Such a provision, the Court argued, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology".
In 1952, the Virginia Legislature passed a law banning the wearing of masks in public and cross burning after members of the Ku Klux Klan Bill Hendricks of Florida and Thomas Hamilton of South Carolina announced plans to hold rallies in the state.
[2] In 1967, Wilson Ralph Price and Nanny Jane Price were arrested and convicted for burning a cross on a public sidewalk in Richmond, but the Virginia Supreme Court overturned their conviction the next year finding the ban did not apply to public property because the statutes language limited it to the cross burnings "on the property of another.
[6] In 2001, the Supreme Court of Virginia found that the cross burning statute was unconstitutional and overturned Elliot and O'Mara's convictions.
Virginia appealed the case to the U.S. Supreme Court arguing that Elliot and O'Mara's convictions should have been upheld because they had clear intent to intimidate when they lit a cross on the property of another without the owner's consent.
[7] On August 22, 1998, Barry Black held a Ku Klux Klan rally on private property and with the consent of the owner in Hillsville, Virginia, located in rural Carroll County.
[8] A neighbor and the county sheriff witnessed the event and heard attendees make many negative comments concerning black people.
In 2001, the Supreme Court of Virginia found that the cross burning statute was unconstitutional and overturned Black's conviction.
This text in particular was found to be unconstitutional as it violates the Fourteenth Amendment insofar as it provides the presumption, that the act of cross burning is evidence of the intent to intimidate.
The conduct restriction furthered an important government interest that was unrelated to the suppression of speech, because, "cross burning done with the intent to intimidate has a long and pernicious history as a signal of impending violence."