OCTOBER TERM, 2002

															Syllabus

															VIRGINIA v. BLACK ET AL.

															CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 01-1107. Argued
December 11, 2002-Decided April 7, 2003

															Respondents were convicted separately of violating a Virginia
statute that makes it a felony "for any person . . .,
with the intent of intimidating any person or group . . .
, to burn a cross on the property of another, a highway or other
public place," and specifies that "[a]ny such burning
. . . shall be prima facie evidence of an intent to
intimidate a person or group." When respondent Black objected on
First Amendment grounds to his trial court's jury instruction that
cross burning by itself is sufficient evidence from which the
required "intent to intimidate" could be inferred, the prosecutor
responded that the instruction was taken straight out of the
Virginia Model Instructions. Respondent O'Mara pleaded guilty to
charges of violating the statute, but reserved the right to
challenge its constitutionality. At respondent Elliott's trial, the
judge instructed the jury as to what the Commonwealth had to prove,
but did not give an instruction on the meaning of the word
"intimidate," nor on the statute's prima facie evidence provision.
Consolidating all three cases, the Virginia Supreme Court held that
the crossburning statute is unconstitutional on its face; that it
is analytically indistinguishable from the ordinance found
unconstitutional in R. A. V. v. St. Paul , 505 U. S. 377 ; that it
discriminates on the basis of content and viewpoint since it
selectively chooses only cross burning because of its distinctive
message; and that the prima facie evidence provision renders the
statute overbroad because the enhanced probability of prosecution
under the statute chills the expression of protected speech. Held: The judgment is affirmed in part, vacated in
part, and remanded. 262 Va. 764, 553 S. E. 2d 738, affirmed in
part, vacated in part, and remanded.

															JUSTICE O'CONNOR delivered the opinion of the Court with respect
to Parts I, II, and III, concluding that a State, consistent with
the First Amendment, may ban cross burning carried out with the
intent to intimidate. Pp. 352-363.

															(a) Burning a cross in the United States is inextricably
intertwined with the history of the Ku Klux Klan, which, following
its formation in 1866, imposed a reign of terror throughout the
South, whipping, threatening, and murdering blacks, southern whites
who disagreed with the Klan, and "carpetbagger" northern whites.
The Klan has often used cross burnings as a tool of intimidation
and a threat of impending vio- [344] lence, although such burnings have also remained potent symbols
of shared group identity and ideology, serving as a central feature
of Klan gatherings. To this day, however, regardless of whether the
message is a political one or is also meant to intimidate, the
burning of a cross is a "symbol of hate." Capitol Square Review
and Advisory Bd. v. Pinette , 515 U. S. 753 , 771. While
cross burning does not inevitably convey a message of intimidation,
often the cross burner intends that the recipients of the message
fear for their lives. And when a cross burning is used to
intimidate, few if any messages are more powerful. Pp. 352-357.

															(b) The protections the First Amendment affords speech and
expressive conduct are not absolute. This Court has long recognized
that the government may regulate certain categories of expression
consistent with the Constitution. See, e. g., Chaplinsky v. New
Hampshire , 315
U. S. 568 , 571-572. For example, the First Amendment permits a
State to ban "true threats," e. g., Watts v. United
States , 394 U.
S. 705 , 708 (per curiam) , which encompass those
statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals, see, e. g.,
ibid. The speaker need not actually intend to carry out the
threat. Rather, a prohibition on true threats protects individuals
from the fear of violence and the disruption that fear engenders,
as well as from the possibility that the threatened violence will
occur. R. A. V. , supra , at 388. Intimidation in
the constitutionally proscribable sense of the word is a type of
true threat, where a speaker directs a threat to a person or group
of persons with the intent of placing the victim in fear of bodily
harm or death. Respondents do not contest that some cross burnings
fit within this meaning of intimidating speech, and rightly so. As
the history of cross burning in this country shows, that act is
often intimidating, intended to create a pervasive fear in victims
that they are a target of violence. pp. 358-360.

															(c) The First Amendment permits Virginia to outlaw cross
burnings done with the intent to intimidate because burning a cross
is a particularly virulent form of intimidation. Instead of
prohibiting all intimidating messages, Virginia may choose to
regulate this subset of intimidating messages in light of cross
burning's long and pernicious history as a signal of impending
violence. A ban on cross burning carried out with the intent to
intimidate is fully consistent with this Court's holding in R.
A. V. Contrary to the Virginia Supreme Court's ruling, R.
A. V. did not hold that the First Amendment prohibits all forms of contentbased discrimination within a
proscribable area of speech. Rather, the Court specifically stated
that a particular type of content discrimination does not violate
the First Amendment when the basis for it consists [345] entirely of the very reason its entire class of speech is
proscribable. 505 U. S., at 388. For example, it is permissible to
prohibit only that obscenity that is most patently offensive in its
prurience-i. e. , that which involves the most lascivious
displays of sexual activity. Ibid. Similarly, Virginia's
statute does not run afoul of the First Amendment insofar as it
bans cross burning with intent to intimidate. Unlike the statute at
issue in R. A. V. , the Virginia statute does not single
out for opprobrium only that speech directed toward "one of the
specified disfavored topics." Id. , at 391. It does not
matter whether an individual burns a cross with intent to
intimidate because of the victim's race, gender, or religion, or
because of the victim's "political affiliation, union membership,
or homosexuality." Ibid. Thus, just as a State may
regulate only that obscenity which is the most obscene due to its
prurient content, so too may a State choose to prohibit only those
forms of intimidation that are most likely to inspire fear of
bodily harm. Pp. 360-363.

															JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE STEVENS,
and JUSTICE BREYER, concluded in Parts IV and V that the Virginia
statute's prima facie evidence provision, as interpreted through
the jury instruction given in respondent Black's case and as
applied therein, is unconstitutional on its face. Because the
instruction is the same as the Commonwealth's Model Jury
Instruction, and because the Virginia Supreme Court had the
opportunity to expressly disavow it, the instruction's construction
of the prima facie provision is as binding on this Court as if its
precise words had been written into the statute. E. g.,
Terminiello v. Chicago , 337 U. S. 1 , 4. As
construed by the instruction, the prima facie provision strips away
the very reason why a State may ban cross burning with the intent
to intimidate. The provision permits a jury to convict in every
cross burning case in which defendants exercise their
constitutional right not to put on a defense. And even where a
defendant like Black presents a defense, the provision makes it
more likely that the jury will find an intent to intimidate
regardless of the particular facts of the case. It permits the
Commonwealth to arrest, prosecute, and convict a person based
solely on the fact of cross burning itself. As so interpreted, it
would create an unacceptable risk of the suppression of ideas. E.g., Secretary of State of Md. v. Joseph H. Munson Co. , 467 U. S. 947 ,
965, n. 13. The act of burning a cross may mean that a person is
engaging in constitutionally proscribable intimidation, or it may
mean only that the person is engaged in core political speech. The
prima facie evidence provision blurs the line between these
meanings, ignoring all of the contextual factors that are necessary
to decide whether a particular cross burning is intended to
intimidate. The First Amendment does not permit such a shortcut.
Thus, Black's conviction cannot stand, and the judgment as [346] to him is affirmed. Conversely, Elliott's jury did not receive
any instruction on the prima facie provision, and the provision was
not an issue in O'Mara's case because he pleaded guilty. The
possibility that the provision is severable, and if so, whether
Elliott and O'Mara could be retried under the statute, is left
open. Also left open is the theoretical possibility that, on
remand, the Virginia Supreme Court could interpret the prima facie
provision in a manner that would avoid the constitutional
objections described above. Pp. 363-368.

															JUSTICE SCALIA agreed that this Court should vacate and remand
the judgment of the Virginia Supreme Court with respect to
respondents Elliott and O'Mara so that that court can have an
opportunity authoritatively to construe the cross-burning statute's
prima-facie-evidence provision. Pp. 368, 379.

															JUSTICE SOUTER, joined by JUSTICE KENNEDY and JUSTICE GINSBURG,
concluded that the Virginia statute is unconstitutional and cannot
be saved by any exception under R. A. V. v. St. Paul , 505 U. S. 377 ,
and therefore concurred in the Court's judgment insofar as it
affirms the invalidation of respondent Black's conviction. Pp.
380-381, 387.

															O'CONNOR, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and III, in
which REHNQUIST, C. J., and STEVENS, SCALIA, and BREYER, JJ.,
joined, and an opinion with respect to Parts IV and V, in which
REHNQUIST, C. J., and STEVENS and BREYER, JJ., joined. STEVENS, J.,
filed a concurring opinion, post , p. 368. SCALIA, J.,
filed an opinion concurring in part, concurring in the judgment in
part, and dissenting in part, in which THOMAS, J., joined as to
Parts I and II, post , p. 368. SOUTER, J., filed an opinion
concurring in the judgment in part and dissenting in part, in which
KENNEDY and GINSBURG, JJ., joined, post , p. 380. THOMAS,
J., filed a dissenting opinion, post , p. 388. William H. Hurd , State Solicitor of Virginia, argued
the cause for petitioner. With him on the brief were Jerry W
Kilgore , Attorney General, Maureen Riley Matsen and William E. Thro , Deputy State Solicitors, and Alison
P. Landry , Assistant Attorney General.

															Deputy Solicitor General Dreeben argued the cause for the United
States as amicus curiae urging reversal. With him on the brief were
Solicitor General Olson, Assistant Attorney General Boyd, Barbara
McDowell, Jessica Dunsay Silver, and Linda F. Thome. [347] Rodney A. Smolla argued the cause for respondents.

															With him on the brief were James O. Broccoletti, David P. Baugh,
and Kevin E. Martingayle.[ Footnote * ]

															JUSTICE O'CONNOR announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II, and
III, and an opinion with respect to Parts IV and V, in which THE
CHIEF JUSTICE, JUSTICE STEVENS, and JUSTICE BREYER join.

															In this case we consider whether the Commonwealth of Virginia's
statute banning cross burning with "an intent to intimidate a
person or group of persons" violates the First Amendment. Va. Code
Ann. § 18.2-423 (1996). We conclude that while a State, consistent
with the First Amendment, may ban cross burning carried out with
the intent to intimidate, the provision in the Virginia statute
treating any [348] cross burning as prima facie evidence of intent to intimidate
renders the statute unconstitutional in its current form.

															I

															Respondents Barry Black, Richard Elliott, and Jonathan O'Mara
were convicted separately of violating Virginia's cross-burning
statute, § 18.2-423. That statute 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." On August 22, 1998, Barry Black led a Ku Klux Klan rally in
Carroll County, Virginia. Twenty-five to thirty people attended
this gathering, which occurred on private property with the
permission of the owner, who was in attendance. The property was
located on an open field just off Brushy Fork Road (State Highway
690) in Cana, Virginia.

															When the sheriff of Carroll County learned that a Klan rally was
occurring in his county, he went to observe it from the side of the
road. During the approximately one hour that the sheriff was
present, about 40 to 50 cars passed the site, a "few" of which
stopped to ask the sheriff what was happening on the property. App.
71. Eight to ten houses were located in the vicinity of the rally.
Rebecca Sechrist, who was related to the owner of the property
where the rally took place, "sat and watched to see wha[t] [was]
going on" from the lawn of her in-laws' house. She looked on as the
Klan prepared for the gathering and subsequently conducted the
rally itself. Id. , at 103.

															During the rally, Sechrist heard Klan members speak about "what
they were" and "what they believed in." Id. , [349] at 106. The speakers "talked real bad about the blacks and the
Mexicans." Id. , at 109. One speaker told the assembled
gathering that "he would love to take a .30/.30 and just random[ly]
shoot the blacks." Ibid. The speakers also talked about
"President Clinton and Hillary Clinton," and about how their tax
money "goes to . . . the black people." Ibid. Sechrist testified that this language made her "very
. . . scared." Id. , at 110.

															At the conclusion of the rally, the crowd circled around a 25-
to 30-foot cross. The cross was between 300 and 350 yards away from
the road. According to the sheriff, the cross "then all of a sudden
. . . went up in a flame." Id. , at 71. As the
cross burned, the Klan played Amazing Grace over the loudspeakers.
Sechrist stated that the cross burning made her feel "awful" and
"terrible." Id. , at 110.

															When the sheriff observed the cross burning, he informed his
deputy that they needed to "find out who's responsible and explain
to them that they cannot do this in the State of Virginia." Id. , at 72. The sheriff then went down the driveway,
entered the rally, and asked "who was responsible for burning the
cross." Id. , at 74. Black responded, "I guess I am because
I'm the head of the rally." Ibid. The sheriff then told
Black, "[T]here's a law in the State of Virginia that you cannot
burn a cross and I'll have to place you under arrest for this." Ibid. Black was charged with burning a cross with the intent of
intimidating a person or group of persons, in violation of §
18.2-423. At his trial, the jury was instructed that "intent to
intimidate means the motivation to intentionally put a person or a
group of persons in fear of bodily harm. Such fear must arise from
the willful conduct of the accused rather than from some mere
temperamental timidity of the victim." Id. , at 146. The
trial court also instructed the jury that "the burning of a cross
by itself is sufficient evidence from which you may infer the
required intent." Ibid. When Black objected to this last
instruction on First Amendment grounds, [350] the prosecutor responded that the instruction was "taken
straight out of the [Virginia] Model Instructions." Id. ,
at 134. The jury found Black guilty, and fined him $2,500. The
Court of Appeals of Virginia affirmed Black's conviction. Rec. No.
1581-99-3 (Va. App., Dec. 19, 2000), App. 201.

															On May 2, 1998, respondents Richard Elliott and Jonathan O'Mara,
as well as a third individual, attempted to burn a cross on the
yard of James Jubilee. Jubilee, an AfricanAmerican, was Elliott's
next-door neighbor in Virginia Beach, Virginia. Four months prior
to the incident, Jubilee and his family had moved from California
to Virginia Beach. Before the cross burning, Jubilee spoke to
Elliott's mother to inquire about shots being fired from behind the
Elliott home. Elliott's mother explained to Jubilee that her son
shot firearms as a hobby, and that he used the backyard as a firing
range.

															On the night of May 2, respondents drove a truck onto Jubilee's
property, planted a cross, and set it on fire. Their apparent
motive was to "get back" at Jubilee for complaining about the
shooting in the backyard. Id. , at 241. Respondents were
not affiliated with the Klan. The next morning, as Jubilee was
pulling his car out of the driveway, he noticed the partially
burned cross approximately 20 feet from his house. After seeing the
cross, Jubilee was "very nervous" because he "didn't know what
would be the next phase," and because "a cross burned in your yard
. . . tells you that it's just the first round." Id. , at 231.

															Elliott and O'Mara were charged with attempted cross burning and
conspiracy to commit cross burning. O'Mara pleaded guilty to both
counts, reserving the right to challenge the constitutionality of
the cross-burning statute. The judge sentenced O'Mara to 90 days in
jail and fined him $2,500. The judge also suspended 45 days of the
sentence and $1,000 of the fine.

															At Elliott's trial, the judge originally ruled that the jury
would be instructed "that the burning of a cross by itself is [351] sufficient evidence from which you may infer the required
intent." Id. , at 221-222. At trial, however, the court
instructed the jury that the Commonwealth must prove that "the
defendant intended to commit cross burning," that "the defendant
did a direct act toward the commission of the cross burning," and
that "the defendant had the intent of intimidating any person or
group of persons." Id. , at 250. The court did not instruct
the jury on the meaning of the word "intimidate," nor on the prima
facie evidence provision of § 18.2-423. The jury found Elliott
guilty of attempted cross burning and acquitted him of conspiracy
to commit cross burning. It sentenced Elliott to 90 days in jail
and a $2,500 fine. The Court of Appeals of Virginia affirmed the
convictions of both Elliott and O'Mara. O'Mara v.
Common wealth, 33 Va. App. 525, 535 S. E. 2d 175 (2000).

															Each respondent appealed to the Supreme Court of Virginia,
arguing that § 18.2-423 is facially unconstitutional. The Supreme
Court of Virginia consolidated all three cases, and held that the
statute is unconstitutional on its face. 262 Va. 764, 553 S. E. 2d
738 (2001). It held that the Virginia cross-burning statute "is
analytically indistinguishable from the ordinance found
unconstitutional in R. A. V. v. St. Paul , 505 U. S. 377 (1992)]." Id. , at 772, 553 S. E. 2d, at 742. The Virginia statute,
the court held, discriminates on the basis of content since it
"selectively chooses only cross burning because of its distinctive
message." Id. , at 774, 553 S. E. 2d, at 744. The court
also held that the prima facie evidence provision renders the
statute overbroad because "[t]he enhanced probability of
prosecution under the statute chills the expression of protected
speech." Id. , at 777, 553 S. E. 2d, at 746.

															Three justices dissented, concluding that the Virginia
cross-burning statute passes constitutional muster because it
proscribes only conduct that constitutes a true threat. The
justices noted that unlike the ordinance found unconstitutional in R. A. V. v. St. Paul , 505 U. S. 377 (1992), the
Virginia [352] statute does not just target cross burning "on the basis of
race, color, creed, religion or gender." 262 Va., at 791, 553 S. E.
2d, at 753. Rather, "the Virginia statute applies to any individual
who burns a cross for any reason provided the cross is burned with
the intent to intimidate." Ibid. The dissenters also
disagreed with the majority's analysis of the prima facie provision
because the inference alone "is clearly insufficient to establish
beyond a reasonable doubt that a defendant burned a cross with the
intent to intimidate." Id. , at 795, 553 S. E. 2d, at 756.
The dissent noted that the burden of proof still remains on the
Commonwealth to prove intent to intimidate. We granted certiorari.
535 U. S. 1094 (2002).[ Footnote 1 ]

															II

															Cross burning originated in the 14th century as a means for
Scottish tribes to signal each other. See M. Newton & J.
Newton, The Ku Klux Klan: An Encyclopedia 145 (1991). Sir Walter
Scott used cross burnings for dramatic effect in The Lady of the
Lake, where the burning cross signified both a summons and a call
to arms. See W. Scott, The Lady of The Lake, canto third. Cross
burning in this country, however, long ago became unmoored from its
Scottish ancestry. Burning a cross in the United States is
inextricably intertwined with the history of the Ku Klux Klan.

															The first Ku Klux Klan began in Pulaski, Tennessee, in the
spring of 1866. Although the Ku Klux Klan started as a social club,
it soon changed into something far different. The Klan fought
Reconstruction and the corresponding drive to allow freed blacks to
participate in the political process. [353] Soon the Klan imposed "a veritable reign of terror" throughout
the South. S. Kennedy, Southern Exposure 31 (1991) (hereinafter
Kennedy). The Klan employed tactics such as whipping, threatening
to burn people at the stake, and murder. W. Wade, The Fiery Cross:
The Ku Klux Klan in America 48-49 (1987) (hereinafter Wade). The
Klan's victims included blacks, southern whites who disagreed with
the Klan, and "carpetbagger" northern whites.

															The activities of the Ku Klux Klan prompted legislative action
at the national level. In 1871, "President Grant sent a message to
Congress indicating that the Klan's reign of terror in the Southern
States had rendered life and property insecure." Jett v. Dallas
Independent School Dist., 491 U. S. 701, 722 (1989) (internal
quotation marks and alterations omitted). In response, Congress
passed what is now known as the Ku Klux Klan Act. See "An Act to
enforce the Provisions of the Fourteenth Amendment to the
Constitution of the United States, and for other Purposes," 17
Stat. 13 (now codified at 42 U. S. C. §§ 1983,1985, and 1986).
President Grant used these new powers to suppress the Klan in South
Carolina, the effect of which severely curtailed the Klan in other
States as well. By the end of Reconstruction in 1877, the first
Klan no longer existed.

															The genesis of the second Klan began in 1905, with the
publication of Thomas Dixon's The Clansmen: An Historical Romance
of the Ku Klux Klan. Dixon's book was a sympathetic portrait of the
first Klan, depicting the Klan as a group of heroes "saving" the
South from blacks and the "horrors" of Reconstruction. Although the
first Klan never actually practiced cross burning, Dixon's book
depicted the Klan burning crosses to celebrate the execution of
former slaves. Id. , at 324-326; see also Capitol
Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 770-771
(1995) (THOMAS, J., concurring). Cross burning thereby became
associated with the first Ku Klux Klan. When D. W. Griffith turned
Dixon's book into the movie The Birth of a Nation in 1915, [354] the association between cross burning and the Klan became
indelible. In addition to the cross burnings in the movie, a poster
advertising the film displayed a hooded Klansman riding a hooded
horse, with his left hand holding the reins of the horse and his
right hand holding a burning cross above his head. Wade 127. Soon
thereafter, in November 1915, the second Klan began.

															From the inception of the second Klan, cross burnings have been
used to communicate both threats of violence and messages of shared
ideology. The first initiation ceremony occurred on Stone Mountain
near Atlanta, Georgia. While a 40-foot cross burned on the
mountain, the Klan members took their oaths of loyalty. See Kennedy
163. This cross burning was the second recorded instance in the
United States. The first known cross burning in the country had
occurred a little over one month before the Klan initiation, when a
Georgia mob celebrated the lynching of Leo Frank by burning a
"gigantic cross" on Stone Mountain that was "visible throughout"
Atlanta. Wade 144 (internal quotation marks omitted).

															The new Klan's ideology did not differ much from that of the
first Klan. As one Klan publication emphasized, "We avow the
distinction between [the] races, . . . and we shall ever
be true to the faithful maintenance of White Supremacy and will
strenuously oppose any compromise thereof in any and all things." Id. , at 147-148 (internal quotation marks omitted).
Violence was also an elemental part of this new Klan. By September
1921, the New York World newspaper documented 152 acts of Klan
violence, including 4 murders, 41 floggings, and 27
tar-and-featherings. Wade 160.

															Often, the Klan used cross burnings as a tool of intimidation
and a threat of impending violence. For example, in 1939 and 1940,
the Klan burned crosses in front of synagogues and churches. See
Kennedy 175. After one cross burning at a synagogue, a Klan member
noted that if the cross burning did not "shut the Jews up, we'll
cut a few [355] throats and see what happens." Ibid. (internal
quotation marks omitted). In Miami in 1941, the Klan burned four
crosses in front of a proposed housing project, declaring, "We are
here to keep niggers out of your town . . . . When
the law fails you, call on us." Id. , at 176 (internal
quotation marks omitted). And in Alabama in 1942, in "a whirlwind
climax to weeks of flogging and terror," the Klan burned crosses in
front of a union hall and in front of a union leader's home on the
eve of a labor election. Id. , at 180. These cross burnings
embodied threats to people whom the Klan deemed antithetical to its
goals. And these threats had special force given the long history
of Klan violence.

															The Klan continued to use cross burnings to intimidate after
World War II. In one incident, an African-American "school teacher
who recently moved his family into a block formerly occupied only
by whites asked the protection of city police . . . after
the burning of a cross in his front yard." Richmond News Leader,
Jan. 21, 1949, p. 19, App. 312. And after a cross burning in
Suffolk, Virginia, during the late 1940's, the Virginia Governor
stated that he would "not allow any of our people of any race to be
subjected to terrorism or intimidation in any form by the Klan or
any other organization." D. Chalmers, Hooded Americanism: The
History of the Ku Klux Klan 333 (1980) (hereinafter Chalmers).
These incidents of cross burning, among others, helped prompt
Virginia to enact its first version of the cross-burning statute in
1950.

															The decision of this Court in Brown v. Board of
Education , 347
U. S. 483 (1954), along with the civil rights movement of the
1950's and 1960's, sparked another outbreak of Klan violence. These
acts of violence included bombings, beatings, shootings, stabbings,
and mutilations. See, e.g. , Chalmers 349-350; Wade
302-303. Members of the Klan burned crosses on the lawns of those
associated with the civil rights movement, assaulted the Freedom
Riders, bombed churches, and murdered blacks as well as whites [356] whom the Klan viewed as sympathetic toward the civil rights
movement.

															Throughout the history of the Klan, cross burnings have also
remained potent symbols of shared group identity and ideology. The
burning cross became a symbol of the Klan itself and a central
feature of Klan gatherings. According to the Klan constitution
(called the kloran), the "fiery cross" was the "emblem of that
sincere, unselfish devotedness of all klansmen to the sacred
purpose and principles we have espoused." The Ku Klux Klan Hearings
before the House Committee on Rules, 67th Cong., 1st Sess., 114,
Exh. G (1921); see also Wade 419. And the Klan has often published
its newsletters and magazines under the name The Fiery Cross. See id. , at 226, 489.

															At Klan gatherings across the country, cross burning became the
climax of the rally or the initiation. Posters advertising an
upcoming Klan rally often featured a Klan member holding a cross.
See N. MacLean, Behind the Mask of Chivalry: The Making of the
Second Ku Klux Klan 142-143 (1994). Typically, a cross burning
would start with a prayer by the "Klavern" minister, followed by
the singing of Onward Christian Soldiers. The Klan would then light
the cross on fire, as the members raised their left arm toward the
burning cross and sang The Old Rugged Cross. Wade 185. Throughout
the Klan's history, the Klan continued to use the burning cross in
their ritual ceremonies.

															For its own members, the cross was a sign of celebration and
ceremony. During a joint Nazi-Klan rally in 1940, the proceeding
concluded with the wedding of two Klan members who "were married in
full Klan regalia beneath a blazing cross." Id. , at 271.
In response to antimasking bills introduced in state legislatures
after World War II, the Klan burned crosses in protest. See
Chalmers 340. On March 26, 1960, the Klan engaged in rallies and
cross burnings throughout the South in an attempt to recruit 10
million members. See Wade 305. Later in 1960, the Klan became [357] an issue in the third debate between Richard Nixon and John
Kennedy, with both candidates renouncing the Klan. After this
debate, the Klan reiterated its support for Nixon by burning
crosses. See id. , at 309. And cross burnings featured
prominently in Klan rallies when the Klan attempted to move toward
more nonviolent tactics to stop integration. See id. , at
323; cf. Chalmers 368-369, 371-372, 380, 384. In short, a burning
cross has remained a symbol of Klan ideology and of Klan unity.

															To this day, regardless of whether the message is a political
one or whether the message is also meant to intimidate, the burning
of a cross is a "symbol of hate." Capitol Square Review and
Advisory Bd. v. Pinette , 515 U. S., at 771 (THOMAS, J.,
concurring). And while cross burning sometimes carries no
intimidating message, at other times the intimidating message is
the only message conveyed. For example, when a cross
burning is directed at a particular person not affiliated with the
Klan, the burning cross often serves as a message of intimidation,
designed to inspire in the victim a fear of bodily harm. Moreover,
the history of violence associated with the Klan shows that the
possibility of injury or death is not just hypothetical. The person
who burns a cross directed at a particular person often is making a
serious threat, meant to coerce the victim to comply with the
Klan's wishes unless the victim is willing to risk the wrath of the
Klan. Indeed, as the cases of respondents Elliott and O'Mara
indicate, individuals without Klan affiliation who wish to threaten
or menace another person sometimes use cross burning because of
this association between a burning cross and violence.

															In sum, while a burning cross does not inevitably convey a
message of intimidation, often the cross burner intends that the
recipients of the message fear for their lives. And when a cross
burning is used to intimidate, few if any messages are more
powerful. [358] III A

															The First Amendment, applicable to the States through the
Fourteenth Amendment, provides that "Congress shall make no law
. . . abridging the freedom of speech." The hallmark of
the protection of free speech is to allow "free trade in
ideas"-even ideas that the overwhelming majority of people might
find distasteful or discomforting. Abrams v. United
States , 250 U.
S. 616 , 630 (1919) (Holmes, J., dissenting); see also Texas
v. Johnson , 491
U. S. 397 , 414 (1989) ("If there is a bedrock principle
underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable"). Thus, the First Amendment
"ordinarily" denies a State "the power to prohibit dissemination of
social, economic and political doctrine which a vast majority of
its citizens believes to be false and fraught with evil
consequence." Whitney v. California , 274 U. S. 357 , 374 (1927)
(Brandeis, J., concurring). The First Amendment affords protection
to symbolic or expressive conduct as well as to actual speech. See, e.g., R. A. V. v. City of St. Paul , 505 U. S., at 382; Texas v. Johnson, supra , at 405-406; United States v.
O'Brien , 391 U.
S. 367 , 376-377 (1968); Tinker v. Des Moines Independent
Community School Dist. , 393 U. S. 503 , 505
(1969).

															The protections afforded by the First Amendment, however, are
not absolute, and we have long recognized that the government may
regulate certain categories of expression consistent with the
Constitution. See, e. g., Chaplinsky v. New Hampshire , 315 U. S. 568 ,
571-572 (1942) ("There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which
has never been thought to raise any Constitutional problem"). The
First Amendment permits "restrictions upon the content of speech in
a few limited areas, which are 'of such slight social value [359] 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.'" R. A. V. v. City of St. Paul, supra , at
382-383 (quoting Chaplinsky v. New Hampshire, supra , at
572).

															Thus, for example, a State may punish those words "which by
their very utterance inflict injury or tend to incite an immediate
breach of the peace." Chaplinsky v. New Hampshire, supra ,
at 572; see also R. A. V. v. City of St. Paul, supra , at
383 (listing limited areas where the First Amendment permits
restrictions on the content of speech). We have consequently held
that fighting words-"those personally abusive epithets which, when
addressed to the ordinary citizen, are, as a matter of common
knowledge, inherently likely to provoke violent reaction" -are
generally proscribable under the First Amendment. Cohen v.
California, 403 U. S. 15, 20 (1971); see also Chaplinsky
v. New Hampshire, supra , at 572. Furthermore, "the
constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force
or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to
incite or produce such action." Brandenburg v. Ohio , 395 U. S. 444 ,
447 (1969) (per curiam). And the First Amendment also
permits a State to ban a "true threat." Watts v. United States,
394 U. S. 705, 708 (1969) (per curiam) (internal
quotation marks omitted); accord, R. A. V. v. City of St. Paul,
supra , at 388 ("[T]hreats of violence are outside the First
Amendment"); Madsen v. Women's Health Center, Inc. , 512 U. S. 753 ,
774 (1994); Schenck v. Pro-Choice Network of Western N.Y. , 519 U. S. 357 ,
373 (1997).

															"True threats" encompass those statements where the speaker
means to communicate a serious expression of an intent to commit an
act of unlawful violence to a particular individual or group of
individuals. See Watts v. United States, supra , at 708
("political hyberbole" is not a true threat); R. A. V. v. City
of St. Paul , 505 U. S., at 388. The [360] speaker need not actually intend to carry out the threat.
Rather, a prohibition on true threats "protect[s] individuals from
the fear of violence" and "from the disruption that fear
engenders," in addition to protecting people "from the possibility
that the threatened violence will occur." Ibid. Intimidation in the constitutionally proscribable sense of the word
is a type of true threat, where a speaker directs a threat to a
person or group of persons with the intent of placing the victim in
fear of bodily harm or death. Respondents do not contest that some
cross burnings fit within this meaning of intimidating speech, and
rightly so. As noted in Part II, supra , the history of
cross burning in this country shows that cross burning is often
intimidating, intended to create a pervasive fear in victims that
they are a target of violence.

															B

															The Supreme Court of Virginia ruled that in light of R. A.
V. v. City of St. Paul, supra , even if it is constitutional to
ban cross burning in a content-neutral manner, the Virginia
cross-burning statute is unconstitutional because it discriminates
on the basis of content and viewpoint. 262 Va., at 771-776, 553 S.
E. 2d, at 742-745. It is true, as the Supreme Court of Virginia
held, that the burning of a cross is symbolic expression. The
reason why the Klan burns a cross at its rallies, or individuals
place a burning cross on someone else's lawn, is that the burning
cross represents the message that the speaker wishes to
communicate. Individuals burn crosses as opposed to other means of
communication because cross burning carries a message in an
effective and dramatic manner.[ Footnote 2 ] [361] The fact that cross burning is symbolic expression, however,
does not resolve the constitutional question. The Supreme Court of
Virginia relied upon R. A. V. v. City of St. Paul , supra,
to conclude that once a statute discriminates on the basis of this
type of content, the law is unconstitutional. We disagree.

															In R. A. V. , we held that a local ordinance that banned
certain symbolic conduct, including cross burning, when done with
the knowledge that such conduct would "'arouse anger, alarm or
resentment in others on the basis of race, color, creed, religion
or gender'" was unconstitutional. Id. , at 380 (quoting the
St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis.
Code § 292.02 (1990)). We held that the ordinance did not pass
constitutional muster because it discriminated on the basis of
content by targeting only those individuals who "provoke violence"
on a basis specified in the law. 505 U. S., at 391. The ordinance
did not cover "[t]hose who wish to use 'fighting words' in
connection with other ideas-to express hostility, for example, on
the basis of political affiliation, union membership, or
homosexuality." Ibid. This content-based discrimination
was unconstitutional because it allowed the city "to impose special
prohibitions on those speakers who express views on disfavored
subjects." Ibid. We did not hold in R. A. V. that the First Amendment
prohibits all forms of content-based discrimination within
a proscribable area of speech. Rather, we specifically stated that
some types of content discrimination did not violate the First
Amendment: "When the basis for the content discrimination consists entirely
of the very reason the entire class of speech at issue is
proscribable, no significant danger of idea or [362] viewpoint discrimination exists. Such a reason, having been
adjudged neutral enough to support exclusion of the entire class of
speech from First Amendment protection, is also neutral enough to
form the basis of distinction within the class." Id. , at
388. Indeed, we noted that it would be constitutional to ban only a
particular type of threat: "[T]he Federal Government can
criminalize only those threats of violence that are directed
against the President . . . since the reasons why threats
of violence are outside the First Amendment . . . have
special force when applied to the person of the President." Ibid. And a State may "choose to prohibit only that
obscenity which is the most patently offensive in its
prurience--i. e. , that which involves the most lascivious
displays of sexual activity." Ibid. (emphasis in
original). Consequently, while the holding of R. A. V. does not permit a State to ban only obscenity based on "offensive political messages," ibid. , or "only those
threats against the President that mention his policy on aid to
inner cities," ibid. , the First Amendment permits content
discrimination "based on the very reasons why the particular class
of speech at issue . . . is proscribable," id. ,
at 393.

															Similarly, Virginia's statute does not run afoul of the First
Amendment insofar as it bans cross burning with intent to
intimidate. Unlike the statute at issue in R. A. V. , the
Virginia statute does not single out for opprobrium only that
speech directed toward "one of the specified disfavored topics." Id. , at 391. It does not matter whether an individual
burns a cross with intent to intimidate because of the victim's
race, gender, or religion, or because of the victim's "political
affiliation, union membership, or homosexuality." Ibid. Moreover, as a factual matter it is not true that cross burners
direct their intimidating conduct solely to racial or religious
minorities. See, e. g., supra , at 355 (noting the
instances of cross burnings directed at union members); State
v. Miller , 6 Kan. App. 2d 432,629 P. 2d 748 (1981)
(describing [363] the case of a defendant who burned a cross in the yard of the
lawyer who had previously represented him and who was currently
prosecuting him). Indeed, in the case of Elliott and O'Mara, it is
at least unclear whether the respondents burned a cross due to
racial animus. See 262 Va., at 791, 553 S. E. 2d, at 753 (Hassell,
J., dissenting) (noting that "these defendants burned a cross
because they were angry that their neighbor had complained about
the presence of a firearm shooting range in the Elliott's yard, not
because of any racial animus").

															The First Amendment permits Virginia to outlaw cross burnings
done with the intent to intimidate because burning a cross is a
particularly virulent form of intimidation. Instead of prohibiting
all intimidating messages, Virginia may choose to regulate this
subset of intimidating messages in light of cross burning's long
and pernicious history as a signal of impending violence. Thus,
just as a State may regulate only that obscenity which is the most
obscene due to its prurient content, so too may a State choose to
prohibit only those forms of intimidation that are most likely to
inspire fear of bodily harm. A ban on cross burning carried out
with the intent to intimidate is fully consistent with our holding
in R. A. V. and is proscribable under the First
Amendment.

															IV

															The Supreme Court of Virginia ruled in the alternative that
Virginia's cross-burning statute was unconstitutionally overbroad
due to its provision stating that "[a]ny such burning of a cross
shall be prima facie evidence of an intent to intimidate a person
or group of persons." Va. Code Ann. § 18.2-423 (1996). The
Commonwealth added the prima facie provision to the statute in
1968. The court below did not reach whether this provision is
severable from the rest of the cross-burning statute under Virginia
law. See § 1-17.1 ("The provisions of all statutes are severable
unless . . . it is [364] Opinion of O'CONNOR, J.

															apparent that two or more statutes or provisions must operate in
accord with one another"). In this Court, as in the Supreme Court
of Virginia, respondents do not argue that the prima facie evidence
provision is unconstitutional as applied to anyone of them. Rather,
they contend that the provision is unconstitutional on its
face.

															The Supreme Court of Virginia has not ruled on the meaning of
the prima facie evidence provision. It has, however, stated that
"the act of burning a cross alone, with no evidence of intent to
intimidate, will nonetheless suffice for arrest and prosecution and
will insulate the Commonwealth from a motion to strike the evidence
at the end of its case-inchief." 262 Va., at 778, 553 S. E. 2d, at
746. The jury in the case of Richard Elliott did not receive any
instruction on the prima facie evidence provision, and the
provision was not an issue in the case of Jonathan O'Mara because
he pleaded guilty. The court in Barry Black's case, however,
instructed the jury that the provision means: "The burning of a
cross, by itself, is sufficient evidence from which you may infer
the required intent." App. 196. This jury instruction is the same
as the Model Jury Instruction in the Commonwealth of Virginia. See
Virginia Model Jury Instructions, Criminal, Instruction No. 10.250
(1998 and Supp. 2001).

															The prima facie evidence provision, as interpreted by the jury
instruction, renders the statute unconstitutional. Because this
jury instruction is the Model Jury Instruction, and because the
Supreme Court of Virginia had the opportunity to expressly disavow
the jury instruction, the jury instruction's construction of the
prima facie provision "is a ruling on a question of state law that
is as binding on us as though the precise words had been written
into" the statute. E. g., Terminiello v. Chicago , 337 U. S. 1 , 4
(1949) (striking down an ambiguous statute on facial grounds based
upon the instruction given to the jury); see also New York v.
Ferber , 458 U.
S. 747 , 768, n. 21 (1982) (noting that Terminiello involved a facial challenge to the statute); Secretary of
State [365] of Md. v. Joseph H. Munson Co. , 467 U. S. 947 , 965, n. 13
(1984); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L.
Rev. 844, 845-846, n. 8 (1970); Monaghan, Overbreadth, 1981 S. Ct.
Rev. 1, 10-12; Blakey & Murray, Threats, Free Speech, and the
Jurisprudence of the Federal Criminal Law, 2002 B. Y. U. L. Rev.
829, 883, n. 133. As construed by the jury instruction, the prima
facie provision strips away the very reason why a State may ban
cross burning with the intent to intimidate. The prima facie
evidence provision permits a jury to convict in every cross-burning
case in which defendants exercise their constitutional right not to
put on a defense. And even where a defendant like Black presents a
defense, the prima facie evidence provision makes it more likely
that the jury will find an intent to intimidate regardless of the
particular facts of the case. The provision permits the
Commonwealth to arrest, prosecute, and convict a person based
solely on the fact of cross burning itself.

															It is apparent that the provision as so interpreted "'would
create an unacceptable risk of the suppression of ideas.''' Secretary of State of Md. v. Joseph H. Munson Co., supra ,
at 965, n. 13 (quoting Members of City Council of Los Angeles
v. Taxpayers for Vincent , 466 U. S. 789 , 797
(1984)). The act of burning a cross may mean that a person is
engaging in constitutionally proscribable intimidation. But that
same act may mean only that the person is engaged in core political
speech. The prima facie evidence provision in this statute blurs
the line between these two meanings of a burning cross. As
interpreted by the jury instruction, the provision chills
constitutionally protected political speech because of the
possibility that the Commonwealth will prosecute-and potentially
convict-somebody engaging only in lawful political speech at the
core of what the First Amendment is designed to protect.

															As the history of cross burning indicates, a burning cross is
not always intended to intimidate. Rather, sometimes the cross
burning is a statement of ideology, a symbol of group [366] Opinion of O'CONNOR, J.

															solidarity. It is a ritual used at Klan gatherings, and it is
used to represent the Klan itself. Thus, "[b]urning a cross at a
political rally would almost certainly be protected expression." R. A. V. v. St. Paul , 505 U. S., at 402, n. 4 (White, J.,
concurring in judgment) (citing Brandenburg v. Ohio, 395 U. S., at 445). Cf. National Socialist Party of America v.
Skokie , 432 U. S.
43 (1977) (per curiam). Indeed, occasionally a person
who burns a cross does not intend to express either a statement of
ideology or intimidation. Cross burnings have appeared in movies
such as Mississippi Burning, and in plays such as the stage
adaptation of Sir Walter Scott's The Lady of the Lake.

															The prima facie provision makes no effort to distinguish among
these different types of cross burnings. It does not distinguish
between a cross burning done with the purpose of creating anger or
resentment and a cross burning done with the purpose of threatening
or intimidating a victim. It does not distinguish between a cross
burning at a public rally or a cross burning on a neighbor's lawn.
It does not treat the cross burning directed at an individual
differently from the cross burning directed at a group of
like-minded believers. It allows a jury to treat a cross burning on
the property of another with the owner's acquiescence in the same
manner as a cross burning on the property of another without the
owner's permission. To this extent I agree with JUSTICE SOUTER that
the prima facie evidence provision can "skew jury deliberations
toward conviction in cases where the evidence of intent to
intimidate is relatively weak and arguably consistent with a solely
ideological reason for burning." Post , at 385 (opinion
concurring in judgment in part and dissenting in part).

															It may be true that a cross burning, even at a political rally,
arouses a sense of anger or hatred among the vast majority of
citizens who see a burning cross. But this sense of anger or hatred
is not sufficient to ban all cross burnings. As Gerald Gunther has
stated, "The lesson I have drawn [367] from my childhood in Nazi Germany and my happier adult life in
this country is the need to walk the sometimes difficult path of
denouncing the bigot's hateful ideas with all my power, yet at the
same time challenging any community's attempt to suppress hateful
ideas by force of law." Casper, Gerry, 55 Stan. L. Rev. 647, 649
(2002) (internal quotation marks omitted). The prima facie evidence
provision in this case ignores all of the contextual factors that
are necessary to decide whether a particular cross burning is
intended to intimidate. The First Amendment does not permit such a
shortcut.

															For these reasons, the prima facie evidence provision, as
interpreted through the jury instruction and as applied in Barry
Black's case, is unconstitutional on its face. We recognize that
the Supreme Court of Virginia has not authoritatively interpreted
the meaning of the prima facie evidence provision. Unlike JUSTICE
SCALIA, we refuse to speculate on whether any interpretation of the prima facie evidence provision would satisfy
the First Amendment. Rather, all we hold is that because of the
interpretation of the prima facie evidence provision given by the
jury instruction, the provision makes the statute facially invalid
at this point. We also recognize the theoretical possibility that
the court, on remand, could interpret the provision in a manner
different from that so far set forth in order to avoid the
constitutional objections we have described. We leave open that
possibility. We also leave open the possibility that the provision
is severable, and if so, whether Elliott and O'Mara could be
retried under § 18.2-423.

															V

															With respect to Barry Black, we agree with the Supreme Court of
Virginia that his conviction cannot stand, and we affirm the
judgment of the Supreme Court of Virginia. With respect to Elliott
and O'Mara, we vacate the judgment [368] Opinion of SCALIA, J.

															of the Supreme Court of Virginia, and remand the case for
further proceedings.

															It is so ordered.

															JUSTICE STEVENS, concurring.

															Cross burning with "an intent to intimidate," Va. Code Ann. §
18.2-423 (1996), unquestionably qualifies as the kind of threat
that is unprotected by the First Amendment. For the reasons stated
in the separate opinions that Justice White and I wrote in R.
A. V. v. St. Paul , 505 U. S. 377 (1992),
that simple proposition provides a sufficient basis for upholding
the basic prohibition in the Virginia statute even though it does
not cover other types of threatening expressive conduct. With this
observation, I join JUSTICE O'CONNOR'S opinion.

															JUSTICE SCALIA, with whom JUSTICE THOMAS joins as to Parts I and
II, concurring in part, concurring in the judgment in part, and
dissenting in part.

															I agree with the Court that, under our decision in R. A. V.
v. St. Paul , 505
U. S. 377 (1992), a State may, without infringing the First
Amendment, prohibit cross burning carried out with the intent to
intimidate. Accordingly, I join Parts I-III of the Court's opinion.
I also agree that we should vacate and remand the judgment of the
Virginia Supreme Court so that that court can have an opportunity
authoritatively to construe the prima-facie-evidence provision of
Va. Code Ann. § 18.2-423 (1996). I write separately, however, to
describe what I believe to be the correct interpretation of §
18.2-423, and to explain why I believe there is no justification
for the plurality's apparent decision to invalidate that provision
on its face.

															I

															Section 18.2-423 provides that the burning of a cross in public
view "shall be prima facie evidence of an intent to intimidate." In
order to determine whether this component [369] of the statute violates the Constitution, it is necessary,
first, to establish precisely what the presentation of prima facie
evidence accomplishes.

															Typically, "prima facie evidence" is defined as: "Such evidence as, in the judgment of the law, is sufficient to
establish a given fact . . . and which if not rebutted or
contradicted, will remain sufficient. [Such evidence], if
unexplained or uncontradicted, is sufficient to sustain a judgment
in favor of the issue which it supports, but [it] may be
contradicted by other evidence." Black's Law Dictionary 1190 (6th
ed. 1990). The Virginia Supreme Court has, in prior cases, embraced this
canonical understanding of the pivotal statutory language. e.g. , Babbitt v. Miller , 192 Va. 372, 379-380, 64
S. E. 2d 718, 722 (1951) ("Prima facie evidence is
evidence which on its first appearance is sufficient to raise a
presumption of fact or establish the fact in question unless
rebutted"). For example, in Nance v. Commonwealth , 203 Va.
428, 124 S. E. 2d 900 (1962), the Virginia Supreme Court
interpreted a law of the Commonwealth that (1) prohibited the
possession of certain "burglarious" tools "with intent to commit
burglary, robbery, or larceny . . . ," and (2) provided
that "[t]he possession of such burglarious tools . . .
shall be prima facie evidence of an intent to commit burglary,
robbery or larceny." Va. Code Ann. § 18.1-87 (1960). The court
explained that the prima-facie-evidence provision "cuts off no
defense nor interposes any obstacle to a contest of the facts, and
'relieves neither the court nor the jury of the duty to determine
all of the questions of fact from the weight of the whole
evidence.'" Nance v. Commonwealth , 203 Va., at 432, 124 S.
E. 2d, at 903-904; see also ibid. , 124 S. E. 2d, at 904
(noting that the prima-facie-evidence provision" 'is merely a rule
of evidence and not the determination of a fact
. . .'").

															The established meaning in Virginia, then, of the term "prima
facie evidence" appears to be perfectly orthodox: It [370] is evidence that suffices, on its own, to establish a particular
fact. But it is hornbook law that this is true only to the extent
that the evidence goes unrebutted. "Prima facie evidence of a fact
is such evidence as, in judgment of law, is sufficient to establish
the fact; and, if not rebutted, remains sufficient for the
purpose." 7B Michie's Jurisprudence of Virginia and West Virginia §
32 (1998) (emphasis added).

															To be sure, Virginia is entirely free, if it wishes, to discard
the canonical understanding of the term "prima facie evidence." Its
courts are also permitted to interpret the phrase in different ways
for purposes of different statutes. In this case, however, the
Virginia Supreme Court has done nothing of the sort. To the extent
that tribunal has spoken to the question of what "prima facie
evidence" means for purposes of § 18.2-423, it has not deviated a
whit from its prior practice and from the ordinary legal meaning of
these words. Rather, its opinion explained that under § 18.2-423,
"the act of burning a cross alone, with no evidence of intent to
intimidate, will . . . suffice for arrest and prosecution
and will insulate the Commonwealth from a motion to strike the
evidence at the end of its case-in-chief." 262 Va. 764, 778, 553 S.
E. 2d 738,746 (2001). Put otherwise, where the Commonwealth has
demonstrated through its case in chief that the defendant burned a
cross in public view, this is sufficient, at least until the
defendant has come forward with rebuttal evidence, to create a jury
issue with respect to the intent element of the offense.

															It is important to note that the Virginia Supreme Court did not
suggest (as did the trial court's jury instructions in respondent
Black's case, see infra , at 377) that a jury may, in light
of the prima-facie-evidence provision, ignore any rebuttal evidence
that has been presented and, solely on the basis of a showing that
the defendant burned a cross, find that he intended to intimidate.
Nor, crucially, did that court say that the presentation of prima
facie evidence is always sufficient to get a case to a jury, i. e. , that a court may never [371] direct a verdict for a defendant who has been shown to have
burned a cross in public view, even if, by the end of trial, the
defendant has presented rebuttal evidence. Instead, according to
the Virginia Supreme Court, the effect of the prima-facie-evidence
provision is far more limited. It suffices to "insulate the
Commonwealth from a motion to strike the evidence at the end of
its case-in-chief," but it does nothing more. 262 Va., at 778,
553 S. E. 2d, at 746 (emphasis added). That is, presentation of
evidence that a defendant burned a cross in public view is
automatically sufficient, on its own, to support an inference that
the defendant intended to intimidate only until the
defendant comes forward with some evidence in rebuttal.

															II

															The question presented, then, is whether, given this
understanding of the term "prima facie evidence," the crossburning
statute is constitutional. The Virginia Supreme Court answered that
question in the negative. It stated that "§ 18.2-423 sweeps within
its ambit for arrest and prosecution, both protected and
unprotected speech." Ibid. "The enhanced probability of
prosecution under the statute chills the expression of protected
speech sufficiently to render the statute overbroad." Id. ,
at 777, 553 S. E. 2d, at 746.

															This approach toward overbreadth analysis is unprecedented. We
have never held that the mere threat that individuals who engage in
protected conduct will be subject to arrest and prosecution
suffices to render a statute overbroad. Rather, our overbreadth
jurisprudence has consistently focused on whether the
prohibitory terms of a particular statute extend to protected
conduct; that is, we have inquired whether individuals who engage
in protected conduct can be convicted under a statute, not
whether they might be subject to arrest and prosecution. E. g.,
Houston v. Hill , 482 U. S. 451 , 459 (1987)
(a statute "that makers] unlawful a substantial amount of
constitutionally protected conduct may be held facially invalid"
(emphasis added)); Grayned v. City of Rock- [372] ford , 408
U. S. 104 , 114 (1972) (a statute may be overbroad "if in its
reach it prohibits constitutionally protected conduct"
(emphasis added)); R. A. V. v. St. Paul , 505 U. S., at 397
(White, J., concurring in judgment) (deeming the ordinance at issue
"fatally overbroad because it criminalizes . . . expression protected by the First Amendment" (emphasis added)).

															Unwilling to embrace the Virginia Supreme Court's novel mode of
overbreadth analysis, today's opinion properly focuses on the
question of who may be convicted, rather than who may be arrested
and prosecuted, under § 18.2-423. Thus, it notes that "[t]he prima
facie evidence provision permits a jury to convict in
every cross-burning case in which defendants exercise their
constitutional right not to put on a defense."[ Footnote 1 ] Ante , at 365 (emphasis added). In
such cases, the plurality explains, "[t]he provision permits the
Commonwealth to arrest, prosecute, and convict a person
based solely on the fact of cross burning itself." Ibid. (emphasis added). And this, according to the plurality, is
constitutionally problematic because "a burning cross is not always
intended to intimidate," and nonintimidating cross burning cannot
be prohibited. Ibid. In particular, the opinion notes that
cross burning may serve as "a statement of ideology" or "a symbol
of group solidarity" at Ku Klux Klan rituals, and may even serve
artistic purposes as in the case of the film Mississippi Burning. Ante , at 365-366.

															The plurality is correct in all of this--and it means that some
individuals who engage in protected speech may, be- [373] cause of the prima-facie-evidence provision, be subject to
conviction. Such convictions, assuming they are unconstitutional,
could be challenged on a case-by-case basis. The plurality,
however, with little in the way of explanation, leaps to the
conclusion that the possibility of such convictions
justifies facial invalidation of the statute.

															In deeming § 18.2-423 facially invalid, the plurality presumably
means to rely on some species of overbreadth doctrine.[ Footnote 2 ] But it must be a rare species indeed. We
have noted that "[i]n a facial challenge to the overbreadth and
vagueness of a law, a court's first task is to determine whether
the enactment reaches a substantial amount of constitutionally
protected conduct." Hoffman Estates v. Flipside, Hoffman
Estates, Inc. , 455 U. S. 489 , 494
(1982). If one looks only to the core provision of §
18.2-423--"[i]t 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 . . . "--it appears not to capture any protected conduct; that language is
limited in its reach to con- [374] duct which a State is, under the Court's holding, ante ,
at 363, allowed to prohibit. In order to identify any protected conduct that is affected by Virginia's cross-burning law,
the plurality is compelled to focus not on the statute's core
prohibition, but on the prima-facie-evidence provision, and hence
on the process through which the prohibited conduct may be
found by a jury.[ Footnote 3 ] And even in that
context, the plurality cannot claim that improper convictions will
result from the operation of the prima-facie-evidence provision alone. As the plurality concedes, the only persons who
might impermissibly be convicted by reason of that provision are
those who adopt a particular trial strategy, to wit, abstaining
from the presentation of a defense.

															The plurality is thus left with a strikingly attenuated argument
to support the claim that Virginia's cross-burning statute is
facially invalid. The class of persons that the plurality
contemplates could impermissibly be convicted under § 18.2-423
includes only those individuals who (1) burn a cross in public
view, (2) do not intend to intimidate, (3) are nonetheless charged
and prosecuted, and (4) refuse to present a defense. Ante ,
at 365 ("The prima facie evidence provision permits a jury to
convict in every cross-burning case in which defendants exercise
their constitutional right not to put on a defense").

															Conceding (quite generously, in my view) that this class of
persons exists, it cannot possibly give rise to a viable facial
challenge, not even with the aid of our First Amendment [375] overbreadth doctrine. For this Court has emphasized repeatedly
that "where a statute regulates expressive conduct, the scope of
the statute does not render it unconstitutional unless its
overbreadth is not only real, but substantial as well,
judged in relation to the statute's plainly legitimate sweep." Osborne v. Ohio , 495 U. S. 103 , 112 (1990)
(internal quotation marks omitted; emphasis added). See also Houston v. Hill , 482 U. S., at 458 ("Only a statute that
is substantially overbroad may be invalidated on its face"); Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789, 800 (1984) ("[T]he mere fact that one
can conceive of some impermissible applications of a statute is not
sufficient to render it susceptible to an overbreadth challenge"); New York v. Ferber , 458 U. S. 747 , 771 (1982)
("[A] law should not be invalidated for overbreadth unless it
reaches a substantial number of impermissible applications
. . . "). The notion that the set of cases identified by
the plurality in which convictions might improperly be obtained is
sufficiently large to render the statute substantially overbroad is fanciful. The potential improper convictions of which
the plurality complains are more appropriately classified as the
sort of "marginal applications" of a statute in light of which
"facial invalidation is inappropriate." Parker v. Levy , 417 U. S. 733 ,
760 (1974).[ Footnote 4 ] [376] Perhaps more alarming, the plurality concedes, ante , at
364, 365, that its understanding of the prima-facie-evidence
provision is premised on the jury instructions given in respondent
Black's case. This would all be well and good were it not for the
fact that the plurality facially invalidates § 18.2-423. Ante , at 367 ("[T]he prima facie evidence provision, as
interpreted through the jury instruction and as applied in Barry
Black's case, is unconstitutional on its face"). I am aware of no
case--and the plurality cites none--in which we have facially
invalidated an ambiguous statute on the basis of a
constitutionally troubling jury instruction.[ Footnote 5 ] And it is alto- [377] gether unsurprising that there is no precedent for such a
holding. For where state law is ambiguous, treating jury
instructions as binding interpretations would cede an enormous
measure of power over state law to trial judges. A single judge's
idiosyncratic reading of a state statute could trigger its
invalidation. In this case, the troubling instruction--"The burning
of a cross, by itself, is sufficient evidence from which you may
infer the required intent," App. 196--was taken verbatim from
Virginia's Model Jury Instructions. But these Model Instructions
have been neither promulgated by the legislature nor formally
adopted by the Virginia Supreme Court. And it is hornbook law, in
Virginia as elsewhere, that "[p]roffered instructions which do not
correctly state the law . . . are erroneous and should be
refused." lOA Michie's Jurisprudence of Virginia and West Virginia,
Instructions § 15, p. 35 (Supp. 2000).

															The plurality's willingness to treat this jury instruction as
binding (and to strike down § 18.2-423 on that basis) would be
shocking enough had the Virginia Supreme Court offered no guidance
as to the proper construction of the prima-facieevidence provision.
For ordinarily we would decline to pass upon the constitutionality
of an ambiguous state statute until that State's highest court had
provided a binding construc- [378] tion. E. g., Arizonans for Official English v. Arizona,
520 U. S. 43, 78 (1997). If there is any exception to that
rule, it is the case where one of two possible interpretations of
the state statute would clearly render it unconstitutional, and the
other would not. In that situation, applying the maxim "ut res
magis valeat quam pereat" we would do precisely the
opposite of what the plurality does here-that is, we would
adopt the alternative reading that renders the statute
constitutional rather than unconstitutional. The plurality's
analysis is all the more remarkable given the dissonance between
the interpretation of § 18.2-423 implicit in the jury instruction
and the one suggested by the Virginia Supreme Court. That court's
opinion did not state that, once proof of public cross burning is
presented, a jury is permitted to infer an intent to intimidate solely on this basis and regardless of whether a defendant
has offered evidence to rebut any such inference. To the contrary,
in keeping with the black-letter understanding of "prima facie
evidence," the Virginia Supreme Court explained that such evidence
suffices only to "insulate the Commonwealth from a motion to strike
the evidence at the end of its case-in-chief." 262 Va., at 778, 553
S. E. 2d, at 746. The court did not so much as hint that a jury is
permitted, under § 18.2-423, to ignore rebuttal evidence and infer
an intent to intimidate strictly on the basis of the prosecution's
prima facie case. And unless and until the Supreme Court of
Virginia tells us that the prima-facieevidence provision permits a
jury to infer intent under such conditions, this Court is entirely
unjustified in facially invalidating § 18.2-423 on this basis.

															As its concluding performance, in an apparent effort to paper
over its unprecedented decision facially to invalidate a statute in
light of an errant jury instruction, the plurality states: "We recognize that the Supreme Court of Virginia has not
authoritatively interpreted the meaning of the prima facie evidence
provision . . . . We also recognize the [379] theoretical possibility that the court, on remand, could
interpret the provision in a manner different from that so far set
forth in order to avoid the constitutional objections we have
described. We leave open that possibility." Ante , at
367. Now this is truly baffling. Having declared, in the immediately
preceding sentence, that § 18.2-423 is "unconstitutional on its
face," ibid. (emphasis added), the plurality holds out the
possibility that the Virginia Supreme Court will offer some saving
construction of the statute. It should go without saying that if a
saving construction of § 18.2-423 is possible, then facial
invalidation is inappropriate. E. g., Harrison v. NAACp , 360 U. S. 167 ,
176 (1959) ("[N]o principle has found more consistent or clear
expression than that the federal courts should not adjudicate the
constitutionality of state enactments fairly open to interpretation
until the state courts have been afforded a reasonable opportunity
to pass upon them"). So, what appears to have happened is that the
plurality has facially invalidated not § 18.2-423, but its own
hypothetical interpretation of § 18.2-423, and has then remanded to
the Virginia Supreme Court to learn the actual interpretation of § 18.2-423. Words cannot express my wonderment at
this virtuoso performance.

															III

															As the analysis in Part I, supra , demonstrates, I
believe the prima-facie-evidence provision in Virginia's
crossburning statute is constitutionally unproblematic.
Nevertheless, because the Virginia Supreme Court has not yet
offered an authoritative construction of § 18.2-423, I concur in
the Court's decision to vacate and remand the judgment with respect
to respondents Elliott and O'Mara. I also agree that respondent
Black's conviction cannot stand. As noted above, the jury in
Black's case was instructed that "[t]he burning of a cross, by
itself , is sufficient evidence from which you may infer the
required intent." App. 196 (emphasis [380] added). Where this instruction has been given, it is impossible
to determine whether the jury has rendered its verdict (as it must)
in light of the entire body of facts before it-- including evidence that might rebut the presumption that the cross burning
was done with an intent to intimidate--or, instead, has chosen to
ignore such rebuttal evidence and focused exclusively on the fact
that the defendant burned a cross.[ Footnote 6 ]
Still, I cannot go along with the Court's decision to affirm the
judgment with respect to Black. In that judgment, the Virginia
Supreme Court, having erroneously concluded that § 18.2-423 is
overbroad, not only vacated Black's conviction, but dismissed the
indictment against him as well. 262 Va., at 779, 553 S. E. 2d, at
746. Because I believe the constitutional defect in Black's
conviction is rooted in a jury instruction and not in the statute
itself, I would not dismiss the indictment and would permit the
Commonwealth to retry Black if it wishes to do so. It is an
interesting question whether the plurality's willingness to let the
Virginia Supreme Court resolve the plurality's make-believe facial
invalidation of the statute extends as well to the facial
invalidation insofar as it supports dismissal of the indictment
against Black. Logically, there is no reason why it would not.

															JUSTICE SOUTER, with whom JUSTICE KENNEDY and JusTICE GINSBURG
join, concurring in the judgment in part and dissenting in
part.

															I agree with the majority that the Virginia statute makes a
content-based distinction within the category of punishable
intimidating or threatening expression, the very type of dis- [381] tinction we considered in R. A. V. v. St. Paul , 505 U. S. 377 (1992). I disagree that any exception should save Virginia's law
from unconstitutionality under the holding in R. A. V. or
any acceptable variation of it.

															I

															The ordinance struck down in R. A. V. , as it had been
construed by the State's highest court, prohibited the use of
symbols (including but not limited to a burning cross) as the
equivalent of generally proscribable fighting words, but the
ordinance applied only when the symbol was provocative " 'on the
basis of race, color, creed, religion or gender.''' Id. ,
at 380 (quoting St. Paul, Minn., Legis. Code § 292.02 (1990)).
Although the Virginia statute in issue here contains no such
express "basis of" limitation on prohibited subject matter, the
specific prohibition of cross burning with intent to intimidate
selects a symbol with particular content from the field of all
proscribable expression meant to intimidate. To be sure, that
content often includes an essentially intimidating message, that
the cross burner will harm the victim, most probably in a physical
way, given the historical identification of burning crosses with
arson, beating, and lynching. But even when the symbolic act is
meant to terrify, a burning cross may carry a further, ideological
message of white Protestant supremacy. The ideological message not
only accompanies many threatening uses of the symbol, but is also
expressed when a burning cross is not used to threaten but merely
to symbolize the supremacist ideology and the solidarity of those
who espouse it. As the majority points out, the burning cross can
broadcast threat and ideology together, ideology alone, or threat
alone, as was apparently the choice of respondents Elliott and
O'Mara. Ante , at 354357,363.

															The issue is whether the statutory prohibition restricted to
this symbol falls within one of the exceptions to R. A.
V. 's general condemnation of limited content-based
proscription [382] within a broader category of expression proscribable generally.
Because of the burning cross's extraordinary force as a method of
intimidation, the R. A. V. exception most likely to cover
the statute is the first of the three mentioned there, which the R. A. V. opinion called an exception for content
discrimination on a basis that "consists entirely of the very
reason the entire class of speech at issue is proscribable." 505 U.
S., at 388. This is the exception the majority speaks of here as
covering statutes prohibiting "particularly virulent" proscribable
expression. Ante , at 363.

															I do not think that the Virginia statute qualifies for this
virulence exception as R. A. V. explained it. The statute
fits poorly with the illustrative examples given in R. A.
V. , none of which involves communication generally associated
with a particular message, and in fact, the majority's discussion
of a special virulence exception here moves that exception toward a
more flexible conception than the version in R. A. V. I
will reserve judgment on that doctrinal development, for even on a
pragmatic conception of R. A. V. and its exceptions the
Virginia statute could not pass muster, the most obvious hurdle
being the statute's prima facie evidence provision. That provision
is essential to understanding why the statute's tendency to
suppress a message disqualifies it from any rescue by exception
from R. A. V. 's general rule.

															II R. A. V. defines the special virulence exception to the
rule barring content-based subclasses of categorically pros
cribable expression this way: prohibition by subcategory is
nonetheless constitutional if it is made "entirely" on the "basis"
of "the very reason" that "the entire class of speech at issue is
proscribable" at all. 505 U. S., at 388. The Court explained that
when the subcategory is confined to the most obviously proscribable
instances, "no significant danger of idea or viewpoint
discrimination exists," ibid. , and the expla- [383] nation was rounded out with some illustrative examples. None of
them, however, resembles the case before us.[ Footnote 1 ]

															The first example of permissible distinction is for a
prohibition of obscenity unusually offensive "in its prurience," ibid. (emphasis deleted), with citation to a case in which
the Seventh Circuit discussed the difference between obscene
depictions of actual people and simulations. As that court noted,
distinguishing obscene publications on this basis does not suggest
discrimination on the basis of the message conveyed. Kucharek
v. Hanaway , 902 F.2d
513 , 517-518 (1990). The opposite is true, however, when a
general prohibition of intimidation is rejected in favor of a
distinct proscription of intimidation by cross burning. The cross
may have been selected because of its special power to threaten,
but it may also have been singled out because of disapproval of its
message of white supremacy, either because a legislature thought
white supremacy was a pernicious doctrine or because it found that
dramatic, public espousal of it was a civic embarrassment. Thus,
there is no kinship between the cross-burning statute and the core
prurience example.

															Nor does this case present any analogy to the statute
prohibiting threats against the President, the second of R. A.
V. 's examples of the virulence exception and the one the
majority relies upon. Ante , at 362. The content
discrimination in that statute relates to the addressee of the
threat and reflects the special risks and costs associated with
threatening the President. Again, however, threats against the
President are not generally identified by reference to the content
of any message that may accompany the threat, let alone any
viewpoint, and there is no obvious correlation in fact between
victim and message. Millions of statements are made about the
President every day on every subject [384] and from every standpoint; threats of violence are not an
integral feature of anyone subject or viewpoint as distinct from
others. Differential treatment of threats against the President,
then, selects nothing but special risks, not special messages. A
content-based proscription of cross burning, on the other hand, may
be a subtle effort to ban not only the intensity of the
intimidation cross burning causes when done to threaten, but also
the particular message of white supremacy that is broadcast even by
nonthreatening cross burning.

															I thus read R. A. V. 's examples of the particular
virulence exception as covering prohibitions that are not clearly
associated with a particular viewpoint, and that are consequently
different from the Virginia statute. On that understanding of
things, I necessarily read the majority opinion as treating R.
A. V. 's virulence exception in a more flexible, pragmatic
manner than the original illustrations would suggest. Ante , at 363. Actually, another way of looking at today's
decision would see it as a slight modification of R. A.
V. 's third exception, which allows content-based
discrimination within a proscribable category when its "nature" is
such "that there is no realistic possibility that official
suppression of ideas is afoot." R. A. V. , supra ,
at 390. The majority's approach could be taken as recognizing an
exception to R. A. V. when circumstances show that the
statute's ostensibly valid reason for punishing particularly
serious proscribable expression probably is not a ruse for message
suppression, even though the statute may have a greater (but not
exclusive) impact on adherents of one ideology than on others, ante , at 362-363.

															III

															My concern here, in any event, is not with the merit of a
pragmatic doctrinal move. For whether or not the Court should
conceive of exceptions to R. A. V. 's general rule in a
more practical way, no content-based statute should survive even
under a pragmatic recasting of R. A. V. without a high
probability that no "official suppression of ideas is afoot," [385] 505 U. S., at 390. I believe the prima facie evidence provision
stands in the way of any finding of such a high probability
here.

															Virginia's statute provides that burning a cross on the property
of another, a highway, or other public place is "prima facie
evidence of an intent to intimidate a person or group of persons."
Va. Code Ann. § 18.2-423 (1996). While that language was added by
amendment to the earlier portion of the statute criminalizing cross
burning with intent to intimidate, ante , at 363 (plurality
opinion), it was a part of the prohibitory statute at the time
these respondents burned crosses, and the whole statute at the time
of respondents' conduct is what counts for purposes of the First
Amendment.

															As I see the likely significance of the evidence provision, its
primary effect is to skew jury deliberations toward conviction in
cases where the evidence of intent to intimidate is relatively weak
and arguably consistent with a solely ideological reason for
burning. To understand how the provision may work, recall that the
symbolic act of burning a cross, without more, is consistent with
both intent to intimidate and intent to make an ideological
statement free of any aim to threaten. Ante , at 354-357.
One can tell the intimidating instance from the wholly ideological
one only by reference to some further circumstance. In the real
world, of course, and in real-world prosecutions, there will always
be further circumstances, and the factfinder will always learn
something more than the isolated fact of cross burning. Sometimes
those circumstances will show an intent to intimidate, but
sometimes they will be at least equivocal, as in cases where a
white supremacist group burns a cross at an initiation ceremony or
political rally visible to the public. In such a case, if the
factfinder is aware of the prima facie evidence provision, as the
jury was in respondent Black's case, ante , at 349-350, the
provision will have the practical effect of tilting the jury's
thinking in favor of the prosecution. What is significant is not
that the provision [386] permits a factfinder's conclusion that the defendant acted with
proscribable and punishable intent without any further indication,
because some such indication will almost always be presented. What
is significant is that the provision will encourage a factfinder to
err on the side of a finding of intent to intimidate when the
evidence of circumstances fails to point with any clarity either to
the criminal intent or to the permissible one. The effect of such a
distortion is difficult to remedy, since any guilty verdict will
survive sufficiency review unless the defendant can show that,
"viewing the evidence in the light most favorable to the
prosecution, [no] rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U. S. 307 , 319
(1979). The provision will thus tend to draw nonthreatening
ideological expression within the ambit of the prohibition of
intimidating expression, as JUSTICE O'CONNOR notes. Ante ,
at 365-366 (plurality opinion).

															To the extent the prima facie evidence provision skews
prosecutions, then, it skews the statute toward suppressing ideas.
Thus, the appropriate way to consider the statute's prima facie
evidence term, in my view, is not as if it were an overbroad
statutory definition amenable to severance or a narrowing
construction. The question here is not the permissible scope of an
arguably overbroad statute, but the claim of a clearly
content-based statute to an exception from the general prohibition
of content-based proscriptions, an exception that is not warranted
if the statute's terms show that suppression of ideas may be afoot.
Accordingly, the way to look at the prima facie evidence provision
is to consider it for any indication of what is afoot. And if we
look at the provision for this purpose, it has a very obvious
significance as a mechanism for bringing within the statute's
prohibition some expression that is doubtfully threatening though
certainly distasteful.

															It is difficult to conceive of an intimidation case that could
be easier to prove than one with cross burning, assum- [387] ing any circumstances suggesting intimidation are present. The
provision, apparently so unnecessary to legitimate prosecution of
intimidation, is therefore quite enough to raise the question
whether Virginia's content-based statute seeks more than mere
protection against a virulent form of intimidation. It consequently
bars any conclusion that an exception to the general rule of R.
A. V. is warranted on the ground "that there is no realistic
[or little realistic] possibility that official suppression of
ideas is afoot," 505 U. S., at 390.[ Footnote 2 ]
Since no R. A. V. exception can save the statute as
content based, it can only survive if narrowly tailored to serve a
compelling state interest, id. , at 395-396, a stringent
test the statute cannot pass; a content-neutral statute banning
intimidation would achieve the same object without singling out
particular content.

															IV

															I conclude that the statute under which all three of the
respondents were prosecuted violates the First Amendment, since the
statute's content-based distinction was invalid at the time of the
charged activities, regardless of whether the prima facie evidence
provision was given any effect in any respondent's individual case.
In my view, severance of the prima facie evidence provision now
could not eliminate the unconstitutionality of the whole statute at
the time of the respondents' conduct. I would therefore affirm the
judgment of the Supreme Court of Virginia vacating the respondents'
convictions and dismissing the indictments. Accordingly, I concur
in the Court's judgment as to respondent Black and dissent as to
respondents Elliott and O'Mara. [388] In every culture, certain things acquire meaning well beyond
what outsiders can comprehend. That goes for both the sacred, see Texas v. Johnson , 491 U. S. 397 , 422-429
(1989) (REHNQUIST, C. J., dissenting) (describing the unique
position of the American flag in our Nation's 200 years of
history), and the profane. I believe that cross burning is the
paradigmatic example of the latter.

															I

															Although I agree with the majority's conclusion that it is
constitutionally permissible to "ban . . . cross burning
carried out with the intent to intimidate," ante , at 363,
I believe that the majority errs in imputing an expressive
component to the activity in question, see ante , at 362
(relying on one of the exceptions to the First Amendment's
prohibition on content-based discrimination outlined in R. A.
V. v. St. Paul , 505 U. S. 377 (1992)). In
my view, whatever expressive value cross burning has, the
legislature simply wrote it out by banning only intimidating
conduct undertaken by a particular means. A conclusion that the
statute prohibiting cross burning with intent to intimidate sweeps
beyond a prohibition on certain conduct into the zone of expression
overlooks not only the words of the statute but also reality.

															A

															"In holding [the ban on cross burning with intent to intimidate]
unconstitutional, the Court ignores Justice Holmes' familiar
aphorism that 'a page of history is worth a volume of logic.'" Texas v. Johnson, supra , at 421 (REHNQUIST, C. J.,
dissenting) (quoting New York Trust Co. v. Eisner , 256 U. S. 345 ,
349 (1921)). "The world's oldest, most persistent terrorist organization is
not European or even Middle Eastern in origin. Fifty years before
the Irish Republican Army was orga- [389] nized, a century before Al Fatah declared its holy war on
Israel, the Ku Klux Klan was actively harassing, torturing, and
murdering in the United States. Today . . . its members
remain fanatically committed to a course of violent opposition to
social progress and racial equality in the United States." M.
Newton & J. Newton, The Ku Klux Klan: An Encyclopedia vii
(1991) (hereinafter Newton & Newton). To me, the majority's brief history of the Ku Klux Klan only
reinforces this common understanding of the Klan as a terrorist
organization, which, in its endeavor to intimidate, or even
eliminate those it dislikes, uses the most brutal of methods.

															Such methods typically include cross burning-"a tool for the
intimidation and harassment of racial minorities, Catholics, Jews,
Communists, and any other groups hated by the Klan." Capitol
Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 770 (1995)
(THOMAS, J., concurring). For those not easily frightened, cross
burning has been followed by more extreme measures, such as
beatings and murder. J. Williams, Eyes on the Prize: America's
Civil Rights Years, 1954-1965, p. 39 (1987). As the Government
points out, the association between acts of intimidating cross
burning and violence is well documented in recent American history.
Brief for United States as Amicus Curiae 3-4, and n.
2.[ Footnote 1 ] [390] Indeed, the connection between cross burning and violence is
well ingrained, and lower courts have so recognized: "After the mother saw the burning cross, she was crying on her
knees in the living room. [She] felt feelings of frustration and
intimidation and feared for her husband's life. She testified what
the burning cross symbolized to her as a black American: 'Nothing
good. Murder, hanging, rape, lynching. Just anything bad [391] that you can name. It is the worst thing that could happen to a
person.' . . . Mr. Heisser told the probation officer
that at the time of the occurrence, if the family did not leave, he
believed someone would return to commit murder
. . . . Seven months after the incident, the
family still lived in fear . . . . This is a
reaction reasonably to be anticipated from this criminal conduct."
United States v. Skillman , 922 F.2d
1370 , 1378 (CA9 1991) (emphasis added). But the perception that a burning cross is a threat and a
precursor of worse things to come is not limited to blacks. Because
the modern Klan expanded the list of its enemies beyond blacks and
"radical[sJ" to include Catholics, Jews, most immigrants, and labor
unions, Newton & Newton ix, a burning cross is now widely
viewed as a signal of impending terror and lawlessness. I
wholeheartedly agree with the observation made by the Commonwealth
of Virginia: "A white, conservative, middle-class Protestant, waking up at
night to find a burning cross outside his home, will reasonably
understand that someone is threatening him. His reaction is likely
to be very different than if he were to find, say, a burning circle
or square. In the latter case, he may call the fire department. In
the former, he will probably call the police." Brief for Petitioner
26. In our culture, cross burning has almost invariably meant
lawlessness and understandably instills in its victims wellgrounded
fear of physical violence.

															B

															Virginia's experience has been no exception. In Virginia, though
facing widespread opposition in the 1920's, the Klan developed
localized strength in the southeastern part of the Commonwealth,
where there were reports of scattered raids and floggings. Newton
& Newton 585. Although the Klan was disbanded at the national
level in 1944, ibid. , a series of [392] cross burnings in Virginia took place between 1949 and 1952. See
262 Va. 764, 771, n. 2, 553 S. E. 2d 738, 742, n. 2 (2001)
(collecting newspaper accounts of cross burnings in Virginia during
that time period); see also Cross Fired Near Suffolk Stirs Probe,
Burning Second in Past Week, Richmond Times-Dispatch, Jan. 23,
1949, section 2, p. 1, App. 313, 314-315 (The second reported cross
burning within a week in 1949 "brought to eight the number which
have occurred in Virginia during the past year. Six of the
incidents have occurred in N ansemond County. Four crosses were
burned near Suffolk last Spring, and about 150 persons took part in
the December 11 cross burning near Whaleyville. No arrests have
been made in connection with any of the incidents").

															Most of the crosses were burned on the lawns of black families,
who either were business owners or lived in predominantly white
neighborhoods. See Police Aid Requested by Teacher, Cross is Burned
in Negro's Yard, Richmond News Leader, Jan. 21, 1949, p. 19, App.
312; Cross Fired Near Suffolk Stirs Probe, Burning Second in Past
Week, supra , at 313; Cross is Burned at Reedville Home,
Richmond News Leader, Apr. 14, 1951, p. 1, App. 321. At least one
of the cross burnings was accompanied by a shooting. Cross Burned
at Manakin, Third in Area, supra n. 1, at 318. The crosses
burned near residences were about five to six feet tall, while a
"huge cross reminiscent of the Ku Klux Klan days" that burned "atop
a hill" as part of the initiation ceremony of the secret
organization of the Knights of Kavaliers was 12 feet tall. Huge
Cross is Burned on Hill Just South of Covington, Richmond
Times-Dispatch, Apr. 14, 1950, p. 6, App. 316. These incidents
were, in the words of the time, "terroristic [sic]" and
"un-American act[s], designed to intimidate Negroes from
seeking their rights as citizens." Cross Fired Near Suffolk Stirs
Probe, Burning Second in Past Week, supra , at 315
(emphasis added). [393] In February 1952, in light of this series of cross burnings and
attendant reports that the Klan, "long considered dead in Virginia,
is being revitalized in Richmond," Governor Battle announced that
"Virginia 'might well consider passing legislation' to restrict the
activities of the Ku Klux Klan." "State Might Well Consider"
Restrictions on Ku Klux Klan, Governor Battle Comments, Richmond
Times-Dispatch, Feb. 6, 1952, p. 7, App. 321. As newspapers
reported at the time, the bill was "to ban the burning of crosses
and other similar evidences of terrorism." Name Rider
Approved by House, Richmond News Leader, Feb. 23,1952, p.1, App.
325 (emphasis added). The bill was presented to the House of
Delegates by a former FBI agent and future two-term Governor,
Delegate Mills E. Godwin, Jr. "Godwin said law and order in the
State were impossible if organized groups could create
fear by intimidation." Bill to Curb KKK Passed By the House,
Action is Taken Without Debate, Richmond TimesDispatch, Mar. 8,
1952, p. 5, App. 325 (emphasis added).

															That in the early 1950's the people of Virginia viewed cross
burning as creating an intolerable atmosphere of terror is not
surprising: Although the cross took on some religious significance
in the 1920's when the Klan became connected with certain southern
white clergy, by the postwar period it had reverted to its original
function "as an instrument of intimidation." W. Wade, The Fiery
Cross: The Ku Klux Klan in America 185, 279 (1987).

															Strengthening Delegate Godwin's explanation, as well as my
conclusion, that the legislature sought to criminalize terrorizing conduct is the fact that at the time the statute was
enacted, racial segregation was not only the prevailing practice,
but also the law in Virginia.[ Footnote 2 ] And,
just two years [394] after the enactment of this statute, Virginia's General Assembly
embarked on a campaign of "massive resistance" in response to Brown v. Board of Education , 347 U. S. 483 (1954). See
generally Griffin v. School Bd. of Prince Edward Cty. , 377 U. S. 218 ,
221 (1964); Harrison v. Day, 200 Va. 439, 448-454, 106 S.
E. 2d 636, 644-648 (1959) (describing massive resistance as
legislatively mandated attempt to close public schools rather than
desegregate).

															It strains credulity to suggest that a state legislature that
adopted a litany of segregationist laws self-contradictorily
intended to squelch the segregationist message. Even for
segregationists, violent and terroristic conduct, the Siamese twin
of cross burning, was intolerable. The ban on cross burning with
intent to intimidate demonstrates that even segregationists
understood the difference between intimidating and terroristic
conduct and racist expression. It is simply beyond belief that, in
passing the statute now under review, the Virginia Legislature was
concerned with anything but penalizing conduct it must have viewed
as particularly vicious.

															Accordingly, this statute prohibits only conduct, not
expression. And, just as one cannot burn down someone's house to
make a political point and then seek refuge in the First Amendment,
those who hate cannot terrorize and intimidate to make their point.
In light of my conclusion that [395] the statute here addresses only conduct, there is no need to
analyze it under any of our First Amendment tests.

															II

															Even assuming that the statute implicates the First Amendment,
in my view, the fact that the statute permits a jury to draw an
inference of intent to intimidate from the cross burning itself
presents no constitutional problems. Therein lies my primary
disagreement with the plurality.

															A

															"The threshold inquiry in ascertaining the constitutional
analysis applicable to [a jury instruction involving a presumption]
is to determine the nature of the presumption it describes." Francis v. Franklin , 471 U. S. 307 , 313-314
(1985) (internal quotation marks omitted). We have categorized the
presumptions as either permissive inferences or mandatory
presumptions. Id. , at 314.

															To the extent we do have a construction of this statute by the
Virginia Supreme Court, we know that both the majority and the
dissent agreed that the presumption was "a statutorily supplied inference," 262 Va., at 778, 553 S. E. 2d, at 746
(emphasis added); id. , at 795, 553 S. E. 2d, at 755
(Hassell, J., dissenting) ("Code § 18.2-423 creates a statutory inference" (emphasis added)). Under Virginia law, the term
"inference" has a well-defined meaning and is distinct from the
term "presumption." Martin v. Phillips , 235 Va. 523, 526,
369 S. E. 2d 397, 399 (1988). "A presumption is a rule of law that compels the fact finder to
draw a certain conclusion or a certain inference from a given set
of facts.[1] The primary significance of a presumption is that it
operates to shift to the opposing party the burden of producing
evidence tending to rebut the presumption.[2] No presumption,
however, can operate to shift the ultimate burden of persuasion
from the party upon whom it was originally cast. [396] "[1] In contrast, an inference, sometimes loosely referred to as
a presumption of fact, does not compel a specific conclusion. An
inference merely applies to the rational potency or probative value
of an evidentiary fact to which the fact finder may attach whatever
force or weight it deems best. 9 J. Wigmore, Evidence in Trials at
Common Law § 2491(1), at 304 (Chad. rev. 1981).

															"[2] An inference, on the other hand, does not invoke this
procedural consequence of shifting the burden of production. Id. " Ibid. (some citations omitted; emphasis added). Both the majority and the dissent below classified the clause in
question as an "inference," and I see no reason to disagree,
particularly in light of the instructions given to the jury in
Black's case, requiring it to find guilt beyond a reasonable doubt
both as to the fact that "the defendant burned or caused to be
burned a cross in a public place," and that "he did so with the
intent to intimidate any person or group of persons," 262 Va., at
796, 553 S. E. 2d, at 756 (Hassell, J., dissenting) (quoting jury
instructions in Black's case).

															Even though under Virginia law the statutory provision at issue
here is characterized as an "inference," the Court must still
inquire whether the label Virginia attaches corresponds to the
categorization our cases have given such clauses. In this respect,
it is crucial to observe that what Virginia law calls an
"inference" is what our cases have termed a "permissive inference
or presumption." County Court of Ulster Cty. v. Allen , 442 U. S. 140 ,
157 (1979).[ Footnote 3 ] Given that this

															3 As the Court explained in Allen , a permissive
inference or presumption "allows-but does not require-the trier of
fact to infer the elemental fact from proof by the prosecutor of
the basic one and which places no burden of any kind on the
defendant. In that situation the basic fact may constitute prima
facie evidence of the elemental fact . . . . Because
this permissive presumption leaves the trier of fact free to credit
or reject the inference and does not shift the burden of proof, it
affects the application of the 'beyond a reasonable doubt' standard
only if, under the facts of the case, there is no rational way the
trier could make the connection permit- [397] Court's definitions of a "permissive inference" and a "mandatory
presumption" track Virginia's definitions of "inference" and
"presumption," the Court should judge the Virginia statute based on
the constitutional analysis applicable to "inferences": they raise
no constitutional flags unless there is "no rational way the trier
could make the connection permitted by the inference." Ibid. As explained in Part I, supra, not making a
connection between cross burning and intimidation would be
irrational.

															But even with respect to statutes containing a mandatory
irrebuttable presumption as to intent, the Court has not shown much
concern. For instance, there is no scienter requirement for
statutory rape. See, e.g. , Tenn. Code Ann. § 39-13-506
(1997); Ore. Rev. Stat. Ann. § 163.365 (1989); Mo. Rev. Stat. §
566.032 (2000); Ga. Code Ann. § 16-6-3 (1996). That is, a person
can be arrested, prosecuted, and convicted for having sex with a
minor, without the government ever producing any evidence, let
alone proving beyond a reasonable doubt, that a minor did not
consent. In fact, "[f]or purposes of the child molesting statute
. . . consent is irrelevant. The legislature has
determined in such cases that children under the age of sixteen
(16) cannot, as a matter of law, consent to have sexual acts
performed upon them, or consent to engage in a sexual act with
someone over the age of sixteen (16)." Warrick v. State ,
538 N. E. 2d 952, 954 (Ind. App. 1989) (citing Ind. Code §
35-42-4-3 (1988)). The legislature finds the behavior so
reprehensible that the intent is satisfied by the mere act
committed by a perpetrator. Considering [398] the horrific effect cross burning has on its victims, it is also
reasonable to presume intent to intimidate from the act itself.

															Statutes prohibiting possession of drugs with intent to
distribute operate much the same way as statutory rape laws. Under
these statutes, the intent to distribute is effectively satisfied
by possession of some threshold amount of drugs. See, e.g. , Del. Code Ann., Tit. 16, §4753A (1987); Mass. Gen.
Laws, ch. 94C , § 32E (West 1997); S. C. Code Ann. §
44-53-370 (West 2000). As with statutory rape, the presumption of
intent in such statutes is irrebuttable-not only can a person be
arrested for the crime of possession with intent to distribute (or
"trafficking") without any evidence of intent beyond quantity of
drugs, but such person cannot even mount a defense to the element
of intent. However, as with statutory rape statutes, our cases do
not reveal any controversy with respect to the presumption of
intent in these drug statutes.

															Because the prima facie clause here is an inference, not an
irrebuttable presumption, there is all the more basis under our due
process precedents to sustain this statute.

															B

															The plurality, however, is troubled by the presumption because
this is a First Amendment case. The plurality laments the fate of
an innocent cross burner who burns a cross, but does so without an
intent to intimidate. The plurality fears the chill on expression
because, according to the plurality, the inference permits "the
Commonwealth to arrest, prosecute, and convict a person based
solely on the fact of cross burning itself." Ante , at 365.
First, it is, at the very least, unclear that the inference comes
into play during arrest and initiation of a prosecution, that is,
prior to the instructions stage of an actual trial. Second, as I
explained above, the inference is rebuttable and, as the jury
instructions given in this case demonstrate, Virginia law still
re- [399] quires the jury to find the existence of each element, including
intent to intimidate, beyond a reasonable doubt.

															Moreover, even in the First Amendment context, the Court has
upheld such regulations where conduct that initially appears
culpable ultimately results in dismissed charges. A regulation of
pornography is one such example. While possession of child
pornography is illegal, New York v. Ferber , 458 U. S. 747 , 764
(1982), possession of adult pornography, as long as it is not
obscene, is allowed, Miller v. California , 413 U. S. 15 (1973). As a
result, those pornographers trafficking in images of adults who
look like minors may be not only deterred but also arrested and
prosecuted for possessing what a jury might find to be legal
materials. This "chilling" effect has not, however, been a cause
for grave concern with respect to overbreadth of such statutes
among the Members of this Court.

															That the First Amendment gives way to other interests is not a
remarkable proposition. What is remarkable is that, under the
plurality's analysis, the determination whether an interest is
sufficiently compelling depends not on the harm a regulation in
question seeks to prevent, but on the area of society at which it
aims. For instance, in Hill v. Colorado , 530 U. S. 703 (2000), the
Court upheld a restriction on protests near abortion clinics,
explaining that the State had a legitimate interest, which was
sufficiently narrowly tailored, in protecting those seeking
services of such establishments from "unwanted advice" and
"unwanted communication," id. , at 708, 716, 717, 729. In
so concluding, the Court placed heavy reliance on the "vulnerable
physical and emotional conditions" of patients. Id. , at
729. Thus, when it came to the rights of those seeking abortions,
the Court deemed restrictions on "unwanted advice," which, notably,
can be given only from a distance of at least eight feet from a
prospective patient, justified by the countervailing interest in
obtaining an abortion. Yet, here, the plurality strikes down the
statute because one day an individual might wish to burn a
cross, [400] but might do so without an intent to intimidate anyone. That
cross burning subjects its targets, and, sometimes, an unintended
audience, see 262 Va., at 782, 553 S. E. 2d, at 748-749 (Hassell,
J., dissenting); see also App. 93-97, to extreme emotional
distress, and is virtually never viewed merely as "unwanted
communication," but rather, as a physical threat, is of no concern
to the plurality. Henceforth, under the plurality's view, physical
safety will be valued less than the right to be free from unwanted
communications.

															III

															Because I would uphold the validity of this statute, I
respectfully dissent. Notes [ Footnote * ]

															Briefs of amici curiae urging reversal were filed for
the State of California by Bill Lockyer , Attorney General, Manuel M. Medeiros , State Solicitor General, Richard
M. Frank , Chief Assistant Attorney General, and Angela
Sierra , Deputy Attorney General; for the State of New Jersey
et al. by David Samson , Attorney General of New Jersey,
and Carol Johnston , Deputy Attorney General, and by the
Attorneys General for their respective States as follows: Janet
Napolitano of Arizona, Richard Blumenthal of
Connecticut, Thomas J. Miller of Iowa, J. Joseph Curran, Jr. , of Maryland, Thomas F. Reilly of Massachusetts, Jennifer
M. Granholm of Michigan, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Roy Cooper of
North Carolina, W A. Drew Edmondson of Oklahoma, Hardy
Myers of Oregon, Mark L. Shurtleff of Utah, and William H. Sorrell of Vermont; and for the Criminal
Justice Legal Foundation by Kent Briefs of amici curiae urging affirmance were filed for
the Council of Conservative Citizens by Edgar J. Steele; for the Rutherford Institute by John W
Whitehead and Steven H. Aden; and for the Thomas
Jefferson Center for the Protection of Free Expression by Robert M. O'Neil and J. Joshua
Wheeler. Martin E. Karlinsky , Howard W. Goldstein , Steven M. Freeman , Frederick M. Lawrence , and Elliot M. Mincberg filed a brief for the Anti-Defamation
League et al. as amici curiae .

															[ Footnote 1 ]

															After we granted certiorari, the Commonwealth enacted another
statute designed to remedy the constitutional problems identified
by the state court. See Va. Code Ann. § 18.2-423.01 (2002). Section
18.2-423.01 bans the burning of "an object" when done "with the
intent of intimidating any person or group of persons." The statute
does not contain any prima facie evidence provision. Section
18.2-423.01, however, did not repeal § 18.2-423, the cross-burning
statute at issue in this case.

															[ Footnote 2 ]

															JUSTICE THOMAS argues in dissent that cross burning is "conduct,
not expression." Post , at 394. While it is of course true
that burning a cross is conduct, it is equally true that the First
Amendment protects symbolic conduct as well as pure speech. See supra , at 358. As JUSTICE THOMAS has previously
recognized, a burning cross is a "symbol of hate," and a "a symbol
of white supremacy." Capitol Square Review and Advisory Bd. v.
Pinette , 515 U.
S. 753 , 770-771 (1995) (concurring opinion).

															[ Footnote 1 ]

															The plurality also asserts that "even where a defendant like
Black presents a defense, the prima facie evidence provision makes
it more likely that the jury will find an intent to intimidate
regardless of the particular facts of the case." Ante , at
365. There is no basis for this assertion. The Virginia Supreme
Court's opinion in Nance v. Commonwealth, 203 Va. 428,
432, 124 S. E. 2d 900, 903-904 (1962), states, in no uncertain
terms, that the presentation of a prima facie case "'relieves
neither the court nor the jury of the duty to determine all of the
questions of fact from the weight of the whole evidence.'" (Emphasis added.)

															[ Footnote 2 ]

															Overbreadth was, of course, the framework of analysis employed
by the Virginia Supreme Court. See 262 Va. 764, 777-778, 553 S. E.
2d 738, 745-746 (2001) (examining the prima-facie-evidence
provision in a section labeled "OVERBREADTH ANALYSIS" and holding
that the provision "is overbroad"). Likewise, in their submissions
to this Court, the parties' analyses of the prima-facie-evidence
provision focus on the question of overbreadth. Brief for
Petitioner 41-50 (confining its discussion of the
prima-facie-evidence provision to a section titled "THE VIRGINIA
STATUTE IS NOT OVERBROAD"); Brief for Respondents 39-41 (arguing
that "[t]he prima facie evidence provision . . .
render[s] [the statute] overbroad"); Reply Brief for Petitioner
13-20 (dividing its discussion of the prima-facie-evidence
provision into sections titled "There Is No Real Overbreadth" and
"There Is No Substantial Overbreadth"). This reliance on
overbreadth doctrine is understandable. This Court has made clear
that to succeed in a facial challenge without relying on
overbreadth doctrine, "the challenger must establish that no set of
circumstances exists under which the Act would be valid." United States v. Salerno , 481 U. S. 739 ,745 (1987).
As the Court's opinion concedes, some of the speech covered by §
18.2-423 can constitutionally be proscribed, ante , at
363.

															[ Footnote 3 ]

															Unquestionably, the process through which elements of a criminal
offense are established in a jury trial may raise serious
constitutional concerns. Typically, however, such concerns sound in
due process, not First Amendment overbreadth. E. g. , County Court of Ulster Cty. v. Allen , 442 U. S. 140 ,
156-157 (1979); Barnes v. United States , 412 U. S. 837 ,838 (1973); In re Winship , 397 U. S. 358 , 359
(1970). Respondents in this case have not challenged § 18.2-423
under the Due Process Clause, and neither the plurality nor the
Virginia Supreme Court relies on due process in declaring the
statute invalid.

															[ Footnote 4 ]

															Confronted with the incontrovertible fact that this statute
easily passes overbreadth analysis, the plurality is driven to the
truly startling assertion that a statute which is not invalid in
all of its applications may nevertheless be facially invalidated even if it is not overbroad. The only
expression of that proposition that the plurality can find in
our jurisprudence appears in footnote dictum in the 5-to-4 opinion
in Secretary of State of Md. v. Joseph H. Munson Co. , 467 U. S. 947 ,
965-966, n. 13 (1984). See id. , at 975 (REHNQUIST, J.,
joined by Burger, C. J., and Powell and O'CONNOR, JJ., dissenting). Stare decisis cannot explain the newfound affection for
this errant doctrine (even if stare decisis applied to
dictum), because the holding of a later opinion (joined by
six Justices) flatly repudiated it. See United States v.
Salerno, supra , at 745 (REHNQUIST, C. J., joined by White,
Blackmun, Powell, O'CONNOR, and SCALIA, JJ.) (to succeed in a
facial challenge without relying on overbreadth doctrine, "the
challenger must establish that no set of circumstances exists under
which the Act would be valid").

															Even if I were willing, as the plurality apparently is, to
ignore our repudiation of the Munson dictum, that case
provides no foundation whatever for facially invalidating a statute
under the conditions presented here. Our willingness facially to
invalidate the statute in Munson without reliance on First
Amendment overbreadth was premised on our conclusion that the
challenged provision was invalid in all of its
applications. We explained that "there is no core of easily
identifiable and constitutionally proscribable conduct that the
statute prohibits." Munson , 467 U. S., at 965-966. And we
stated that "[t]he flaw in the statute is not simply that it
includes within its sweep some impermissible applications, but that
in all its applications it operates on a fundamentally mistaken
premise that high solicitation costs are an accurate measure of
fraud." Id. , at 966. Unless the Court is prepared to
abandon a contention that it takes great pains to establish-that
"the history of cross burning in this country shows that cross
burning is often intimidating, intended to create a pervasive fear
in victims that they are a target of violence," ante , at
360-it is difficult to see how Munson has any bearing on
the constitutionality of the prima-facie-evidence provision.

															[ Footnote 5 ]

															The plurality's reliance on Terminiello v. Chicago , 337 U. S. 1 (1949),
is mistaken. In that case the Court deemed only the jury
instruction, rather than the ordinance under review, to be
constitutionally infirm. To be sure, it held that such a jury
instruction could never support a constitutionally valid
conviction, but that is quite different from holding the or dinance to be facially invalid. Insofar as the ordinance
was concerned, Terminiello made repeated references to the
as-applied nature of the challenge. Id. , at 3 (noting that
the defendant "maintained at all times that the ordinance as
applied to his conduct violated his right of free speech
. . . " (emphasis added)); id. , at 5 (noting
that "[aJs construed and applied [the provision] at least
contains parts that are unconstitutional" (emphasis added)); id. , at 6 ("The pinch of the statute is in its
application" (emphasis added)); ibid. ("The record
makes clear that petitioner at all times challenged the
constitutionality of the ordinance as construed and applied to
him" (emphasis added)). See also Isserles, Overcoming
Overbreadth: Facial Challenges and the Valid Rule Requirement, 48
Am. U. L. Rev. 359, 433, n. 333 (1998) (characterizing Terminiello as "adopting a court's jury instruction as an
authoritative narrowing construction of a breach of the peace
ordinance but ultimately confining its decision to overturning the
defendant's conviction rather than invalidating the statute on its
face").

															[ Footnote 6 ]

															Though the jury may well have embraced the former
(constitutionally permissible) understanding of its duties, that
possibility is not enough to dissipate the cloud of constitutional
doubt. See Sandstrom v. Montana , 442 U. S. 510 , 517 (1979)
(refusing to assume that the jury embraced a constitutionally sound
understanding of an ambiguous instruction: "[W]e cannot discount
the possibility that the jury may have interpreted the instruction
[improperly]").

															[ Footnote 1 ]

															Although three examples are given, the third may be skipped
here. It covers misleading advertising in a particular industry in
which the risk of fraud is thought to be great, and thus deals with
commercial speech with its separate doctrine and standards. R.
A. V. , 505 U. S., at 388-389.

															[ Footnote 2 ]

															The same conclusion also goes for the second R. A. V. exception relating to "'secondary effects.''' 505 U. S., at 389
(citing Renton v. Playtime Theatres, Inc. , 475 U. S. 41 , 48 (1986)).
Our "secondary effects" jurisprudence presupposes that the
regulation at issue is "unrelated to the suppression of free
expression." Ibid. [ Footnote 1 ] United States v. Guest , 383 U. S. 745 , 747-748,
n. 1 (1966) (quoting indictment charging conspiracy under 18 U. S.
C. § 241 (1964 ed.) to interfere with federally secured rights by, inter alia , "burning crosses at night in public view,"
"shooting Negroes," "beating Negroes," "killing Negroes," "damaging
and destroying property of Negroes," and "pursuing Negroes in
automobiles and threatening them with guns"); United States v.
Pospisil , 186 F.3d
1023 , 1027 (CA8 1999) (defendants burned a cross in
victims' yard, slashed their tires, and fired guns), cert. denied,
529 U. S. 1089 (2000); United States v. Stewart , 65 F.3d
918 , 922 (CA11 1995) (cross burning precipitated an exchange of
gunfire between victim and perpetrators), cert. denied sub nom.
Daniel v. United States , 516 U. S. 1134 (1996); United
States v. McDermott , 29 F.3d
404 , 405 (CA8 1994) (defendants sought to discourage
blacks from using public park by burning a cross in the park, as
well as by "waving baseball bats, axe handles, and knives; throwing
rocks and bottles; veering cars towards black persons; and
physically chasing black persons out of the park"); Cox v.
State , 585 So. 2d 182, 202 (Ala. Crim. App. 1991) (defendant
participated in evening of cross burning and murder), cert. denied,
503 U. S. 987 (1992); R. Caro, The Years of Lyndon Johnson: Master
of the Senate 847 (2002) (referring to a wave of "southern
bombings, beatings, sniper fire, and cross-burnings" in late 1956
in response to efforts to desegregate schools, buses, and parks);
Newton & Newton 21 (observing that "Jewish merchants were
subjected to boycotts, threats, cross burnings, and sometimes acts
of violence" by the Klan and its sympathizers); id. , at
361-362 (describing cross burning and beatings directed at a black
family that refused demands to sell the home); id. , at 382
(describing incident of cross burning and brick throwing at home of
Jewish officeholder); id. , at 583 (describing campaign of
cross burning and property damage directed at Vietnamese immigrant
fishermen); W. Wade, The Fiery Cross: The Ku Klux Klan in America
262-263 (1987) (describing incidents of cross burning, beatings,
kidnaping, and other "terrorism" directed against union organizers
in the South); id. , at 376 (cross burnings associated with
shooting into cars); id. , at 377 (cross burnings
associated with assaults on blacks); 1 R. Kluger, Simple Justice
378 (1975) (describing cross burning at, and subsequent shooting
into, home of federal judge who issued desegregation decisions);
Rubinowitz & Perry, Crimes Without Punishment: White Neighbors'
Resistance to Black Entry, 92 J. Crim. L. & C. 335, 342,
354-355, 388, 408-410, 419, 420, 421, 423 (Fall2001-Winter 2002)
(noting that an "escalating campaign to eject a [minority] family"
from a white neighborhood could begin with "cross burnings, window
breaking, or threatening telephone calls," and culminate with
bombings; describing other incidents of cross burning accompanied
by violence); Cross Burned at Manakin, Third in Area, Richmond
TimesDispatch, Feb. 26, 1951, p. 4, App. 318 (describing 1951
Virginia cross burning accompanied by gunfire).

															[ Footnote 2 ]

															See, e.g. , Va. Code Ann. § 18-327 (1950) (repealed
1960) (required separation of "white" and "colored" at any place of
entertainment or other public assemblage; violation was
misdemeanor); Va. Code Ann. § 20-54 (1960) (repealed 1968)
(prohibited racial intermarriage); Va. Code Ann. § 22-221 (1969)
(repealed 1972) ("White and colored persons shall not be taught in
the same school"); Va. Code Ann. §24-120 (1969) (repealed 1970)
(required separate listings for "white and colored persons" who
failed to pay poll tax); Va. Code Ann. § 38-281 (1950) (repealed
1952) (prohibited fraternal associations from having "both white
and colored members"); Va. Code Ann. § 53-42 (1967) (amended to
remove "race" 1968) (required racial separation in prison); Va.
Code Ann. § 56-114 (1974) (repealed 1975) (authorized State
Corporation Commission to require "separate waiting rooms" for
"white and colored races"); Va. Code Ann. § 56-326 (1969) (repealed
1970) (required motor carriers to "separate" their "white and
colored passengers," violation was misdemeanor); §§ 56-390 and
56-396 (repealed 1970) (same for railroads); § 58-880 (repealed
1970) (required separate personal property tax books for "white[s]"
and "colored").

															[ Footnote 3 ]

															As the Court explained in Allen , a permissive inference
or presumption "allows-but does not require-the trier of fact to
infer the elemental fact from proof by the prosecutor of the basic
one and which places no burden of any kind on the defendant. In
that situation the basic fact may constitute prima facie evidence
of the elemental fact . . . . Because this
permissive presumption leaves the trier of fact free to credit or
reject the inference and does not shift the burden of proof, it
affects the application of the 'beyond a reasonable doubt' standard
only if, under the facts of the case, there is no rational way the
trier could make the connection permitted by the inference." 442 U.
S., at 157 (citations omitted). By contrast, "[a] mandatory
presumption . . . may affect not only the strength of the
'no reasonable doubt' burden but also the placement of that burden;
it tells the trier that he or they must find the elemental
fact upon proof of the basic fact, at least unless the defendant
has come forward with some evidence to rebut the presumed
connection between the two facts." Ibid.