This case presents a stark contrast between two values of the highest order within our Constitutional system. On the one hand, the Commonwealth admirably seeks to regulate hateful actions and expression that threatens its citizens. Yet whatever sanctions government may impose for this purpose must satisfy the rigorous standards established by this Court for the protection of free expression under the First Amendment. The policies reflected in the statute under challenge in this case are wholly consonant with the laudable goals of protecting citizens from fear and intimidation. Yet, as the Virginia Supreme Court ruled, the means chosen by the Commonwealth to serve that end restricts expression protected by the First Amendment. For that reason, they may not be used even for the worthiest of purposes.

Moreover, states possess constitutionally acceptable means for achieving these goals. The activity charged as criminal in this case is indisputably expressive, however hateful and abhorrent it may be to thoughtful citizens. Indeed, were the burning of a cross not highly communicative, it is doubtful that states would seek so consistently to punish the act. Because cross burning is expressive, and conveys a distinctive message to those who view it, a statute that punishes those who burn crosses must be viewpoint-neutral. The statute must also be precise enough to afford adequate guidance to persons who are potentially subject to its provisions. The scope of such a law must not be so broad as to reach, and potentially subject to legal sanctions, any substantial amount of expression that the First Amendment protects. The challenged statute fails appreciably to meet each of these tests. It is for these reasons that amicus urges affirmance of the judgment of the court below.

Respectfully submitted,
Robert M. O'Neil, Counsel of Record
J. Joshua Wheeler

The Thomas Jefferson Center for The Protection of Free Expression