The protections afforded by the First Amendment are not absolute, and the government may regulate certain categories of expression consistent with the U.S. Constitution. The First Amendment permits 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.
The first respondent burned a cross during a Ku Klux Klan rally, and the second and third respondents burned a cross in the yard of an African-American neighbor who complained about one respondent's use of his backyard as a firing range. Respondents contended that their expressive conduct in burning the crosses was protected by their constitutional right to freedom of speech. Respondents were convicted in separate cases of burning crosses with the intent to intimidate as proscribed by Va. Code Ann. § 18.2-423(1996) which also provided that any cross-burning was prima facie evidence of intent to intimidate.
Is the provision against cross-burning unconstitutional in as much as it views such acts as prima facie evidence of having an intention to intimidate?
The United States Supreme Court held, however, that the prohibition of cross-burning with the intent to intimidate under § 18.2-423 was not unconstitutional since it banned conduct rather than expression. While cross-burning could constitute expression, such expressive conduct was not proscribed unless it was done with the intent to intimidate, and targeting cross-burning was reasonable because burning a cross was historically a particularly virulent form of intimidation. However, a plurality of the Supreme Court asserted that the statutory provision that any cross-burning was prima facie evidence of intent to intimidate, which was interpreted under state law to mean that cross-burning by itself could support a conviction without further evidence of intent, was an unconstitutional restraint on speech.