O'MARA v. Com.

• Decision Date: 03 October 2000
• Docket Number: Record No. 0992-99-1,Record No. 0997-99-1.
• Citation: 535 S.E.2d 175,33 Va. App. 525
• Parties: Jonathan Stephen O'MARA v. COMMONWEALTH of Virginia. Richard J. Elliott v. Commonwealth of Virginia.
• Court: Virginia Court of Appeals

535 S.E.2d 175

33 Va. App. 525

Jonathan Stephen O'MARA v. COMMONWEALTH of Virginia.

Richard J. Elliott v. Commonwealth of Virginia.

Record Nos. 0992-99-1, 0997-99-1.

Court of Appeals of Virginia, Chesapeake.

October 3, 2000.

Kevin E. Martingayle (Stallings & Richardson, P.C., on briefs), Virginia Beach, for Jonathan Stephen O'Mara.

James O. Broccoletti (Zoby & Broccoletti, on brief), Norfolk, for Richard J. Elliott.

H. Elizabeth Shaffer, Assistant Attorney General; John H. McLees, Jr., Senior Assistant Attorney General (Mark L. Earley, Attorney General, on briefs), for appellee.

Present: COLEMAN, BRAY and BUMGARDNER, JJ.

BRAY, Judge.

Pursuant to the terms of a plea agreement, Jonathan O'Mara pled guilty to "Attempted Cross Burning" and "Conspiracy to Commit a Felony," violations of Code §§ 18.2-423 and 18.2-22, respectively, expressly reserving the right to appeal a prior order of the trial court which denied his challenge to the constitutionality of Code § 18.2-423. In a separate proceeding, Richard J. Elliott, codefendant with O'Mara, was convicted by a jury for attempted cross burning, after joining with defendant O'Mara in the unsuccessful challenge to the constitutionality of Code § 18.2-423 before the trial court.¹

Accordingly, both O'Mara and Elliott (defendants) maintain on appeal "that the code section is unconstitutional as violative of the free speech and expression protections" guaranteed by both the United States and Virginia Constitutions. Joining the two appeals for resolution by this Court, we affirm the respective convictions.

I.

The substantive facts are uncontroverted. On the evening of May 2, 1998, defendants, together with "approximately fifteen individuals," were "consuming alcohol" at the Virginia Beach home of David Targee. When defendant Elliott expressed unspecified "complaint[s] ... about his neighbor," James Jubilee, and his desire to "`get back' at him," someone "suggested that they burn a cross in [Jubilee's] yard." In response, Targee and defendants immediately constructed a crude cross in Targee's garage and proceeded in Targee's truck to the Jubilee home. Elliott "handed the cross" to defendant O'Mara, who erected and ignited it on Jubilee's property, and the three returned to Targee's residence. The respective records do not clearly specify Jubilee's race.

Jubilee later discovered the "partially burned cross" and notified police, resulting in the subject prosecutions for violations of Code § 18.2-423 and the attendant conspiracy.

II.

Code § 18.2-423 provides:

It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.

Defendants contend that the statute impermissibly infringes upon expressive conduct, speech protected by the First and Fourteenth Amendments to the Constitution of the United States and Article I, § 12 of the Virginia Constitution, and, therefore, is "plainly unconstitutional."² "`In assessing the constitutionality of a statute ... Nile burden is on the challenger to prove the alleged constitutional defect.'" Woolfolk v. Commonwealth, 18 Va. App. 840, 848, 447 S.E.2d 530, 534 (1994) (quoting Perkins v. Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 (1991)).

"Every act of the legislature is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable." Bosang v. Iron Belt Bldg. & Loan Ass'n, 96 Va. 119, 123, 30 S.E. 440, 441 (1898). "When the constitutionality of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge. All laws are presumed to be constitutional and this presumption is one of the strongest known to the law." Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959).

Moses v. Commonwealth, 27 Va.App. 293, 298-99, 498 S.E.2d 451, 454 (1998).

The First Amendment declares, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." The Fourteenth Amendment prohibits state action in violation of the First Amendment.

Similarly, Article I, § 12 of the Virginia Constitution establishes:

That the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.

"Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution." Bennefield v. Commonwealth, 21 Va.App. 729, 739-40, 467 S.E.2d 306, 311 (1996).

Although "[t]he First Amendment literally forbids the abridgement only of `speech,'" the Supreme Court has "long recognized that its protection does not end at the spoken or written word." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989). "[C]onduct may be `sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.'" Id, (quoting Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974)). In identifying expressive conduct, the Court must determine "whether lain intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.'" Id. (alterations in original) (quoting Spence, 418 U.S. at 410-11, 94 S.Ct. at 2730). If so, a proscription of such activity by government "because of disapproval of the ideas expressed" is "content based" suppression of free speech, offensive to the First Amendment and "presumptively invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305 (1992).

However, "our society . . . has permitted restrictions upon the content of speech in a few limited areas, which are `of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" Id. at 382-83, 112 S.Ct. at 2542-43 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). Thus, First Amendment protection "does not include a freedom to disregard these traditional limitations," thereby allowing government to regulate obscenity, defamation, "fighting words," id. at 383, 112 S.Ct. at 2543 (citing Chaplinsky, 315 U.S. at 572,62 S.Ct. at 769), and threats of violence. See id. at 383, 388, 112 S.Ct. at 2546 (citing Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969)); see also In re: Steven S., 25 Cal.App.4th 598, 31 Cal.Rptr.2d 644, 647 (1994) (holding that threats and fighting words are "remove[d] . . . from the scope of the First Amendment"); Florida v. T.B.D., 656 So.2d 479, 480-81 (Fla.1995),cert. denied, 516 U.S. 1145, 116 S.Ct. 1014, 134 L.Ed.2d 95 (1996) (concluding that threats of violence and fighting words are proscribable because government has "valid interest" in protecting citizens both from fear of violence and violence).

The "`true threat'" doctrine articulated by the Supreme Court in Watts permits punishment of actual speech or expressive conduct "when a reasonable person would foresee that the threat would be interpreted as a serious expression of intention to inflict bodily harm." In re: Steven S., 31 Cal.Rptr.2d at 647 (citing U.S. v. Orozco Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990)). Similarly, the Court's "fighting words doctrine" expressed in Chaplinsky removes the shield of the First Amendment from "statements `which by their very utterance inflict injury or tend to incite an immediate breach of the peace.'" Id. (quoting Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769); see Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785, 29 L.Ed.2d 284 (1971)

(describing fighting words as expressions likely to provoke a violent reaction when directed to another).

Here, the provisions of Code § 18.2-423 specifically prohibit the burning of a cross "on the property of another, a highway or other public place," "with the intent of intimidating any person or group of persons." Historically, a flaming cross is "inextricably linked . . . to sudden and precipitous violence—lynchings, shootings, whippings, mutilations, and home-burnings," a "connection... [with] forthcoming violence [that] is clear and direct." T.B.D., 656 So.2d at 481. Hence, "a burning cross conveys ideas capable of eliciting powerful responses from those engaging in the conduct and those receiving the message." State v. Ramsey, 311 S.C. 555, 430 S.E.2d 511, 514 (1993).

Manifestly, the pernicious message of such conduct, a clear and direct expression of an intention to do one harm, constitutes a true threat envisioned by Watts, irrespective of racial, religious, ethnic or like characteristics peculiar to the victim. Moreover, the attendant fear and intimidation subjects the victim to an immediate and calculated injury that invites a breach of the peace, fighting words within the intendment of Chaplinsky. Thus, although such expressive conduct doubtless constitutes speech, the prohibition of which unavoidably implicates content, the message is beyond the protection of the ...