Jonathan Stephen O'Mara v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia
JONATHAN STEPHEN O'MARA
v. Record No. 0992-99-1
COMMONWEALTH OF VIRGINIA OPINION BY
JUDGE RICHARD S. BRAY
RICHARD J. ELLIOTT OCTOBER 3, 2000
v. Record No. 0997-99-1
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Kevin E. Martingayle (Stallings & Richardson,
P.C., on briefs), for Jonathan Stephen
O'Mara.
James O. Broccoletti (Zoby & Broccoletti, on
brief), for Richard J. Elliott.
H. Elizabeth Shaffer, Assistant Attorney
General; John H. McLees, Jr., Senior
Assistant Attorney General (Mark L. Earley,
Attorney General, on briefs), for appellee.
Pursuant to the terms of a plea agreement, Jonathan O'Mara
pled guilty to "Attempted Cross Burning" and "Conspiracy to
Commit a Felony," violations of Code §§ 18.2-423 and 18.2-22,
respectively, expressly reserving the right to appeal a prior
order of the trial court which denied his challenge to the
constitutionality of Code § 18.2-423. In a separate proceeding,
Richard J. Elliott, codefendant with O'Mara, was convicted by a
jury for attempted cross burning, after joining with defendant
O'Mara in the unsuccessful challenge to the constitutionality of
Code § 18.2-423 before the trial court. 1
Accordingly, both O'Mara and Elliott (defendants) maintain
on appeal "that the code section is unconstitutional as
violative of the free speech and expression protections"
guaranteed by both the United States and Virginia Constitutions.
Joining the two appeals for resolution by this Court, we affirm
the respective convictions.
I.
The substantive facts are uncontroverted. On the evening
of May 2, 1998, defendants, together with "approximately fifteen
individuals," were "consuming alcohol" at the Virginia Beach
home of David Targee. When defendant Elliott expressed
unspecified "complaint[s] . . . about his neighbor," James
Jubilee, and his desire to "'get back' at him," someone
"suggested that they burn a cross in [Jubilee's] yard." In
response, Targee and defendants immediately constructed a crude
cross in Targee's garage and proceeded in Targee's truck to the
Jubilee home. Elliott "handed the cross" to defendant O'Mara,
who erected and ignited it on Jubilee's property, and the three
1
Although Judge Lowe presided at the trials of both O'Mara
and Elliott, defendants' constitutional challenges were decided
by Judge Alan E. Rosenblatt, following an extensive hearing and
related argument and memoranda of law.
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returned to Targee's residence. The respective records do not
clearly specify Jubilee's race.
Jubilee later discovered the "partially burned cross" and
notified police, resulting in the subject prosecutions for
violations of Code § 18.2-423 and the attendant conspiracy.
II.
Code § 18.2-423 provides:
It shall be unlawful for any person or
persons, with the intent of intimidating any
person or group of persons, to burn, or
cause to be burned, a cross on the property
of another, a highway or other public place.
Any person who shall violate any provision
of this section shall be guilty of a Class 6
felony.
Any such burning of a cross shall be
prima facie evidence of an intent to
intimidate a person or group of persons.
Defendants contend that the statute impermissibly infringes upon
expressive conduct, speech protected by the First and Fourteenth
Amendments to the Constitution of the United States and Article
I, § 12 of the Virginia Constitution, and, therefore, is
"plainly unconstitutional." 2
"'In assessing the constitutionality of a statute . . .
[t]he burden is on the challenger to prove the alleged
constitutional defect.'" Woolfolk v. Commonwealth, 18 Va. App.
2
"[L]itigants may challenge a statute on first amendment
grounds even when their own speech is unprotected." Coleman v.
City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42
(1988) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).
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840, 848, 447 S.E.2d 530, 534 (1994) (quoting Perkins v.
Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991)).
"Every act of the legislature is presumed to
be constitutional, and the Constitution is
to be given a liberal construction so as to
sustain the enactment in question, if
practicable." Bosang v. Iron Belt Bldg. &
Loan Ass'n, 96 Va. 119, 123, 30 S.E. 440,
441 (1898). "When the constitutionality of
an act is challenged, a heavy burden of
proof is thrust upon the party making the
challenge. All laws are presumed to be
constitutional and this presumption is one
of the strongest known to the law."
Harrison v. Day, 200 Va. 764, 770, 107
S.E.2d 594, 598 (1959).
Moses v. Commonwealth, 27 Va. App. 293, 298-99, 498 S.E.2d 451,
454 (1998).
The First Amendment declares, "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances." The
Fourteenth Amendment prohibits state action in violation of the
First Amendment.
Similarly, Article I, § 12 of the Virginia Constitution
establishes:
That the freedoms of speech and of the press
are among the great bulwarks of liberty, and
can never be restrained except by despotic
governments; that any citizen may freely
speak, write, and publish his sentiments on
all subjects, being responsible for the
abuse of that right; that the General
Assembly shall not pass any law abridging
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the freedom of speech or of the press, nor
the right of the people peaceably to
assemble, and to petition the government for
the redress of grievances.
"Our courts have consistently held that the protections afforded
under the Virginia Constitution are co-extensive with those in
the United States Constitution." Bennefield v. Commonwealth, 21
Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996).
Although "[t]he First Amendment literally forbids the
abridgement only of 'speech,'" the Supreme Court has "long
recognized that its protection does not end at the spoken or
written word." Texas v. Johnson, 491 U.S. 397, 404 (1989).
"[C]onduct may be 'sufficiently imbued with elements of
communication to fall within the scope of the First and
Fourteenth Amendments.'" Id. (quoting Spence v. Washington, 418
U.S. 405, 409 (1974)). In identifying expressive conduct, the
Court must determine "whether '[a]n intent to convey a
particularized message was present, and [whether] the likelihood
was great that the message would be understood by those who
viewed it.'" Id. (alterations in original) (quoting Spence, 418
U.S. at 410-11). If so, a proscription of such activity by
government "because of disapproval of the ideas expressed" is
"content based" suppression of free speech, offensive to the
First Amendment and "presumptively invalid." R.A.V. v. City of
St. Paul, 505 U.S. 377, 382 (1992).
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However, "our society . . . has permitted restrictions upon
the content of speech in a few limited areas, which are 'of such
slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social
interest in order and morality.'" Id. at 382-83 (quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). Thus,
First Amendment protection "does not include a freedom to
disregard these traditional limitations," thereby allowing
government to regulate obscenity, defamation, "fighting words,"
id. at 383 (citing Chaplinsky, 315 U.S. at 572), and threats of
violence. See id. at 383, 388 (citing Watts v. United States,
394 U.S. 705, 707 (1969)); see also In re: Steven S., 31 Cal.
Rptr. 2d 644, 647 (Ct. App. 1994) (holding that threats and
fighting words are "remove[d] . . . from the scope of the First
Amendment"); Florida v. T.B.D., 656 So. 2d 479, 480-81 (Fla.
1995), cert. denied, 516 U.S. 1145 (1996) (concluding that
threats of violence and fighting words are proscribable because
government has "valid interest" in protecting citizens both from
fear of violence and violence).
The "'true threat'" doctrine articulated by the Supreme
Court in Watts permits punishment of actual speech or expressive
conduct "when a reasonable person would foresee that the threat
would be interpreted as a serious expression of intention to
inflict bodily harm." In re: Steven S., 31 Cal. Rptr. 2d at
647 (citing Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir.
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1990)). Similarly, the Court's "fighting words doctrine"
expressed in Chaplinsky removes the shield of the First
Amendment from "statements 'which by their very utterance
inflict injury or tend to incite an immediate breach of the
peace.'" Id. (quoting Chaplinsky, 315 U.S. at 572); see Cohen
v. California, 403 U.S. 15, 20 (1971) (describing fighting words
as expressions likely to provoke a violent reaction when
directed to another).
Here, the provisions of Code § 18.2-423 specifically
prohibit the burning of a cross "on the property of another, a
highway or other public place," "with the intent of intimidating
any person or group of persons." Historically, a flaming cross
is "inextricably linked . . . to sudden and precipitous violence
– lynchings, shootings, whippings, mutilations, and
home-burnings," a "connection . . . [with] forthcoming violence
[that] is clear and direct." T.B.D., 656 So. 2d at 481. Hence,
"a burning cross conveys ideas capable of eliciting powerful
responses from those engaging in the conduct and those receiving
the message." State v. Ramsey, 430 S.E.2d 511, 514 (S.C. 1992).
Manifestly, the pernicious message of such conduct, a clear
and direct expression of an intention to do one harm,
constitutes a true threat envisioned by Watts, irrespective of
racial, religious, ethnic or like characteristics peculiar to
the victim. Moreover, the attendant fear and intimidation
subjects the victim to an immediate and calculated injury that
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invites a breach of the peace, fighting words within the
intendment of Chaplinsky. Thus, although such expressive
conduct doubtless constitutes speech, the prohibition of which
unavoidably implicates content, the message is beyond the
protection of the First Amendment and appropriately subject to
proscription by government.
Defendants' reliance upon Brandenburg v. Ohio, 395 U.S. 444
(1969), to support the contention that Code § 18.2-423
unconstitutionally prohibits "merely intimidating someone," at
once ignores the well-established symbolism of the burning cross
and misapplies Brandenburg. Brandenburg addressed a challenge
to the constitutionality of Ohio's "Criminal Syndicalism
statute," which proscribed, inter alia, the "'advocacy . . .
[of] the duty, necessity, or propriety of crime, sabotage,
violence or unlawful methods of terrorism as a means of
accomplishing industrial or political reform.'" Id. at 444-45.
Thus, the Brandenburg Court was concerned with the propriety of
governmental restrictions on the "advocacy of the use of force
or of law violation" in the context of a reform movement, an
issue unrelated to the vile and malevolent expression
contemplated by Code § 18.2-423. Id. at 447. Accordingly, the
Brandenburg admonishment that states may "forbid or proscribe
[such] advocacy" only if "directed to inciting or producing
imminent lawless action and . . . likely to incite or produce
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such action" does not similarly delimit proscribable threats and
fighting words. Id.
Defendants' assertion that R.A.V. v. St. Paul "makes it
clear . . . § 18.2-423 is unconstitutional" is, likewise,
without merit. R.A.V. examined the constitutionality of a St.
Paul, Minnesota ordinance, which provided, in pertinent part,
Whoever places on public or private property
a symbol, object, appellation,
characterization or graffiti, including, but
not limited to, a burning cross . . . which
one knows or has reasonable grounds to know
arouses anger, alarm or resentment in others
on the basis of race, color, creed, religion
or gender commits disorderly conduct and
shall be guilty of a misdemeanor.
R.A.V., 505 U.S. at 380 (citing Minn. Legis. Code § 292.02
(1990)). Unlike Code § 18.2-423, which proscribes cross
burnings with the intent to intimidate anyone, the St. Paul
ordinance prohibited such "speech solely on the basis of the
subjects the speech addresses," race, color, creed, religion or
gender. R.A.V., 505 U.S. at 381.
In declaring the enactment unconstitutional, the Supreme
Court accepted the "authoritative statement" by the Minnesota
Supreme Court "that the ordinance reaches only those expressions
that constitute 'fighting words,'" 3 id. at 381, and reaffirmed
the doctrine that "areas of speech can, consistently with the
3
In overruling defendants' constitutional challenges in the
instant prosecutions, Judge Rosenblatt also determined that Code
§ 18.2-243 regulated fighting words.
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First Amendment, be regulated because of their constitutionally
proscribable content – (obscenity, defamation, [threats,
fighting words] etc.)." Id. at 383 (emphasis in original).
However, the Court cautioned that such "categories of speech
[are not] entirely invisible to the Constitution" and cannot "be
made the vehicles for content discrimination unrelated to their
distinctively proscribable content." Id. at 383-84. Thus, when
"St. Paul . . . proscribed fighting words of whatever manner
that communicates messages of racial, gender or religious
intolerance," the city impermissibly engaged in "[s]electivity
[which] creates the possibility that [it] is seeking to handicap
the expression of particular ideas." Id. at 394 (emphasis
added); see In re: Steven S., 31 Cal. Rptr. 2d at 649 ("speech
and expressive conduct may be regulated [but] such regulation
may not discriminate within that category on the basis of
content"); T.B.D., 656 So. 2d at 481 (such regulation may not
"play[] favorites").
In contrast, Code § 18.2-423 regulates, without favor or
exception, conduct, which, despite elements of expression and
content, is unprotected by the First Amendment. 4
4
Post-R.A.V. decisions of other jurisdictions cited by
defendant in support of a different result involve statutes
substantially dissimilar from Code § 18.2-423. See Pinette v.
Capitol Square Review and Advisory Bd., 874 F. Supp. 791 (S.D.
Ohio 1994) (statute established permit requirements to conduct
public assembly); State v. Shelton, 629 A.2d 753 (Md. 1993)
(statute proscribed cross burning to protect property owners
from unwanted fires and safeguard community from fires
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Finally, defendant challenges Code § 18.2-423, first, as
overbroad, regulating both protected and unprotected speech,
and, secondly, as underinclusive, ignoring other modes of
proscribable speech. However, overbreadth assumes
constitutional dimension only when "'there [is] a realistic
danger that the statute . . . will significantly compromise
recognized First Amendment protections of parties not before the
court.'" Parker v. Commonwealth, 24 Va. App. 681, 690, 485
S.E.2d 150, 154-55 (1997) (quoting Members of City Council of
City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
800-01 (1984)). The prohibition of Code § 18.2-423 is expressly
limited to a person or persons burning a cross with the specific
intent to intimidate another, a threat and fighting words
unworthy of First Amendment guarantees. Further,
underinclusiveness is condemned by R.A.V. only if the result is
content discrimination. See R.A.V., 505 U.S. at 387. Code
§ 18.2-423 criminalizes a long recognized, particularly virulent
generally); State v. Vawter, 642 A.2d 349 (N.J. 1994) (statute
proscribed messages based upon race, color, creed or religion);
State v. Talley, 858 P.2d 217 (Wash. 1993) (statute proscribed
certain conduct related to the race, color, religion, ancestry,
natural origin, or mental, physical or sensory handicap of
another).
In contrast, jurisdictions examining the constitutionality
of statutes more akin to Code § 18.2-423 are in accord with our
conclusion. See In re: Steven S., 31 Cal. Rptr. 2d 644
(statute proscribed cross-burning intended to terrorize owner or
occupant); T.B.D., 656 So. 2d 479 (statute proscribed burning of
cross on property of another without permission).
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and incendiary mode of proscribable expressive conduct, a
prohibition free of content discrimination.
We, therefore, conclude that Code § 18.2-423 suffers from
none of the several unconstitutional infirmities advanced by
defendants. The statute targets only expressive conduct
undertaken with the intent to intimidate another, conduct
clearly proscribable both as fighting words and a threat of
violence. The statute does not discriminate in its prohibition
and is neither overbroad nor underinclusive.
Accordingly, we affirm the convictions.
Affirmed.
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