virginia black et argued december decided april respondents convicted separately violating virginia statute makes felony person intent intimidating person group burn cross property another highway public place specifies ny burning shall prima facie evidence intent intimidate person group respondent black objected first amendment grounds trial jury instruction cross burning sufficient evidence required intent intimidate inferred prosecutor responded instruction taken straight virginia model instructions respondent pleaded guilty charges violating statute reserved right challenge constitutionality respondent elliott trial judge instructed jury commonwealth prove give instruction meaning word intimidate statute prima facie evidence provision consolidating three cases virginia held statute unconstitutional face analytically indistinguishable ordinance found unconstitutional paul discriminates basis content viewpoint since selectively chooses cross burning distinctive message prima facie evidence provision renders statute overbroad enhanced probability prosecution statute chills expression protected speech held judgment affirmed part vacated part remanded affirmed part vacated part remanded justice delivered opinion respect parts ii iii concluding state consistent first amendment may ban cross burning carried intent intimidate pp burning cross inextricably intertwined history ku klux klan following formation imposed reign terror throughout south whipping threatening murdering blacks southern whites disagreed klan carpetbagger northern whites klan often used cross burnings tool intimidation threat impending violence although burnings also remained potent symbols shared group identity ideology serving central feature klan gatherings day however regardless whether message political one also meant intimidate burning cross symbol hate capitol square review advisory bd pinette cross burning inevitably convey message intimidation often cross burner intends recipients message fear lives cross burning used intimidate messages powerful pp protections first amendment affords speech expressive conduct absolute long recognized government may regulate certain categories expression consistent constitution see chaplinsky new hampshire example first amendment permits state ban true threats watts per curiam encompass statements speaker means communicate serious expression intent commit act unlawful violence particular individual group individuals see speaker need actually intend carry threat rather prohibition true threats protects individuals fear violence disruption fear engenders well possibility threatened violence occur supra intimidation constitutionally proscribable sense word type true threat speaker directs threat person group persons intent placing victim fear bodily harm death respondents contest cross burnings fit within meaning intimidating speech rightly history cross burning country shows act often intimidating intended create pervasive fear victims target violence pp first amendment permits virginia outlaw cross burnings done intent intimidate burning cross particularly virulent form intimidation instead prohibiting intimidating messages virginia may choose regulate subset intimidating messages light cross burning long pernicious history signal impending violence ban cross burning carried intent intimidate fully consistent holding contrary virginia ruling hold first amendment prohibits forms discrimination within proscribable area speech rather specifically stated particular type content discrimination violate first amendment basis consists entirely reason entire class speech proscribable example permissible prohibit obscenity patently offensive prurience involves lascivious displays sexual activity ibid similarly virginia statute run afoul first amendment insofar bans cross burning intent intimidate unlike statute issue virginia statute single opprobrium speech directed toward one specified disfavored topics matter whether individual burns cross intent intimidate victim race gender religion victim political affiliation union membership homosexuality ibid thus state may regulate obscenity obscene due prurient content may state choose prohibit forms intimidation likely inspire fear bodily harm pp justice joined chief justice justice stevens justice breyer concluded parts iv virginia statute prima facie evidence provision interpreted jury instruction given respondent black case applied therein unconstitutional face instruction commonwealth model jury instruction virginia opportunity expressly disavow instruction construction prima facie provision binding precise words written statute terminiello chicago construed instruction prima facie provision strips away reason state may ban cross burning intent intimidate provision permits jury convict every cross burning case defendants exercise constitutional right put defense even defendant like black presents defense provision makes likely jury find intent intimidate regardless particular facts case permits commonwealth arrest prosecute convict person based solely fact cross burning interpreted create unacceptable risk suppression ideas secretary state md joseph munson act burning cross may mean person engaging constitutionally proscribable intimidation may mean person engaged core political speech prima facie evidence provision blurs line meanings ignoring contextual factors necessary decide whether particular cross burning intended intimidate first amendment permit shortcut thus black conviction stand judgment affirmed conversely elliott jury receive instruction prima facie provision provision issue case pleaded guilty possibility provision severable whether elliott retried statute left open also left open theoretical possibility remand virginia interpret prima facie provision manner avoid constitutional objections described pp justice scalia agreed vacate remand judgment virginia respect respondents elliott opportunity authoritatively construe statute provision pp justice souter joined justice kennedy justice ginsburg concluded virginia statute unconstitutional saved exception paul therefore concurred judgment insofar affirms invalidation respondent black conviction pp announced judgment delivered opinion respect parts ii iii rehnquist stevens scalia breyer joined opinion respect parts iv rehnquist stevens breyer joined stevens filed concurring opinion scalia filed opinion concurring part concurring judgment part dissenting part thomas joined parts ii souter filed opinion concurring judgment part dissenting part kennedy ginsburg joined thomas filed dissenting opinion virginia petitioner barry elton black richard elliott jonathan writ certiorari virginia april justice announced judgment delivered opinion respect parts ii iii opinion respect parts iv chief justice justice stevens justice breyer join case consider whether commonwealth virginia statute banning cross burning intent intimidate person group persons violates first amendment code ann conclude state consistent first amendment may ban cross burning carried intent intimidate provision virginia statute treating cross burning prima facie evidence intent intimidate renders statute unconstitutional current form respondents barry black richard elliott jonathan convicted separately violating virginia statute statute provides shall unlawful person persons intent intimidating person group persons burn cause burned cross property another highway public place person shall violate provision section shall guilty class felony burning cross shall prima facie evidence intent intimidate person group persons august barry black led ku klux klan rally carroll county virginia thirty people attended gathering occurred private property permission owner attendance property located open field brushy fork road state highway cana virginia sheriff carroll county learned klan rally occurring county went observe side road approximately one hour sheriff present cars passed site stopped ask sheriff happening property app eight ten houses located vicinity rally rebecca sechrist related owner property rally took place sat watched see wha going lawn house looked klan prepared gathering subsequently conducted rally rally sechrist heard klan members speak believed speakers talked real bad blacks mexicans one speaker told assembled gathering love take random ly shoot blacks ibid speakers also talked president clinton hillary clinton tax money goes black people ibid sechrist testified language made scared conclusion rally crowd circled around cross cross yards away road according sheriff cross sudden went flame cross burned klan played amazing grace loudspeakers sechrist stated cross burning made feel awful terrible sheriff observed cross burning informed deputy needed find responsible explain state virginia sheriff went driveway entered rally asked responsible burning cross black responded guess head rally ibid sheriff told black law state virginia burn cross place arrest ibid black charged burning cross intent intimidating person group persons violation trial jury instructed intent intimidate means motivation intentionally put person group persons fear bodily harm fear must arise willful conduct accused rather mere temperamental timidity victim trial also instructed jury burning cross sufficient evidence may infer required intent ibid black objected last instruction first amendment grounds prosecutor responded instruction taken straight virginia model instructions jury found black guilty fined appeals virginia affirmed black conviction rec va app may respondents richard elliott jonathan well third individual attempted burn cross yard james jubilee jubilee elliott neighbor virginia beach virginia four months prior incident jubilee family moved california virginia beach cross burning jubilee spoke elliott mother inquire shots fired behind elliott home elliott mother explained jubilee son shot firearms hobby used backyard firing range night may respondents drove truck onto jubilee property planted cross set fire apparent motive get back jubilee complaining shooting backyard respondents affiliated klan next morning jubilee pulling car driveway noticed partially burned cross approximately feet house seeing cross jubilee nervous know next phase cross burned yard tells first round elliott charged attempted cross burning conspiracy commit cross burning pleaded guilty counts reserving right challenge constitutionality statute judge sentenced days jail fined judge also suspended days sentence fine elliott trial judge originally ruled jury instructed burning cross sufficient evidence may infer required intent trial however instructed jury commonwealth must prove defendant intended commit cross burning defendant direct act toward commission cross burning defendant intent intimidating person group persons instruct jury meaning word intimidate prima facie evidence provision jury found elliott guilty attempted cross burning acquitted conspiracy commit cross burning sentenced elliott days jail fine appeals virginia affirmed convictions elliott commonwealth app respondent appealed virginia arguing facially unconstitutional virginia consolidated three cases held statute unconstitutional face held virginia statute analytically indistinguishable ordinance found unconstitutional paul virginia statute held discriminates basis content since selectively chooses cross burning distinctive message also held prima facie evidence provision renders statute overbroad enhanced probability prosecution statute chills expression protected speech three justices dissented concluding virginia statute passes constitutional muster proscribes conduct constitutes true threat justices noted unlike ordinance found unconstitutional paul virginia statute target cross burning basis race color creed religion gender rather virginia statute applies individual burns cross reason provided cross burned intent intimidate ibid dissenters also disagreed majority analysis prima facie provision inference alone clearly insufficient establish beyond reasonable doubt defendant burned cross intent intimidate dissent noted burden proof still remains commonwealth prove intent intimidate granted certiorari ii cross burning originated century means scottish tribes signal see newton newton ku klux klan encyclopedia sir walter scott used cross burnings dramatic effect lady lake burning cross signified summons call arms see scott lady lake canto third cross burning country however long ago became unmoored scottish ancestry burning cross inextricably intertwined history ku klux klan first ku klux klan began pulaski tennessee spring although ku klux klan started social club soon changed something far different klan fought reconstruction corresponding drive allow freed blacks participate political process soon klan imposed veritable reign terror throughout south kennedy southern exposure hereinafter kennedy klan employed tactics whipping threatening burn people stake murder wade fiery cross ku klux klan america hereinafter wade klan victims included blacks southern whites disagreed klan carpetbagger northern whites activities ku klux klan prompted legislative action national level president grant sent message congress indicating klan reign terror southern rendered life property insecure jett dallas independent school internal quotation marks alterations omitted response congress passed known ku klux klan act see act enforce provisions fourteenth amendment constitution purposes stat codified president grant used new powers suppress klan south carolina effect severely curtailed klan well end reconstruction first klan longer existed genesis second klan began publication thomas dixon clansmen historical romance ku klux klan dixon book sympathetic portrait first klan depicting klan group heroes saving south blacks horrors reconstruction although first klan never actually practiced cross burning dixon book depicted klan burning crosses celebrate execution former slaves see also capitol square review advisory bd pinette thomas concurring cross burning thereby became associated first ku klux klan griffith turned dixon book movie birth nation association cross burning klan became indelible addition cross burnings movie poster advertising film displayed hooded klansman riding hooded horse left hand holding reins horse right hand holding burning cross head wade soon thereafter november second klan began inception second klan cross burnings used communicate threats violence messages shared ideology first initiation ceremony occurred stone mountain near atlanta georgia cross burned mountain klan members took oaths loyalty see kennedy cross burning second recorded instance first known cross burning country occurred little one month klan initiation georgia mob celebrated lynching leo frank burning gigantic cross stone mountain visible throughout atlanta wade internal quotation marks omitted new klan ideology differ much first klan one klan publication emphasized avow distinction races shall ever true faithful maintenance white supremacy strenuously oppose compromise thereof things internal quotation marks omitted violence also elemental part new klan september new york world newspaper documented acts klan violence including murders floggings wade often klan used cross burnings tool intimidation threat impending violence example klan burned crosses front synagogues churches see kennedy one cross burning synagogue klan member noted cross burning shut jews cut throats see happens ibid internal quotation marks omitted miami klan burned four crosses front proposed housing project declaring keep niggers town law fails call us internal quotation marks omitted alabama whirlwind climax weeks flogging terror klan burned crosses front union hall front union leader home eve labor election cross burnings embodied threats people klan deemed antithetical goals threats special force given long history klan violence klan continued use cross burnings intimidate world war ii one incident school teacher recently moved family block formerly occupied whites asked protection city police burning cross front yard richmond news leader app cross burning suffolk virginia late virginia governor stated allow people race subjected terrorism intimidation form klan organization chalmers hooded americanism history ku klux klan hereinafter chalmers incidents cross burning among others helped prompt virginia enact first version statute decision brown board education along civil rights movement sparked another outbreak klan violence acts violence included bombings beatings shootings stabbings mutilations see chalmers wade members klan burned crosses lawns associated civil rights movement assaulted freedom riders bombed churches murdered blacks well whites klan viewed sympathetic toward civil rights movement throughout history klan cross burnings also remained potent symbols shared group identity ideology burning cross became symbol klan central feature klan gatherings according klan constitution called kloran fiery cross emblem sincere unselfish devotedness klansmen sacred purpose principles espoused ku klux klan hearings house committee rules exh see also wade klan often published newsletters magazines name fiery cross see wade klan gatherings across country cross burning became climax rally initiation posters advertising upcoming klan rally often featured klan member holding cross see maclean behind mask chivalry making second ku klux klan typically cross burning start prayer klavern minister followed singing onward christian soldiers klan light cross fire members raised left arm toward burning cross sang old rugged cross wade throughout klan history klan continued use burning cross ritual ceremonies members cross sign celebration ceremony joint rally proceeding concluded wedding two klan members married full klan regalia beneath blazing cross response antimasking bills introduced state legislatures world war ii klan burned crosses protest see chalmers march klan engaged rallies cross burnings throughout south attempt recruit million members see wade later klan became issue third debate richard nixon john kennedy candidates renouncing klan debate klan reiterated support nixon burning crosses see cross burnings featured prominently klan rallies klan attempted move toward nonviolent tactics stop integration see cf chalmers short burning cross remained symbol klan ideology klan unity day regardless whether message political one whether message also meant intimidate burning cross symbol hate capitol square review advisory bd pinette thomas concurring cross burning sometimes carries intimidating message times intimidating message message conveyed example cross burning directed particular person affiliated klan burning cross often serves message intimidation designed inspire victim fear bodily harm moreover history violence associated klan shows possibility injury death hypothetical person burns cross directed particular person often making serious threat meant coerce victim comply klan wishes unless victim willing risk wrath klan indeed cases respondents elliott indicate individuals without klan affiliation wish threaten menace another person sometimes use cross burning association burning cross violence sum burning cross inevitably convey message intimidation often cross burner intends recipients message fear lives cross burning used intimidate messages powerful iii first amendment applicable fourteenth amendment provides congress shall make law abridging freedom speech hallmark protection free speech allow free trade ideas even ideas overwhelming majority people might find distasteful discomforting abrams holmes dissenting see also texas johnson bedrock principle underlying first amendment government may prohibit expression idea simply society finds idea offensive disagreeable thus first amendment ordinarily denies state power prohibit dissemination social economic political doctrine vast majority citizens believes false fraught evil consequence whitney california brandeis dissenting first amendment affords protection symbolic expressive conduct well actual speech see city paul tinker des moines independent community school protections afforded first amendment however absolute long recognized government may regulate certain categories expression consistent constitution see chaplinsky new hampshire certain narrowly limited classes speech prevention punishment never thought raise constitutional problem first amendment permits restrictions upon content speech limited areas slight social value step truth benefit may derived clearly outweighed social interest order morality city paul supra quoting chaplinsky new hampshire supra thus example state may punish words utterance inflict injury tend incite immediate breach peace chaplinsky new hampshire supra see also city paul supra listing limited areas first amendment permits restrictions content speech consequently held fighting words personally abusive epithets addressed ordinary citizen matter common knowledge inherently likely provoke violent reaction generally proscribable first amendment cohen california see also chaplinsky new hampshire supra furthermore constitutional guarantees free speech free press permit state forbid proscribe advocacy use force law violation except advocacy directed inciting producing imminent lawless action likely incite produce action brandenburg ohio per curiam first amendment also permits state ban true threat watts per curiam internal quotation marks omitted accord city paul supra hreats violence outside first amendment madsen women health center schenck network western true threats encompass statements speaker means communicate serious expression intent commit act unlawful violence particular individual group individuals see watts supra political hyberbole true threat city paul speaker need actually intend carry threat rather prohibition true threats protect individuals fear violence disruption fear engenders addition protecting people possibility threatened violence occur ibid intimidation constitutionally proscribable sense word type true threat speaker directs threat person group persons intent placing victim fear bodily harm death respondents contest cross burnings fit within meaning intimidating speech rightly noted part ii supra history cross burning country shows cross burning often intimidating intended create pervasive fear victims target violence virginia ruled light city paul supra even constitutional ban cross burning manner virginia statute unconstitutional discriminates basis content viewpoint true virginia held burning cross symbolic expression reason klan burns cross rallies individuals place burning cross someone else lawn burning cross represents message speaker wishes communicate individuals burn crosses opposed means communication cross burning carries message effective dramatic fact cross burning symbolic expression however resolve constitutional question virginia relied upon city paul supra conclude statute discriminates basis type content law unconstitutional disagree held local ordinance banned certain symbolic conduct including cross burning done knowledge conduct anger alarm resentment others basis race color creed religion unconstitutional quoting paul crime ordinance paul legis code held ordinance pass constitutional muster discriminated basis content targeting individuals provoke violence basis specified law ordinance cover hose wish use words connection ideas express hostility example basis political affiliation union membership homosexuality ibid discrimination unconstitutional allowed city impose special prohibitions speakers express views disfavored subjects ibid hold first amendment prohibits forms discrimination within proscribable area speech rather specifically stated types content discrimination violate first amendment basis content discrimination consists entirely reason entire class speech issue proscribable significant danger idea viewpoint discrimination exists reason adjudged neutral enough support exclusion entire class speech first amendment protection also neutral enough form basis distinction within class indeed noted constitutional ban particular type threat federal government criminalize threats violence directed president since reasons threats violence outside first amendment special force applied person president ibid state may choose prohibit obscenity patently offensive prurience involves lascivious displays sexual activity ibid emphasis original consequently holding permit state ban obscenity based offensive political messages threats president mention policy aid inner cities first amendment permits content discrimination based reasons particular class speech issue proscribable similarly virginia statute run afoul first amendment insofar bans cross burning intent intimidate unlike statute issue virginia statute single opprobrium speech directed toward one specified disfavored topics matter whether individual burns cross intent intimidate victim race gender religion victim political affiliation union membership homosexuality ibid moreover factual matter true cross burners direct intimidating conduct solely racial religious minorities see supra noting instances cross burnings directed union members state miller app describing case defendant burned cross yard lawyer previously represented currently prosecuting indeed case elliott least unclear whether respondents burned cross due racial animus see hassell dissenting noting defendants burned cross angry neighbor complained presence firearm shooting range elliott yard racial animus first amendment permits virginia outlaw cross burnings done intent intimidate burning cross particularly virulent form intimidation instead prohibiting intimidating messages virginia may choose regulate subset intimidating messages light cross burning long pernicious history signal impending violence thus state may regulate obscenity obscene due prurient content may state choose prohibit forms intimidation likely inspire fear bodily harm ban cross burning carried intent intimidate fully consistent holding proscribable first amendment iv virginia ruled alternative virginia statute unconstitutionally overbroad due provision stating ny burning cross shall prima facie evidence intent intimidate person group persons code ann commonwealth added prima facie provision statute reach whether provision severable rest statute virginia law see provisions statutes severable unless apparent two statutes provisions must operate accord one another virginia respondents argue prima facie evidence provision unconstitutional applied one rather contend provision unconstitutional face virginia ruled meaning prima facie evidence provision however stated act burning cross alone evidence intent intimidate nonetheless suffice arrest prosecution insulate commonwealth motion strike evidence end jury case richard elliott receive instruction prima facie evidence provision provision issue case jonathan pleaded guilty barry black case however instructed jury provision means burning cross sufficient evidence may infer required intent app jury instruction model jury instruction commonwealth virginia see virginia model jury instructions criminal instruction supp prima facie evidence provision interpreted jury instruction renders statute unconstitutional jury instruction model jury instruction virginia opportunity expressly disavow jury instruction jury instruction construction prima facie provision ruling question state law binding us though precise words written statute terminiello chicago striking ambiguous statute facial grounds based upon instruction given jury see also new york ferber noting terminiello involved facial challenge statute secretary state md joseph munson note first amendment overbreadth doctrine harv rev monaghan overbreadth rev blakey murray threats free speech jurisprudence federal criminal law rev construed jury instruction prima facie provision strips away reason state may ban cross burning intent intimidate prima facie evidence provision permits jury convict every case defendants exercise constitutional right put defense even defendant like black presents defense prima facie evidence provision makes likely jury find intent intimidate regardless particular facts case provision permits commonwealth arrest prosecute convict person based solely fact cross burning apparent provision interpreted create unacceptable risk suppression ideas secretary state md joseph munson supra quoting members city council los angeles taxpayers vincent act burning cross may mean person engaging constitutionally proscribable intimidation act may mean person engaged core political speech prima facie evidence provision statute blurs line two meanings burning cross interpreted jury instruction provision chills constitutionally protected political speech possibility state prosecute potentially convict somebody engaging lawful political speech core first amendment designed protect history cross burning indicates burning cross always intended intimidate rather sometimes cross burning statement ideology symbol group solidarity ritual used klan gatherings used represent klan thus urning cross political rally almost certainly protected expression paul per curiam indeed occasionally person burns cross intend express either statement ideology intimidation cross burnings appeared movies mississippi burning plays stage adaptation sir walter scott lady lake prima facie provision makes effort distinguish among different types cross burnings distinguish cross burning done purpose creating anger resentment cross burning done purpose threatening intimidating victim distinguish cross burning public rally cross burning neighbor lawn treat cross burning directed individual differently cross burning directed group believers allows jury treat cross burning property another owner acquiescence manner cross burning property another without owner permission extent agree justice souter prima facie evidence provision skew jury deliberations toward conviction cases evidence intent intimidate relatively weak arguably consistent solely ideological reason burning post opinion concurring judgment dissenting part may true cross burning even political rally arouses sense anger hatred among vast majority citizens see burning cross sense anger hatred sufficient ban cross burnings gerald gunther stated lesson drawn childhood nazi germany happier adult life country need walk sometimes difficult path denouncing bigot hateful ideas power yet time challenging community attempt suppress hateful ideas force law casper gerry stan rev internal quotation marks omitted prima facie evidence provision case ignores contextual factors necessary decide whether particular cross burning intended intimidate first amendment permit shortcut reasons prima facie evidence provision interpreted jury instruction applied barry black case unconstitutional face recognize virginia authoritatively interpreted meaning prima facie evidence provision unlike justice scalia refuse speculate whether interpretation prima facie evidence provision satisfy first amendment rather hold interpretation prima facie evidence provision given jury instruction provision makes statute facially invalid point also recognize theoretical possibility remand interpret provision manner different far set forth order avoid constitutional objections described leave open possibility also leave open possibility provision severable whether elliott retried respect barry black agree virginia conviction stand affirm judgment virginia respect elliott vacate judgment virginia remand case proceedings ordered virginia petitioner barry elton black richard elliott jonathan writ certiorari virginia april justice stevens concurring cross burning intent intimidate code ann unquestionably qualifies kind threat unprotected first amendment reasons stated separate opinions justice white wrote paul simple proposition provides sufficient basis upholding basic prohibition virginia statute even though cover types threatening expressive conduct observation join justice opinion virginia petitioner barry elton black richard elliott jonathan writ certiorari virginia april justice thomas dissenting every culture certain things acquire meaning well beyond outsiders comprehend goes sacred see texas johnson rehnquist dissenting describing unique position american flag nation years history profane believe cross burning paradigmatic example latter although agree majority conclusion constitutionally permissible ban cross burning carried intent intimidate see maj believe majority errs imputing expressive component activity question see maj relying one exceptions first amendment prohibition discrimination outlined paul view whatever expressive value cross burning legislature simply wrote banning intimidating conduct undertaken particular means conclusion statute prohibiting cross burning intent intimidate sweeps beyond prohibition certain conduct zone expression overlooks words statute also reality holding ban cross burning intent intimidate unconstitutional ignores justice holmes familiar aphorism page history worth volume logic texas johnson supra rehnquist dissenting quoting new york trust eisner world oldest persistent terrorist organization european even middle eastern origin fifty years irish republican army organized century al fatah declared holy war israel ku klux klan actively harassing torturing murdering today members remain fanatically committed course violent opposition social progress racial equality newton newton ku klux klan encyclopedia vii majority brief history ku klux klan reinforces common understanding klan terrorist organization endeavor intimidate even eliminate dislikes uses brutal methods methods typically include cross burning tool intimidation harassment racial minorities catholics jews communists groups hated klan capitol square review advisory bd pinette thomas concurring easily frightened cross burning followed extreme measures beatings murder juan williams eyes prize america civil rights years solicitor general points association acts intimidating cross burning violence well documented recent american history brief indeed connection cross burning violence well ingrained lower courts recognized mother saw burning cross crying knees living room felt feelings frustration intimidation feared husband life testified burning cross symbolized black american hanging rape lynching anything bad name worst thing happen person heisser told probation officer time occurrence family leave believed someone return commit murder seven months incident family still lived fear reaction reasonably anticipated criminal conduct skillman emphasis added perception burning cross threat precursor worse things come limited blacks modern klan expanded list enemies beyond blacks radical include catholics jews immigrants labor unions newton newton supra ix burning cross widely viewed signal impending terror lawlessness wholeheartedly agree observation made commonwealth virginia white conservative protestant waking night find burning cross outside home reasonably understand someone threatening reaction likely different find say burning circle square latter case may call fire department former probably call police brief petitioner culture cross burning almost invariably meant lawlessness understandably instills victims fear physical violence virginia experience exception virginia though facing widespread opposition kkk developed localized strength southeastern part state reports scattered raids floggings newton newton supra although kkk disbanded national level series cross burnings virginia took place see black virginia collecting newspaper accounts cross burnings virginia time period see also cross fired near suffolk stirs probe burning second past week richmond noting second reported cross burning brought eight number occurred virginia past year six incidents occurred nansemond county four crosses burned near suffolk last spring persons took part december cross burning near whaleyville arrests made connection crosses burned lawns black families either business owners lived predominantly white neighborhoods see police aid requested teacher cross burned negro yard richmond news leader cross fired near suffolk stirs probe burning second past week richmond cross burned reedville home richmond news leader apr least one cross burnings accompanied shooting cross burned manakin third area richmond crosses burned near residences five six feet tall huge cross reminiscent ku klux klan days burned atop hill part initiation ceremony secret organization knights kavaliers twelve feet tall huge cross burned hill south covington richmond apr incidents words time terroristic sic act designed intimidate negroes seeking rights citizens police aid requested teacher cross burned negro yard richmond emphasis added february light series cross burnings attendant reports klan long considered dead virginia revitalized richmond governor battle announced virginia well consider passing legislation restrict activities ku klux klan might well consider restrictions ku klux klan governor battle comments richmond newspapers reported time bill ban burning crosses similar evidences terrorism name rider approved house richmond news leader emphasis added bill presented house delegates former fbi agent future governor delegate mills godwin godwin said law order state impossible organized groups create fear intimidation bill curb kkk passed house action taken without debate richmond times dispatch mar emphasis added early people virginia viewed cross burning creating intolerable atmosphere terror surprising although cross took religious significance klan became connected certain southern white clergy postwar period reverted original function instrument intimidation wade fiery cross ku klux klan america strengthening delegate godwin explanation well conclusion legislature sought criminalize terrorizing conduct fact time statute enacted racial segregation prevailing practice also law two years enactment statute virginia general assembly embarked campaign massive resistance response brown board education see generally griffin county school board harrison day describing massive resistance legislatively mandated attempt close public schools rather desegregate strains credulity suggest state legislature adopted litany segregationist laws intended squelch segregationist message even segregationists violent terroristic conduct siamese twin cross burning intolerable ban cross burning intent intimidate demonstrates even segregationists understood difference intimidating terroristic conduct racist expression simply beyond belief passing statute review virginia legislature concerned anything penalizing conduct must viewed particularly vicious accordingly statute prohibits conduct expression one burn someone house make political point seek refuge first amendment hate terrorize intimidate make point light conclusion statute addresses conduct need analyze first amendment tests ii even assuming statute implicates first amendment view fact statute permits jury draw inference intent intimidate cross burning presents constitutional problems therein lies primary disagreement plurality threshold inquiry ascertaining constitutional analysis applicable jury instruction involving presumption determine nature presumption describes francis franklin categorized presumptions either permissive inferences mandatory presumptions id extent construction statute virginia know majority dissent agreed presumption statutorily supplied inference emphasis added hassell dissenting code creates statutory inference emphasis added virginia law term inference meaning distinct term presumption see martin phillips presumption rule law compels fact finder draw certain conclusion certain inference given set facts contrast inference sometimes loosely referred presumption fact compel specific conclusion inference merely applies rational potency probative value evidentiary fact fact finder may attach whatever force weight deems best wigmore evidence trials common law chad rev primary significance presumption operates shift opposing party burden producing evidence tending rebut presumption inference hand invoke procedural consequence shifting burden production presumption however operate shift ultimate burden persuasion party upon originally cast internal citations omitted emphasis added majority dissent classified clause question inference see reason disagree particularly light instructions given jury black case requiring find guilt beyond reasonable doubt fact defendant burned caused burn cross public place intent intimidate person persons hassell dissenting quoting jury instructions black case even though virginia law statutory provision issue characterized inference must still inquire whether label virginia attaches corresponds categorization cases given clauses respect crucial observe virginia law calls inference cases termed permissive inference presumption see county ulster cty allen given definitions permissive inference mandatory presumption track virginia definitions inference presumption judge virginia statute based constitutional analysis applicable inferences raise constitutional flags unless rational trier make connection permitted inference allen explained part making tion cross burning intimidation irrational even respect statutes containing mandatory irrebuttable presumption intent shown much concern instance scienter requirement statutory rape see mo person arrested prosecuted convicted sex minor without government ever producing evidence let alone proving beyond reasonable doubt minor consent fact purposes child molesting statute consent irrelevant legislature determined cases children age sixteen matter law consent sexual acts performed upon consent engage sexual act someone age sixteen warrick state ind citing ind code legislature finds behavior reprehensible intent satisfied mere act committed perpetrator considering horrific effect cross burning victims also reasonable presume intent intimidate act statutes prohibiting possession drugs intent distribute operate much way statutory rape laws statutes intent distribute effectively satisfied possession threshold amount drugs see del code ann statutory rape presumption intent statutes irrebuttable person arrested crime possession intent distribute trafficking without evidence intent beyond quantity drugs person even mount defense element intent however statutory rape statutes cases reveal controversy respect presumption intent drug statutes prima facie clause inference irrebuttable presumption basis due process precedents sustain statute plurality however troubled presumption first amendment case plurality laments fate innocent burns cross without intent intimidate plurality fears chill expression according plurality inference permits commonwealth arrest prosecute convict person based solely fact cross burning maj first least unclear inference comes play arrest initiation prosecution prior instructions stage actual trial second explained inference rebuttable jury instructions given case demonstrate virginia law still requires jury find existence element including intent intimidate beyond reasonable doubt moreover even first amendment context upheld regulations conduct initially appears culpable ultimately results dismissed charges regulation pornography one example possession child pornography illegal ferber new york possession adult pornography long obscene allowed miller california result pornographers trafficking images adults look like minors may deterred also arrested prosecuted possessing jury might find legal materials chilling effect however cause grave concern respect overbreadth statutes among members first amendment gives way interests remarkable proposition remarkable plurality analysis determination whether interest sufficiently compelling depends harm regulation question seeks prevent area society aims instance hill colorado upheld restriction protests near abortion clinics explaining state legitimate interest sufficiently narrowly tailored protecting seeking services establishments unwanted advice unwanted communication concluding placed heavy reliance vulnerable physical emotional conditions patients thus came rights seeking abortions deemed restrictions unwanted advice notably given distance least feet prospective patient justified countervailing interest obtaining abortion yet plurality strikes statute one day individual might wish burn cross might without intent intimidate anyone cross burning subjects targets sometimes unintended audience see see also extreme emotional distress virtually never viewed merely unwanted communication rather physical threat concern plurality henceforth plurality view physical safety valued less right free unwanted communications iii uphold validity statute respectfully dissent virginia petitioner barry elton black richard elliott jonathan writ certiorari virginia april justice scalia justice thomas joins parts ii concurring part concurring judgment part dissenting part agree decision paul state may without infringing first amendment prohibit cross burning carried intent intimidate accordingly join parts opinion also agree vacate remand judgment virginia opportunity authoritatively construe provision code ann write separately however describe believe correct interpretation explain believe justification plurality apparent decision invalidate provision face section provides burning cross public view shall prima facie evidence intent intimidate order determine whether component statute violates constitution necessary first establish precisely presentation prima facie evidence accomplishes typically prima facie evidence defined evidence judgment law sufficient establish given fact rebutted contradicted remain sufficient evidence unexplained uncontradicted sufficient sustain judgment favor issue supports may contradicted evidence black law dictionary ed virginia prior cases embraced canonical understanding pivotal statutory language babbitt miller prima facie evidence evidence first appearance sufficient raise presumption fact establish fact question unless rebutted example nance commonwealth virginia interpreted law commonwealth prohibited possession certain burglarious tools intent commit burglary robbery larceny provided possession burglarious tools shall prima facie evidence intent commit burglary robbery larceny code ann explained provision cuts defense interposes obstacle contest facts neither jury duty determine questions fact weight whole evidence nance commonwealth see also noting provision merely rule evidence determination fact established meaning virginia term prima facie evidence appears perfectly orthodox evidence suffices establish particular fact hornbook law true extent evidence goes unrebutted prima facie evidence fact evidence judgment law sufficient establish fact rebutted remains sufficient purpose michie jurisprudence virginia west virginia emphasis added sure virginia entirely free wishes discard canonical understanding term prima facie evidence courts also permitted interpret phrase different ways purposes different statutes case however virginia done nothing sort extent tribunal spoken question prima facie evidence means purposes deviated whit prior practice ordinary legal meaning words rather opinion explained act burning cross alone evidence intent intimidate suffice arrest prosecution insulate commonwealth motion strike evidence end put otherwise commonwealth demonstrated case chief defendant burned cross public view sufficient least defendant come forward rebuttal evidence create jury issue respect intent element offense important note virginia suggest trial jury instructions respondent black case see infra jury may light provision ignore rebuttal evidence presented solely basis showing defendant burned cross find intended intimidate crucially say presentation prima facie evidence always sufficient get case jury may never direct verdict defendant shown burned cross public view even end trial defendant presented rebuttal evidence instead according virginia effect provision far limited suffices insulate commonwealth motion strike evidence end nothing emphasis added presentation evidence defendant burned cross public view automatically sufficient support inference defendant intended intimidate defendant comes forward evidence rebuttal ii question presented whether given understanding term prima facie evidence statute constitutional virginia answered question negative stated sweeps within ambit arrest prosecution protected unprotected speech ibid enhanced probability prosecution statute chills expression protected speech sufficiently render statute overbroad approach toward overbreadth analysis unprecedented never held mere threat individuals engage protected conduct subject arrest prosecution suffices render statute overbroad rather overbreadth jurisprudence consistently focused whether prohibitory terms particular statute extend protected conduct inquired whether individuals engage protected conduct convicted statute whether might subject arrest prosecution houston hill statute make unlawful substantial amount constitutionally protected conduct may held facially invalid emphasis added grayned city rockford statute may overbroad reach prohibits constitutionally protected conduct emphasis added paul white concurring judgment deeming ordinance issue fatally overbroad criminalizes expression protected first amendment emphasis added unwilling embrace virginia novel mode overbreadth analysis today opinion properly focuses question may convicted rather may arrested prosecuted thus notes prima facie evidence provision permits jury convict every case defendants exercise constitutional right put defense ante emphasis added cases plurality explains provision permits commonwealth arrest prosecute convict person based solely fact cross burning ibid emphasis added according plurality constitutionally problematic burning cross always intended intimidate nonintimidating cross burning prohibited ante particular opinion notes cross burning may serve statement ideology symbol group solidarity ku klux klan rituals may even serve artistic purposes case film mississippi burning ibid plurality correct means individuals engage protected speech may provision subject conviction convictions assuming unconstitutional challenged basis plurality however little way explanation leaps conclusion possibility convictions justifies facial invalidation statute deeming facially invalid plurality presumably means rely species overbreadth must rare species indeed noted facial challenge overbreadth vagueness law first task determine whether enactment reaches substantial amount constitutionally protected conduct hoffman estates flipside hoffman estates one looks core provision shall unlawful person persons intent intimidating person group persons burn cause burned cross appears capture protected conduct language limited reach conduct state holding ante allowed prohibit order identify protected conduct affected virginia law plurality compelled focus statute core prohibition provision hence process prohibited conduct may found even context plurality claim improper convictions result operation provision alone plurality concedes persons might impermissibly convicted reason provision adopt particular trial strategy wit abstaining presentation defense plurality thus left strikingly attenuated argument support claim virginia statute facially invalid class persons plurality contemplates impermissibly convicted includes individuals burn cross public view intend intimidate nonetheless charged prosecuted refuse present defense ante prima facie evidence provision permits jury convict every case defendants exercise constitutional right put defense conceding quite generously view class persons exists possibly give rise viable facial challenge even aid first amendment overbreadth doctrine emphasized repeatedly statute regulates expressive conduct scope statute render unconstitutional unless overbreadth real substantial well judged relation statute plainly legitimate sweep osborne ohio internal quotation marks omitted emphasis added see also houston hill mere fact one conceive impermissible applications statute sufficient render susceptible overbreadth challenge new york ferber law invalidated overbreadth unless reaches substantial number impermissible applications notion set cases identified plurality convictions might improperly obtained sufficiently large render statute substantially overbroad fanciful potential improper convictions plurality complains appropriately classified sort marginal applications statute light facial invalidation inappropriate parker levy perhaps alarming plurality concedes ante understanding provision premised jury instructions given respondent black case well good fact plurality facially invalidates ante prima facie evidence provision interpreted jury instruction applied barry black case unconstitutional face aware case plurality cites none facially invalidated ambiguous statute basis constitutionally troubling jury altogether unsurprising precedent holding state law ambiguous treating jury instructions binding interpretations cede enormous measure power state law trial judges single judge idiosyncratic reading state statute trigger invalidation case troubling instruction burning cross sufficient evidence may infer required intent app taken verbatim virginia model jury instructions model instructions neither promulgated legislature formally adopted virginia hornbook law virginia elsewhere roffered instructions correctly state law erroneous refused michie jurisprudence virginia west virginia instructions supp plurality willingness treat jury instruction binding strike basis shocking enough virginia offered guidance proper construction provision ordinarily decline pass upon constitutionality ambiguous state statute state highest provided binding construction arizonans official english arizona exception rule case one two possible interpretations state statute clearly render unconstitutional situation applying maxim ut res magis valeat quam pereat precisely opposite plurality adopt alternative reading renders statute constitutional rather unconstitutional plurality analysis remarkable given dissonance interpretation implicit jury instruction one suggested virginia opinion state proof public cross burning presented jury permitted infer intent intimidate solely basis regardless whether defendant offered evidence rebut inference contrary keeping understanding prima facie evidence virginia explained evidence suffices insulate commonwealth motion strike evidence end much hint jury permitted ignore rebuttal evidence infer intent intimidate strictly basis prosecution prima facie case unless virginia tells us provision permits jury infer intent conditions entirely unjustified facially invalidating basis concluding performance apparent effort paper unprecedented decision facially invalidate statute light errant jury instruction plurality recognize virginia authoritatively interpreted meaning prima facie evidence provision also recognize theoretical possibility remand interpret provision manner different far set forth order avoid constitutional objections described leave open possibility ante truly baffling declared immediately preceding sentence unconstitutional face ibid emphasis added plurality holds possibility virginia offer saving construction statute go without saying saving construction possible facial invalidation inappropriate harrison naacp principle found consistent clear expression federal courts adjudicate constitutionality state enactments fairly open interpretation state courts afforded reasonable opportunity pass upon appears happened plurality facially invalidated hypothetical interpretation remanded virginia learn actual interpretation words express wonderment virtuoso performance iii analysis part supra demonstrates believe provision virginia statute constitutionally unproblematic nevertheless virginia yet offered authoritative construction concur decision vacate remand judgment respect respondents elliott also agree respondent black conviction stand noted jury black case instructed burning cross sufficient evidence may infer required intent app emphasis added instruction given impossible determine whether jury rendered verdict must light entire body facts including evidence might rebut presumption cross burning done intent intimidate instead chosen ignore rebuttal evidence focused exclusively fact defendant burned still go along decision affirm judgment respect black judgment virginia erroneously concluded overbroad vacated black conviction dismissed indictment well believe constitutional defect black conviction rooted jury instruction statute dismiss indictment permit commonwealth retry black wishes interesting question whether plurality willingness let virginia resolve plurality facial invalidation statute extends well facial invalidation insofar supports dismissal indictment black logically reason virginia petitioner barry elton black richard elliott jonathan writ certiorari virginia april justice souter justice kennedy justice ginsburg join concurring judgment part dissenting part agree majority virginia statute makes distinction within category punishable intimidating threatening expression type distinction considered paul disagree exception save virginia law unconstitutionality holding acceptable variation ordinance struck construed state highest prohibited use symbols including limited burning cross equivalent generally proscribable fighting words ordinance applied symbol provocative basis race color creed religion gender quoting paul legis code although virginia statute issue contains express basis limitation prohibited subject matter specific prohibition cross burning intent intimidate selects symbol particular content field proscribable expression meant intimidate sure content often includes essentially intimidating message cross burner harm victim probably physical way given historical identification burning crosses arson beating lynching even symbolic act meant terrify burning cross may carry ideological message white protestant supremacy ideological message accompanies many threatening uses symbol also expressed burning cross used threaten merely symbolize supremacist ideology solidarity espouse majority points burning cross broadcast threat ideology together ideology alone threat alone apparently choice respondents elliott ante issue whether statutory prohibition restricted symbol falls within one exceptions general condemnation limited proscription within broader category expression proscribable generally burning cross extraordinary force method intimidation exception likely cover statute first three mentioned opinion called exception content discrimination basis consists entirely reason entire class speech issue proscribable supra exception majority speaks covering statutes prohibiting particularly virulent proscribable expression ante think virginia statute qualifies virulence exception explained statute fits poorly illustrative examples given none involves communication generally associated particular message fact majority discussion special virulence exception moves exception toward flexible conception version reserve judgment doctrinal development even pragmatic conception exceptions virginia statute pass muster obvious hurdle statute prima facie evidence provision provision essential understanding statute tendency suppress message disqualifies rescue exception general rule ii defines special virulence exception rule barring subclasses categorically proscribable expression way prohibition subcategory nonetheless constitutional made entirely basis reason entire class speech issue proscribable explained subcategory confined obviously proscribable instances significant danger idea viewpoint discrimination exists explanation rounded illustrative examples none however resembles case first example permissible distinction prohibition obscenity unusually offensive prurience ibid emphasis deleted citation case seventh circuit discussed difference obscene depictions actual people simulations noted distinguishing obscene publications basis suggest discrimination basis message conveyed kucharek hanaway opposite true however general prohibition intimidation rejected favor distinct proscription intimidation cross burning cross may selected special power threaten may also singled disapproval message white supremacy either legislature thought white supremacy pernicious doctrine found dramatic public espousal civic embarrassment thus kinship statute core prurience example case present analogy statute prohibiting threats president second examples virulence exception one majority relies upon ante content discrimination statute relates addressee threat reflects special risks costs associated threatening president however threats president generally identified reference content message may accompany threat let alone viewpoint obvious correlation fact victim message millions statements made president every day every subject every standpoint threats violence integral feature one subject viewpoint distinct others differential treatment threats president selects nothing special risks special messages proscription cross burning hand may subtle effort ban intensity intimidation cross burning causes done threaten also particular message white supremacy broadcast even nonthreatening cross burning thus read examples particular virulence exception covering prohibitions clearly associated particular viewpoint consequently different virginia statute understanding things necessarily read majority opinion treating virulence exception flexible pragmatic manner original illustrations suggest ante actually another way looking today decision see slight modification third exception allows discrimination within proscribable category nature realistic possibility official suppression ideas afoot supra majority approach taken recognizing exception circumstances show statute ostensibly valid reason punishing particularly serious proscribable expression probably ruse message suppression even though statute may greater exclusive impact adherents one ideology others ante iii concern event merit pragmatic doctrinal move whether conceive exceptions general rule practical way statute survive even pragmatic recasting without high probability official suppression ideas afoot supra believe prima facie evidence provision stands way finding high probability virginia statute provides burning cross property another highway public place prima facie evidence intent intimidate person group persons code ann language added amendment earlier portion statute criminalizing cross burning intent intimidate ante part prohibitory statute time respondents burned crosses whole statute time ents conduct counts purposes first amendment see likely significance evidence provision primary effect skew jury deliberations toward conviction cases evidence intent intimidate relatively weak arguably consistent solely ideological reason burning understand provision may work recall symbolic act burning cross without consistent intent intimidate intent make ideological statement free aim threaten ante one tell intimidating instance wholly ideological one reference circumstance real world course prosecutions always circumstances factfinder always learn something isolated fact cross burning sometimes circumstances show intent intimidate sometimes least equivocal cases white supremacist group burns cross initiation ceremony political rally visible public case factfinder aware prima facie evidence provision jury respondent black case ante provision practical effect tilting jury thinking favor prosecution significant provision permits factfinder conclusion defendant acted proscribable punishable intent without indication indication almost always presented significant provision encourage factfinder err side finding intent intimidate evidence circumstances fails point clarity either criminal intent permissible one effect distortion difficult remedy since guilty verdict survive sufficiency review unless defendant show viewing evidence light favorable prosecution rational trier fact found essential elements crime beyond reasonable doubt jackson virginia provision thus tend draw nonthreatening ideological expression within ambit prohibition intimidating expression justice notes ante plurality opinion extent prima facie evidence provision skews prosecutions skews statute toward suppressing ideas thus appropriate way consider statute prima facie evidence term view overbroad statutory definition amenable severance narrowing construction question permissible scope arguably overbroad statute claim clearly statute exception general prohibition proscriptions exception warranted statute terms show suppression ideas may afoot accordingly way look prima facie evidence provision consider indication afoot look provision purpose obvious significance mechanism bringing within statute prohibition pression doubtfully threatening though certainly distasteful difficult conceive intimidation case easier prove one cross burning assuming circumstances suggesting intimidation present provision apparently unnecessary legitimate prosecution intimidation therefore quite enough raise question whether virginia statute seeks mere protection virulent form intimidation consequently bars conclusion exception general rule warranted ground realistic little realistic possibility official suppression ideas afoot since exception save statute content based survive narrowly tailored serve compelling state interest stringent test statute pass statute banning intimidation achieve object without singling particular content iv conclude statute three respondents prosecuted violates first amendment since statute distinction invalid time charged activities regardless whether prima facie evidence provision given effect respondent individual case view severance prima facie evidence provision eliminate unconstitutionality whole statute time respondents conduct therefore affirm judgment virginia vacating respondents convictions dismissing indictments accordingly concur judgment respondent black dissent respondents elliott footnotes granted certiorari commonwealth enacted another statute designed remedy constitutional problems identified state see code ann section bans burning object done intent intimidating person group persons statute contain prima facie evidence provision section however repeal statute issue case justice thomas argues dissent cross burning conduct expression post course true burning cross conduct equally true first amendment protects symbolic conduct well pure speech see supra justice thomas previously recognized burning cross symbol hate symbol white supremacy capitol square review advisory bd pinette thomas concurring footnotes guest quoting indictment charging conspiracy interfere federally secured rights inter alia burning crosses night public view shooting negroes beating negroes killing negroes damaging destroying property negroes pursuing negroes automobiles ening guns pospisil defendants burned cross victims yard slashed tires fired guns cert denied stewart cross burning precipitated exchange gunfire tween victim perpetrators cert denied mcdermott defendants sought discourage blacks using public park burning cross park well waving baseball bats axe handles knives throwing rocks bottles veering cars towards black persons physically chasing black persons park cox state crim app defendant participated evening cross burning murder cert denied robert caro years lyndon johnson master senate referring wave southern bombings beatings sniper fire late sponse efforts desegregate schools buses parks newton newton supra observing jewish chants subjected boycotts threats cross burnings sometimes acts violence klan sympathizers id describing cross burning beatings directed black family refused demands sell home id describing incident cross burning brick throwing home jewish id describing campaign cross burning property damage directed vietnamese grant fishermen wyn wade supra describing incidents cross burning beatings kidnapping terrorism directed union organizers south id cross burnings associated shooting cars id cross burnings associated assaults blacks ard kluger simple justice describing cross burning subsequent shooting home federal judge issued desegregation decisions leonard rubinowitz imani perry crimes without punishment white neighbors tance black entry crim criminology fall noting escalating campaign eject minority family white neighborhood begin cross burnings window breaking threatening telephone calls culminate bombings describing incidents cross burning accompanied violence cross burned manakin third area richmond scribing virginia cross burning accompanied gunfire see code repealed required separation white colored place entertainment public assemblage violation misdemeanor code repealed prohibited racial intermarriage code repealed white colored persons shall taught school code repealed required separate listings white colored persons failed pay poll tax code repealed prohibited fraternal associations white colored members code amended remove race required racial separation prison code repealed authorized state corporation commission require separate waiting rooms white colored races code repealed required motor carries separate white colored passengers violation misdemeanor code repealed railroads code repealed required separate personal property tax books whites colored explained allen permissive inference presumption allows require trier fact infer elemental fact proof prosecutor basic one places burden kind defendant situation basic fact may constitute prima facie evidence elemental fact permissive presumption leaves trier fact free credit reject inference shift burden proof affects application reasonable doubt standard facts case rational way trier make connection permitted inference id internal citations omitted contrast mandatory presumption may affect strength reasonable doubt burden also placement burden tells trier must find elemental fact upon proof basic fact least unless defendant come forward evidence rebut presumed connection two facts id footnotes plurality also asserts even defendant like black presents defense prima facie evidence provision makes likely jury find intent intimidate regardless particular facts case ante basis assertion virginia opinion nance commonwealth uncertain terms presentation prima facie case neither jury duty determine questions fact weight whole evidence emphasis added overbreadth course framework analysis employed virginia see examining provision section labeled overbreadth analysis holding provision overbroad likewise submissions parties analyses provision focus question overbreadth brief petitioner confining discussion provision section titled virginia statute overbroad brief respondents arguing prima facie evidence provision render statute overbroad reply brief petitioner dividing discussion provision sections titled real overbreadth substantial overbreadth reliance overbreadth doctrine understandable made clear succeed facial challenge without relying overbreadth doctrine challenger must establish set circumstances exists act valid salerno opinion concedes speech covered constitutionally proscribed ante unquestionably process elements criminal offense established jury trial may raise serious constitutional concerns typically however concerns sound due process first amendment overbreadth county ulster cty allen barnes winship respondents case challenged due process clause neither plurality virginia relies due process declaring statute invalid confronted incontrovertible fact statute easily passes overbreadth analysis plurality driven truly startling assertion statute invalid applications may nevertheless facially invalidated even overbroad expression proposition plurality find jurisprudence appears dictum opinion secretary state md joseph munson see rehnquist joined burger powell dissenting stare decisis explain newfound affection errant doctrine even stare decisis applied dictum holding later opinion joined six justices flatly repudiated see salerno rehnquist joined white blackmun powell scalia jj succeed facial challenge without relying overbreadth doctrine challenger must establish set circumstances exists act valid even willing plurality apparently ignore repudiation munson dictum case provides foundation whatever facially invalidating statute conditions presented willingness facially invalidate statute munson without reliance first amendment overbreadth premised conclusion challenged provision invalid applications explained core easily identifiable constitutionally proscribable conduct statute prohibits munson stated flaw statute simply includes within sweep impermissible applications applications operates fundamentally mistaken premise high solicitation costs accurate measure fraud unless plurality prepared abandon contention takes great pains establish history cross burning country shows cross burning often intimidating intended create pervasive fear victims target violence ante difficult see munson bearing constitutionality provision plurality reliance terminiello chicago mistaken case deemed jury instruction rather ordinance review constitutionally infirm sure held jury instruction never support constitutionally valid conviction quite different holding ordinance facially invalid insofar ordinance concerned terminiello made repeated references nature challenge noting defendant maintained times ordinance applied conduct violated right free speech emphasis added noting construed applied provision least contains parts unconstitutional emphasis added pinch statute application emphasis added ibid record makes clear petitioner times challenged constitutionality ordinance construed applied emphasis added see also isserles overcoming overbreadth facial challenges valid rule requirement rev characterizing terminiello adopting jury instruction authoritative narrowing construction breach peace ordinance ultimately confining decision overturning defendant conviction rather invalidating statute face though jury may well embraced former constitutionally permissible understanding duties possibility enough dissipate cloud constitutional doubt see sandstrom montana refusing assume jury embraced constitutionally sound understanding ambiguous instruction discount possibility jury may interpreted instruction improperly footnotes although three examples given third may skipped covers misleading advertising particular industry risk fraud thought great thus deals commercial speech separate doctrine standards paul conclusion also goes second exception relating effects secondary effects jurisprudence presupposes regulation issue unrelated suppression free expression renton supra