Cross Burning

Legislatures in almost half of the states have enacted statutes that explicitly outlaw cross burning in one form or another. Without more, these proscriptions do not ordinarily reach beyond burning crosses to hangman's nooses or other such harbingers of violence. On the other hand, in those states where the terroristic threats statute proscribes threats of death, serious injury or property destruction, particularly where the statute has a hate crime element, the circumstances surrounding a cross burning or similar display may present all the elements for a prosecution. Civil Rights

Most jurisdictions have hate crime sentencing statutes that enhance the penalties imposed for commission of other criminal offense when the defendant was motivated by racial, religious or some other discriminatory animus. However, the Supreme Court has long recognized that the First Amendment does not afford all forms of expression absolute protection, and the government constitutionally may prohibit the forms of expression that fall outside of the First Amendment's protections. See Watts v. United States , [394 U.S. 705, 708 (1969)] ("political hyperbole" is not a true threat); R.A.V. In this case, Virginia did not single out cross-burning with the intent to intimidate for certain reasons, such as cross-burning with the intent to intimidate due to racial prejudice, but rather banned all cross burning done with the intent to intimidate regardless of the underlying animus. As a result, Justice Thomas saw no reason to analyze the statute under the First Amendment. Whether it may proscribe only those true threats that also include a hate crime element of the type found in the ordinance in R.A.V. Overbreadth and Vagueness

			Overbreadth

Lower court cases decided after Black continue to address overbreadth and vagueness challenges to threat, harassment and intimidation statutes. This category of unprotected speech is of somewhat uncertain dimensions. The Court found that the statute failed to distinguish between advocacy, which is protected by the First Amendment, and incitements to "imminent lawless action," which are not protected.
Almost half of the states outlaw cross burning with the intent to threaten as such. A few of these statutes cover the display of hangman's nooses and other symbols of intimidation as well. Moreover, the same misconduct also frequently falls under more general state prohibitions on coercion, terroristic threats, harassment, or hate crimes. Some of these laws feature a hate crime element without which conviction is not possible; others do not. In either case, there are obvious first amendment implications.
The Supreme Court has explained that not all speech, particular expressive conduct, is protected by the First Amendment. However, in R.A.V. v. St. Paul , it held cross burning with the intent to annoy was protected and did not come within the "fighting words" category of unprotected speech. Shortly thereafter, in Black v. Virginia , the Court held that cross burning with the intent to convey a true threat was not protected. Some of the Justices noted another difference between the two cases: the ordinance in R.A.V. had a hate crime elementâthe offense had to be motivated by racial or some other discriminatory animus; the statute in Black had no such element.
In years since Black was announced, the lower courts have continued to recognize true threats as unprotected, but have also continued to analyze challenges to threat statutes under the First Amendment's overbreadth doctrine and the vagueness doctrine of the Fifth and Fourteenth Amendments' due process clauses. These laws have generally survived such challenges, although an imprecisely worded statute has fallen victim to a vagueness attack upon occasion.