely race-based hatred.

JUSTICE GINSBURG: But if you can infer the... the intent to intimidate just from the act, even when this is done on one's own property, as it was in one of these cases, doesn't that go beyond the line, if... if you... cross-burning on your own property?

MICHAEL R DREEBEN: Justice Stevens, may I answer?

Justice Ginsburg, the inference provision is problematic because it does raise the potential that a wholly protected act of cross-burning, which this Court might find within the scope of the First Amendment, could serve as the exclusive source of evidence from which a conviction could be rendered for unprotected conduct.

And it's for that reason that most States don't have any sort of analogous provision.

The Federal Government doesn't, and it raises distinct problems from the targeting focus of the law that's at issue here.

JUSTICE STEVENS: Thank you, Mr. Dreeben.

Mr. Smolla, we'll... we'll hear from you.

ORAL ARGUMENT OF RODNEY A. SMOLLA ON BEHALF OF THE RESPONDENTS

RODNEY A SMOLLA: Justice Stevens, and may it please the Court.

At the heart of our argument is that when the State targets a particular symbol or a particular symbolic ritual, it engages in content and viewpoint discrimination of the type forbidden by the First Amendment.

JUSTICE SCALIA: What... what about the symbol of brandishing an automatic weapon in... in somebody's face?

RODNEY A SMOLLA: Justice Scalia, I think--

JUSTICE SCALIA: You're next.

RODNEY A SMOLLA: --I think that a core element of our argument is that there is a fundamental First Amendment difference between brandishing a cross, and brandishing a gun.

The physical properties of the gun as a weapon add potency to the threat, and so if the State makes a threat committed with a firearm an especially heinous type of threat, it is acting within the confines of what is permissible under R.A. V. because it is creating a subclass of threat and defining that subclass of threat for the same reasons that allow it to define the outer perimeter of threat law, things going to the danger posed by that threat.

But the properties of the cross are not physical properties, and the burning element of a burning cross are not what communicate the threat.

JUSTICE SOUTER: But is... isn't the... isn't your argument an argument that would have been sound before the cross, in effect, acquired the history that it has?

If we were in the year 1820, and you had a choice between somebody brandishing the loaded gun, and somebody brandishing a cross and nobody knew how the cross had been used because it had not been used, your argument, it seems to me, would be... would be a winning one.

How does your argument account for that fact that the cross has acquired a potency which I would suppose is at least as equal to that of the gun?

RODNEY A SMOLLA: Justice Souter, I think that our argument is that in fact it works the reverse way, that what the cross and the burning cross have acquired as a kind of secondary meaning, somewhat akin to the way that trademarks acquire secondary meaning in intellectual property law, are a multiplicity of messages.

Undoubtedly a burning cross identified as... as effectively the trademark of the Ku Klux Klan carries horrible connotations of terrorism of the kind--

JUSTICE SOUTER: But it... it carries something else, doesn't it?

Isn't it not merely a... a trademark that has acquired a meaning?

Isn't it also a kind of Pavlovian signal so that when that signal is given, the natural human response is not recognition of a message, but fear?

RODNEY A SMOLLA: --No, Your Honor.

Respectfully I think that that overstates what is being communicated.

Any symbol in its pristine state that has gathered reverence in our society... the American flag, the Star of David, the cross, the symbols of government... is a powerful, emotional symbol in... in its revered state.

JUSTICE SOUTER: But they don't make... they don't make you scared, and if you start... for your own safety.

And if you start with the proposition that State can, in fact, prevent threats that scare people reasonably... for their own safety, this is in a separate category from simply a... a symbol that has acquired a potent meaning.

I dare say--

RODNEY A SMOLLA: Your Honor, the word scared is important in answering your question because it's... it's what we mean by being scared, or what we mean by being intimidated.

If I see a burning cross, my stomach may churn.

I may feel a sense of loathing, disgust, a vague sense of--

JUSTICE SOUTER: --Yes.

RODNEY A SMOLLA: --of being intimidated because I associate it--

JUSTICE SOUTER: How about a cross... how about a cross--

RODNEY A SMOLLA: --But that's not fear of bodily harm.

JUSTICE SOUTER: --How about a cross on your lawn?

JUSTICE SCALIA: Yes.

I dare say that you would rather see a man with a... with a rifle on your front lawn... If you were a black man at night, you'd rather see a man with a rifle than see a burning cross on your front lawn.

RODNEY A SMOLLA: Your Honor, I concede that.

However... however--

JUSTICE SCALIA: The whole purpose of that is... is to terrorize.

RODNEY A SMOLLA: --as... as powerful as that point is... and I totally accept it, and totally accept the history that Justice Thomas has... has recounted, and that the United States recounts in its brief as accurate.

As powerful as all of those points are, there's not a single interest that society seeks to protect in protecting that victim that cannot be vindicated perfectly as well, exactly as well with no fall-off at all, by content-neutral alternatives, not merely general run-of-the-mill threat laws, or incitement laws, or intimidation laws which may have an antiseptic and sterile quality about them.

You can go even beyond that--

JUSTICE O'CONNOR: But why isn't this just a regulation of a particularly virulent form of intimidation?

And why can't the State regulate such things?

RODNEY A SMOLLA: --Your Honor, it is not a particularly virulent form of intimidation.

JUSTICE O'CONNOR: Well, it is for the very reasons we've explored this morning.

What if I think it is?

Why can't the State regulate it?

RODNEY A SMOLLA: Because, Justice O'Connor, it is also an especially virulent form of expression on ideas relating to race, religion, politics--

JUSTICE KENNEDY: You were... you were saying that the State can go... doesn't have to have a sterile law on intimidation.

It can go further, but not as far as this.

What--

RODNEY A SMOLLA: --Justice--

JUSTICE KENNEDY: --What is this midpoint?

RODNEY A SMOLLA: --Justice Kennedy, it is the Wisconsin versus Mitchell bias enhancement-style model where the interest of the State goes beyond just preventing physical crime.

It goes to preventing racism, acts of violence, threats, intimidation that are done out of bias and animus.

That captures the fullness of all the conceivable State interests that there could possibly be--

JUSTICE KENNEDY: Well, that was in conjunction with an actual physical assault.

RODNEY A SMOLLA: --But... but, Your Honor, in any instance in which the State were operating upon some conduct that it is constitutionally permissible to proscribe, such as a threat, the State could then enhance the penalty.

If you threaten out of racial animus, you get double the penalty, triple the penalty.

And that would work in any cross-burning case--

JUSTICE KENNEDY: Suppose... suppose if you threaten by use of a cross... burning cross, would that be a specific statutory category that allows the penalty be... to be enhanced?

RODNEY A SMOLLA: --Yes, Your Honor, and even more--

JUSTICE KENNEDY: Well, how can you have a statutory category which enhances the penalty that you can't also use to... to describe the underlying offense?

RODNEY A SMOLLA: --The... the answer to that question, Justice Kennedy, lies in Wisconsin versus Mitchell where this Court held that the mere evidentiary use of speech to prove intent does not implicate the First Amendment.

And although the line is thin, it is gigantic in terms of our First Amendment values.

It is the difference--

JUSTICE STEVENS: Well, let me ask you this.

Supposing you have a statute that prohibits intimidation by burning circles, any... any design of any kind, and the maximum penalty is a year in jail, but if you burn a cross, it's 2 years in jail.

Would that be permissible?

RODNEY A SMOLLA: --It would not be permissible, Your Honor, and the reason it--

JUSTICE STEVENS: And... and it's--

RODNEY A SMOLLA: --would not be permissible is the cross has acquired this meaning as an ideological symbol.

JUSTICE STEVENS: --Because it's content-based discrimination within the category of activity that can be entirely proscribed.

RODNEY A SMOLLA: That is precisely our argument.

JUSTICE STEVENS: Now, is there any support for that proposition other than the majority opinion in R.A.V.?

RODNEY A SMOLLA: Your Honor, R.A.V. is the only case that dealt squarely with this puzzle of what happens when you're dealing with a category of speech that you have the right to proscribe, and then you draw gratuitous content or viewpoint-based distinctions within it.

However, Justice Stevens, I would say that it isn't alone in this Court's powerful condemnation of viewpoint discrimination, and a key element to this Court's First Amendment history is that we don't want to cut matters too finely.

JUSTICE SCALIA: What was involved in R.A.V.?

Was it... was it activity?

What kind of activity was involved.

RODNEY A SMOLLA: Well, the... the fact pattern in R.A.V. was identical to one of the fact patterns here.

It was going on to the yard of an African-American family--

JUSTICE SCALIA: Yes--

RODNEY A SMOLLA: --and burning a cross in the middle of the night, Your Honor.

JUSTICE SCALIA: --Yes, but what was made a crime was the burning it with a particular motivation, wasn't it?

RODNEY A SMOLLA: The... the--

JUSTICE SCALIA: It wasn't the mere act.

RODNEY A SMOLLA: --And... and at the core of our argument, Justice Scalia, is the claim that the concept of viewpoint discrimination is, and ought to be broad enough to encompass not only viewpoint discrimination articulated linguistically, the way that it was done in the statute in R.A.V., but also viewpoint discrimination through the singling out of a symbol because symbols acquire meaning in precisely the same way that words acquire meaning.

JUSTICE BREYER: But words... words are even more.

I mean, your argument applies a fortiori to words.

Right?

RODNEY A SMOLLA: It does, Justice Breyer.

JUSTICE BREYER: I guess you could have statutes, if the need were great, that forbid you from using certain words with a certain intent like, for example, impersonating somebody or... or counterfeiting, or... I mean, if... I've never heard of a case which said you couldn't have a statute that in... if the circumstances were right, forbid a person to use certain words.

RODNEY A SMOLLA: Justice Breyer, the... the First Amendment speaks to this, and... and it's--

JUSTICE BREYER: You can't have that?

To have a statute that says--

RODNEY A SMOLLA: --In fact--

JUSTICE BREYER: --you cannot say I am the President with the intent to confuse people that I'm the President, I mean, that would be unconstitutional.

RODNEY A SMOLLA: --The... the normal... the normal legislative process, Justice Breyer, is not to name the words, not to put in the statute if you utter these--

JUSTICE BREYER: I know that's not normal.

I... I... that's why--

RODNEY A SMOLLA: --but to describe... but to describe the conduct that you are attempting to get at, and then various combinations of words may fit into it.

But let's take the example of naming a set of words.

Even that is enormously problematic for First Amendment purposes.

JUSTICE BREYER: --It is a crime to impersonate the Great Seal of the United States--

RODNEY A SMOLLA: The--

JUSTICE BREYER: --for purposes of obtaining money.

It violates the First Amendment.

RODNEY A SMOLLA: --But... but the... but the... it could, Your Honor, in... in an appropriate circumstance.

Take--

JUSTICE SCALIA: In other words, all it... all it... all you're saying is that heightened scrutiny applies.

RODNEY A SMOLLA: --We are certainly saying that, and--

JUSTICE SCALIA: That's all you're saying.

You can't possibly say more than that once you acknowledge that... that symbols can be proscribed.

RODNEY A SMOLLA: --We... we say that--

JUSTICE SCALIA: And so the question before us is whether burning a cross is such a terrorizing symbol in American... in American culture that even on the basis of heightened scrutiny, it's okay to proscribe it.

That's basically the--

RODNEY A SMOLLA: --That is a... that is a fair characterization of the question.

And... and accepting strict scrutiny as the... the test here, but strict scrutiny we would argue bumped up a bit in its intensity if this is viewpoint discrimination because--

JUSTICE O'CONNOR: --Well, why shouldn't we apply--

RODNEY A SMOLLA: --this Court's been hostile to viewpoint--

JUSTICE O'CONNOR: --the O'Brien test?

Why... why some tougher test than that here?

RODNEY A SMOLLA: --Your Honor, whether you apply O'Brien or strict scrutiny, it's our submission we win because when you get to the point at which you look at alternatives, there are content-neutral alternatives that work perfectly as well.

But to answer directly your question, Justice O'Connor, this Court has never allowed the use of the O'Brien test or any of the cousins of O'Brien, such as the secondary effects doctrine or time, place, or manner jurisprudence, when the harm that the government seeks to prevent is a harm that flows from the communicative impact of the expression.

And there is no getting around the fact that the harm the government seeks to prevent here indubitably flows only from the formation of this symbol.

If I--

JUSTICE BREYER: So I would think then that if the test suggests that you cannot have a statute which says you cannot use the words, I'll kill you, with an intent to kill somebody or threaten him, then there's something wrong with the test, not that there's something wrong with the statute.

That's--

RODNEY A SMOLLA: --Your Honor, take the... take the words... take the words, if you do that again, I swear I'll kill you.

Those words in a given context might be breakfast banter, might be a joke.

JUSTICE BREYER: --Correct, they might.

RODNEY A SMOLLA: It might be something a teacher--

JUSTICE BREYER: So what we put in the--

RODNEY A SMOLLA: --says to a student, or might be a true objective threat.

And the... a core element of this Court's commitment to freedom of speech has been to separate abstract advocacy from palpable harm.

JUSTICE BREYER: --fails to do that.

JUSTICE SCALIA: If it's intended to be--

--the requirement of intent.

--a threat, you can get it.

Right?

RODNEY A SMOLLA: Pardon me, Your Honor?

JUSTICE SCALIA: You're saying if it's intended to be a threat, it can proscribed.

RODNEY A SMOLLA: If it meets the Watts true threats test, it... it is permissible.

This law... this law, however, is a fusion of true threat law, and a gratuitous addition to the true threat law, cross-burning.

The law would have been--

JUSTICE GINSBURG: Mr.... Mr. Smolla--

RODNEY A SMOLLA: --perfectly sufficient--

JUSTICE GINSBURG: --on the question of perfectly sufficient laws, we have in the appendix to the United States brief several laws.

They don't mention cross-burnings.

Are all those adequate under your test?

Would they be constitutional?

RODNEY A SMOLLA: --Yes, Justice Ginsburg.

The Federal model, for example.

There are a variety of Federal civil rights laws that punish conduct that the United States uses routinely to punish acts of cross-burning are perfectly permissible.

And the difference, which is enormous for First Amendment purposes, is that both at the front end of that legislation and at the back end, there is breathing space for the First Amendment.

It's important to remember that our First Amendment jurisprudence is not just about deliberate censorship and realized censorship.

It is also about possibility, about chilling effect, and about breathing... about breathing space.

In effect, in Virginia--

JUSTICE O'CONNOR: But this statute--

RODNEY A SMOLLA: --you burn a cross at your peril.

JUSTICE O'CONNOR: --this statute incorporates the intent to intimidate feature.

RODNEY A SMOLLA: That is true, Justice O'Connor, but even if it does, the learning of R.A.V., we'd submit, is that that alone does not rest in the statute.

JUSTICE O'CONNOR: Well, this--

RODNEY A SMOLLA: A law can't be half constitutional.

JUSTICE O'CONNOR: --this seems to fall within the first exception mentioned in R.A.V..

This does address conduct and with a certain intent.

I mean, to apply R.A.V. is to extend R.A.V.--

RODNEY A SMOLLA: Your Honor, it's our submission that in fact the two cases are identical, and the reason they don't seem identical perhaps is that it is harder... it is harder... to locate the viewpoint and content discrimination in our minds when we think of the burning cross than when we think of the language of R.A.V., which talked about anger or resentment on the basis of race, color, creed.

And that may well be because of the kind of Pavlovian connection that you have identified where we feel this loathing, and we feel this... this generalized fear when we see the sight of the burning cross.

But our point is that ought never be sufficient because even if at a given moment in time, you could take some symbol and freeze it and you could say at this second this symbol always seems associated with violence... imagine you had a terrorist group that was on a serial killing spree and every time they committed an act of violence, they left a little calling card, and that symbol became a terribly frightening--

JUSTICE BREYER: Well, I guess what... you have a very interesting point.

And as I've been thinking about it, it seems to me that the... a difficulty, possible difficulty with it is that the First Amendment doesn't protect words.

It protects use of words for certain purposes.

And it doesn't protect, for example, a... a symbol.

It protects a thing that counts as a symbol when used for symbolic purposes.

RODNEY A SMOLLA: --That's correct.

JUSTICE BREYER: So just as it doesn't protect the words, I will kill you, but protects them when used in a play, but not when used as a threat--

RODNEY A SMOLLA: That is correct.

JUSTICE BREYER: --so it doesn't protect the burning of the cross when used as a threat--

RODNEY A SMOLLA: That is correct.

JUSTICE BREYER: --and not as a symbol.

RODNEY A SMOLLA: That is... that--

JUSTICE BREYER: And now we have a statute that says you can use it as a symbol, but you can't use it as a threat.

And therefore, the First Amendment doesn't apply.

RODNEY A SMOLLA: --And... and--

JUSTICE BREYER: Now, if that's the right analysis, then what's your response?

RODNEY A SMOLLA: --Your Honor, that... that everything you said up until the very end--

[Laughter]

--we would not accept.

[Laughter]

I have a... I have a hunch I have to at least say that much.

[Laughter]

And... and, Justice Breyer, it comes to this, that you cannot make the judgment that this law in its actual impact only penalizes those acts of cross-burning that result in threat.

It certainly chills, Justice Breyer, a wide range of expression, as it did in this case, that cannot plausibly be understood as a threat of bodily harm in any realistic sense.

Every time the Ku Klux Klan conducts one of its rallies, at the height of its rally, it burns a large cross, and it plays a hymn such as the Old Rugged Cross, or Onward Christian Soldiers or Amazing Grace, and this is a ritual that it engages in.

Now, it is inconceivable... there is absolutely nothing in this record that says that every time the Klan does that, that is, in fact, a true threat.

JUSTICE SCALIA: No, it isn't, so long as the Klan doesn't do it in... in sight of a public highway, or on somebody else's property, there's not a chance that this statute would apply to them.

RODNEY A SMOLLA: Your Honor, but the--

JUSTICE SCALIA: They have to do in sight of a public highway?

RODNEY A SMOLLA: --The... the... all the statute requires is that it be visible to others.

And of course, the First Amendment value here in our view is that speech, particularly disturbing and offensive speech that runs contrary to our... our mainstream values that the majority of us embrace, is ineffective unless it is put out to the world where others can see it.

And as Justice Brandeis said in Whitney versus California in his concurring opinion, you don't make the world safer by driving the speech of hate groups such as the Ku Klux Klan underground.

In many societies in this world, you can ban racial supremacist groups.

JUSTICE BREYER: I want you just to address... but it's hard for you because you have clients with different interests here perhaps.

But... but if... if it's right that you can ban speech, i.e., the use of words for purposes of threatening people with bodily harm, which I think we can, then what about this prima facie prohibition?

The way I was thinking about it, to get you to respond, is if you did have a statute that was constitutional that said it is a crime to use the words, I will kill you, with the intent to threaten someone with death.

That statute might go on to say, and the jury may infer from the use of the words themselves on a particular occasion that the threat existed.

And I think--

RODNEY A SMOLLA: And I accept that, Your Honor.

JUSTICE BREYER: --if all that's true, then I guess that the... the prima facie presumption here is no different.

It says the jury may infer from the... the burning cross on a particular occasion, just like the use of the words, I kill you, on a particular occasion--

RODNEY A SMOLLA: There's a world of difference, Your Honor, and the difference is that the words, I will kill you, are words of threat that have no additional emanations.

They have no additional secondary meaning in this society either as the symbol of a group, or as the symbol of an idea such as bigotry.

They partake of the same rationale, the same defining parameters that allow you to attack threats in the first instance.

Whereas the burning cross... the burning cross, whether it's the 19th century burning cross before the Klan began, or today, introduces a symbol... first of all, just a cross before we get to the burning part, a symbol that you must concede is one of the most powerful religious symbols in... in human history.

It is the... it is the symbol of Christianity, the symbol of the crucifixion of Christ.

When the cross is burned, in much the same way as when the flag is burned, undoubtedly the burner is playing on that underlying positive repository of meaning to make the intense negative point, often a point that strikes as horrible and as evil and disgusting, but that's--

JUSTICE GINSBURG: --Mr. Smolla--

RODNEY A SMOLLA: --what the person is trying to do.

JUSTICE GINSBURG: --there's a huge difference between a flag and a burning cross, and it's been pointed out in the briefs.

The flag is a symbol of our government, and one of the things about free speech is we can criticize the President, the Supreme Court, anybody, and feel totally free about doing that.

Unidentified Justice: It's the symbol of government.

JUSTICE GINSBURG: But the cross is not attacking the government.

It's attacking people, threatening their lives and limbs.

And so I don't... I think you have to separate the symbol that is the burning cross from other symbols that are critical of government, but that don't... that aren't a threat to personal safety.

RODNEY A SMOLLA: Justice Ginsburg, I only partially accept that... that dichotomy.

In fact, when the Klan engages in cross-burning, as it did in Brandenburg versus Ohio, and as it did here, it is... it is a melange of messages.

Yes, to some degree, it is a horizontal message of hate speech, the Klan members attacking Jews and Catholics and African-Americans and all of the various people that have been the... the point of its hatred over the years.

But it's also engaged in dissent and in a political message.

If you remember in Brandenburg versus Ohio, Brandenburg says if the Congress doesn't change things, some revenges will have to be taken.

In this case, President Clinton was talked about by the Klan members.

Hillary Clinton was talked about by the Klan members.

Racial preferences and the idea that the... where they're using taxes to support minority groups.

There is a jumble of political anger, of--

JUSTICE STEVENS: Mr. Smolla, I would... I would like to take exception to your suggestion in response to Justice Breyer that the words, I will kill you, always have a threatening meaning.

RODNEY A SMOLLA: --They may not, Justice Stevens.

JUSTICE STEVENS: I think they're often used in casual conversation without any such threatening meaning at all.

RODNEY A SMOLLA: Justice Stevens, I accept that.

But I... I'm merely making the argument that you can fit a phrase such as the words, I will kill you, within the exceptions to R.A.V. in a way that you cannot fit cross-burning within the exceptions to R.A.V. or flag-burning within the exceptions to R.A.V. because cross and flag-burning and any symbol, the burning of the Star of David, the swastika... Virginia has a law virtually identical to the cross-burning law that singles out the swastika.

The... you could... you can go through the universe of symbols--

JUSTICE BREYER: Your argument is not the same with... I mean, it's an... your argument, I take it, is that if you actually have a statute that criminalizes the use of particular words, or... or the burning of a... of a symbol, even if you qualify that by saying you... it's criminal to use them for certain purposes, you've monopolized those words because people who are using them from different purposes will be afraid to use them.

RODNEY A SMOLLA: --And chilled--

JUSTICE BREYER: And then they can't express what they want even though that expression is not to hurt someone.

RODNEY A SMOLLA: --And not merely monopolize, Justice Breyer, but--

JUSTICE BREYER: That's right, yes.

RODNEY A SMOLLA: --But chilled the use of that combination of words or chilled the use of that symbol--

Unidentified Justice: Yes.

All right.

I see your point.

RODNEY A SMOLLA: --So that in effect it becomes--

JUSTICE KENNEDY: That... that seems to give them a free ride when they really want to intimidate and... and threaten.

RODNEY A SMOLLA: --Justice Kennedy, there's no free ride if the government employs content-neutral alternatives, which really--

JUSTICE KENNEDY: Well, why isn't... why can't we say there's no three... free ride when the government imposes scienter?

RODNEY A SMOLLA: --Your Honor, because the First Amendment requires that we flip the question.

It is not why can't the government single out this particular form of expression.

It is why do you need to.

And if you have no need to--

JUSTICE SCALIA: Wait, wait, wait.

I think... I don't think our cases say you have to use the least restrictive alternative.

I'm sure there are other ways of getting at the person who brandishes an automatic weapon, but surely you can make brandishing an automatic weapon a crime--

RODNEY A SMOLLA: --Your Honor--

JUSTICE SCALIA: --even though there are other ways you could get at it.

RODNEY A SMOLLA: --Justice Scalia, you do not need to use the least restrictive alternative when you are not regulating a fundamental right, or engaged in a suspect classification.

JUSTICE SCALIA: A symbol... I mean, that's a symbol too.

Brandishing a weapon is a symbol just as burning a cross is a symbol.

RODNEY A SMOLLA: Except, Your Honor, under... under the Brandenburg test... excuse me... under the O'Brien test, the government has functional elements of... of... that relate to the weapon that allow it to cite things utterly unrelated to the content of expression that empower it to say you may not... you may not brandish a weapon.

JUSTICE SCALIA: I don't know what you're talking about.

RODNEY A SMOLLA: That... that it's... it's like the difference, Justice Scalia, between burning a draft card and burning a cross or burning a flag, that... that the reason O'Brien... the draft card case... allowed the government to punish burning the draft card was that the draft card had a functional purpose... the administration of the Selective Service System... that had nothing to do with what was being expressed when one burned the draft card.

The gun is like that.

When the government says you may not threaten someone by brandishing a gun, there is a functional element to the gun.

It's a weapon that the government can cite as its basis.

But a symbol only has symbolic meaning.

JUSTICE SCALIA: Okay, but--

--It's an unloaded gun.

This is an unloaded gun that's being brandished.

Unidentified Justice: [Laughter]

JUSTICE SCALIA: So once it's unloaded, it's nothing but a symbol.

RODNEY A SMOLLA: It is... it is--

JUSTICE SCALIA: It is nothing but a symbol.

RODNEY A SMOLLA: --It is... it's still... it's still a weapon, Your Honor, and... and it is gigantically different from a cross.

If... if I... take a torch.

What would be the difference between brandishing a torch and brandishing a cross?

If I... if I take two wooden sticks--

JUSTICE KENNEDY: 100 years... 100 years of history.

Unidentified Justice: [Laughter]

JUSTICE KENNEDY: --Exactly, Justice Kennedy, that's the difference.

RODNEY A SMOLLA: And that 100 years of history is on the side of freedom of speech, that it is 100 years of history that a particular group has... has capitalized on this particular ritual to make not only points that are threatening, but to advance their agenda.

JUSTICE SOUTER: All right.

We'll... we'll accept... I mean, I think we accept that, but we... our problem is that the 100 years have also added something else, and that is the kind of specific Pavlovian quality that I spoke of.

And if that is giving us difficulty in deciding whether we should classify this in the O'Brien direction, or the flag direction, what's the... what's the... in effect, the tie-breaker?

RODNEY A SMOLLA: Your Honor, I think the tie-breaker is what I've kept coming back to a number of times, which is really would there be any fall-off through content-neutral alternatives, and if there would not be any fall-off through content-neutral alternatives, then err on the side of freedom of speech.

Imagine that you have two rallies going on side-by-side.

The... the Klan is going to make... engage in a rally, and then a group that wants to counter the Klan's message, a Christian group, has a counter-rally in a public forum in Richmond.

And imagine that at the height of those two rallies, the Klan ignites its cross.

Under this statute, the Klan can be prosecuted, the other group cannot.

It's--

JUSTICE STEVENS: Mr. Smolla, I thought that--

JUSTICE KENNEDY: --What if the other group all are brandishing guns as Justice Scalia said?

Unidentified Justice: [Laughter]

RODNEY A SMOLLA: --Then... then round them up, Your Honor.

[Laughter]

JUSTICE GINSBURG: I thought Mr. Hurd told us that in the Brandenburg case, where it was just burned at a rally as part of the ceremony, that's not what this statute is getting at.

It's only when it's used as a signal of intimidation, and that what sparked this particular cross-burning at this rally... this was no ordinary rally.

This was in response to something that the Klan opposed.

RODNEY A SMOLLA: And... and I think, Justice Ginsburg, again to think about this in content-neutral terms, the First Amendment would not forbid the government charging the Klan in the case that we have with an ordinary, run-of-the-mill threat law, or a hate crime law, such as a bias enhancement statute, and then introducing the fact that the cross was burned as evidence of the threat, and as part of the emotional atmospheric of the case to try to convince a jury of the heinousness and the seriousness of the threat.

That was approved by this Court in Wisconsin versus Mitchell, and it may seem not worth the candle.

It may seem that it's just a way to get to the same result through some other formality, but our position is that that is enormous for First Amendment purposes.

It is the central divide of modern First Amendment law in which the Court insists that you use content-neutral alternatives when you can accomplish the governmental ends equally well through them.

Thank you, Your Honor.

JUSTICE STEVENS: Thank you, Mr. Smolla.

Mr. Hurd, you have 2 minutes in which to discuss all these hypotheticals.

Unidentified Justice: [Laughter]

REBUTTAL ARGUMENT OF WILLIAM H. HURD ON BEHALF OF THE PETITIONER

WILLIAM H HURD: Very briefly.

Justice Souter, the tie-breaker is the intent to intimidate which is in our statute.

If there's no intent to intimidate, there's no violation here.

Opposing counsel's problem is how does the Klan go out in public and burn a cross and have it viewed not as its common, ordinary meaning backed up by 100 years of history.

Well, one thing they could do is not talk about shooting blacks with a.30 [/.30.]

That might suggest there's no intent to intimidate.

Opposing counsel suggests that there should be a broader law.

Well, Congress could pass a broader law, one that didn't focus on threats against the President, one that focused on threats against any Federal employee, but this Court has said a broader law is not needed because threats against the President are especially problematic.

So is cross-burning.

It is not just hate speech.

It doesn't just say I don't like you because you are black.

In the hands of the Klan, the message is the law cannot help you if you're black or Catholic or Jewish or foreign-born, or we just don't like you, and if you try to live your life as a free American, we are going to kill you.

That is the message of cross-burning backed up by 100 years of history.

That's why it is especially virulent.

And that's why under R.A.V., this Court can allow us to proscribe it without having to pass any other law, or pretend it is the same as something quite different than what it is.

We have not interfered with freedom of speech.

We have not tried to suppress any idea.

All we have tried to do is to protect freedom from fear for all of our citizens by guarding against this especially virulent form of intimidation.

We ask that the decision below be reversed and the statute upheld.

Thank you.

JUSTICE STEVENS: Thank you, Mr. Hurd.

The case is submitted.

(Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)