                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Bray and Bumgardner
Argued at Chesapeake, Virginia


JONATHAN STEPHEN O'MARA

v.   Record No. 0992-99-1

COMMONWEALTH OF VIRGINIA                         OPINION BY
                                           JUDGE RICHARD S. BRAY
RICHARD J. ELLIOTT                            OCTOBER 3, 2000

v.   Record No. 0997-99-1

COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Frederick B. Lowe, Judge

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

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

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


     Pursuant to the terms of a plea agreement, Jonathan O'Mara

pled guilty to "Attempted Cross Burning" and "Conspiracy to

Commit a Felony," violations of Code §§ 18.2-423 and 18.2-22,

respectively, expressly reserving the right to appeal a prior

order of the trial court which denied his challenge to the

constitutionality of Code § 18.2-423.    In a separate proceeding,

Richard J. Elliott, codefendant with O'Mara, was convicted by a
jury for attempted cross burning, after joining with defendant

O'Mara in the unsuccessful challenge to the constitutionality of

Code § 18.2-423 before the trial court. 1

     Accordingly, both O'Mara and Elliott (defendants) maintain

on appeal "that the code section is unconstitutional as

violative of the free speech and expression protections"

guaranteed by both the United States and Virginia Constitutions.

Joining the two appeals for resolution by this Court, we affirm

the respective convictions.

                                I.

     The substantive facts are uncontroverted.   On the evening

of May 2, 1998, defendants, together with "approximately fifteen

individuals," were "consuming alcohol" at the Virginia Beach

home of David Targee.   When defendant Elliott expressed

unspecified "complaint[s] . . . about his neighbor," James

Jubilee, and his desire to "'get back' at him," someone

"suggested that they burn a cross in [Jubilee's] yard."    In

response, Targee and defendants immediately constructed a crude

cross in Targee's garage and proceeded in Targee's truck to the

Jubilee home.   Elliott "handed the cross" to defendant O'Mara,

who erected and ignited it on Jubilee's property, and the three




     1
       Although Judge Lowe presided at the trials of both O'Mara
and Elliott, defendants' constitutional challenges were decided
by Judge Alan E. Rosenblatt, following an extensive hearing and
related argument and memoranda of law.

                               - 2 -
returned to Targee's residence.    The respective records do not

clearly specify Jubilee's race.

     Jubilee later discovered the "partially burned cross" and

notified police, resulting in the subject prosecutions for

violations of Code § 18.2-423 and the attendant conspiracy.

                                  II.

     Code § 18.2-423 provides:

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

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

Defendants contend that the statute impermissibly infringes upon

expressive conduct, speech protected by the First and Fourteenth

Amendments to the Constitution of the United States and Article

I, § 12 of the Virginia Constitution, and, therefore, is

"plainly unconstitutional." 2

     "'In assessing the constitutionality of a statute . . .

[t]he burden is on the challenger to prove the alleged

constitutional defect.'"   Woolfolk v. Commonwealth, 18 Va. App.



     2
       "[L]itigants may challenge a statute on first amendment
grounds even when their own speech is unprotected." Coleman v.
City of Richmond, 5 Va. App. 459, 463, 364 S.E.2d 239, 241-42
(1988) (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).

                                 - 3 -
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

                              - 4 -
          the freedom of speech or of the press, nor
          the right of the people peaceably to
          assemble, and to petition the government for
          the redress of grievances.

"Our courts have consistently held that the protections afforded

under the Virginia Constitution are co-extensive with those in

the United States Constitution."     Bennefield v. Commonwealth, 21

Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996).

     Although "[t]he First Amendment literally forbids the

abridgement only of 'speech,'" the Supreme Court has "long

recognized that its protection does not end at the spoken or

written word."     Texas v. Johnson, 491 U.S. 397, 404 (1989).

"[C]onduct may be 'sufficiently imbued with elements of

communication to fall within the scope of the First and

Fourteenth Amendments.'"     Id. (quoting Spence v. Washington, 418

U.S. 405, 409 (1974)).    In identifying expressive conduct, the

Court must determine "whether '[a]n intent to convey a

particularized message was present, and [whether] the likelihood

was great that the message would be understood by those who

viewed it.'"     Id. (alterations in original) (quoting Spence, 418

U.S. at 410-11).    If so, a proscription of such activity by

government "because of disapproval of the ideas expressed" is

"content based" suppression of free speech, offensive to the

First Amendment and "presumptively invalid."     R.A.V. v. City of

St. Paul, 505 U.S. 377, 382 (1992).




                                 - 5 -
     However, "our society . . . has permitted restrictions upon

the content of speech in a few limited areas, which are 'of such

slight social value as a step to truth that any benefit that may

be derived from them is clearly outweighed by the social

interest in order and morality.'"     Id. at 382-83 (quoting

Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).     Thus,

First Amendment protection "does not include a freedom to

disregard these traditional limitations," thereby allowing

government to regulate obscenity, defamation, "fighting words,"

id. at 383 (citing Chaplinsky, 315 U.S. at 572), and threats of

violence.   See id. at 383, 388 (citing Watts v. United States,

394 U.S. 705, 707 (1969)); see also In re:     Steven S., 31 Cal.

Rptr. 2d 644, 647 (Ct. App. 1994) (holding that threats and

fighting words are "remove[d] . . . from the scope of the First

Amendment"); Florida v. T.B.D., 656 So. 2d 479, 480-81 (Fla.

1995), cert. denied, 516 U.S. 1145 (1996) (concluding that

threats of violence and fighting words are proscribable because

government has "valid interest" in protecting citizens both from

fear of violence and violence).

     The "'true threat'" doctrine articulated by the Supreme

Court in Watts permits punishment of actual speech or expressive

conduct "when a reasonable person would foresee that the threat

would be interpreted as a serious expression of intention to

inflict bodily harm."   In re:    Steven S., 31 Cal. Rptr. 2d at

647 (citing Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir.

                                 - 6 -
1990)).    Similarly, the Court's "fighting words doctrine"

expressed in Chaplinsky removes the shield of the First

Amendment from "statements 'which by their very utterance

inflict injury or tend to incite an immediate breach of the

peace.'"    Id. (quoting Chaplinsky, 315 U.S. at 572); see Cohen

v. California, 403 U.S. 15, 20 (1971) (describing fighting words

as expressions likely to provoke a violent reaction when

directed to another).

     Here, the provisions of Code § 18.2-423 specifically

prohibit the burning of a cross "on the property of another, a

highway or other public place," "with the intent of intimidating

any person or group of persons."   Historically, a flaming cross

is "inextricably linked . . . to sudden and precipitous violence

– lynchings, shootings, whippings, mutilations, and

home-burnings," a "connection . . . [with] forthcoming violence

[that] is clear and direct."    T.B.D., 656 So. 2d at 481.    Hence,

"a burning cross conveys ideas capable of eliciting powerful

responses from those engaging in the conduct and those receiving

the message."    State v. Ramsey, 430 S.E.2d 511, 514 (S.C. 1992).

     Manifestly, the pernicious message of such conduct, a clear

and direct expression of an intention to do one harm,

constitutes a true threat envisioned by Watts, irrespective of

racial, religious, ethnic or like characteristics peculiar to

the victim.   Moreover, the attendant fear and intimidation

subjects the victim to an immediate and calculated injury that

                                - 7 -
invites a breach of the peace, fighting words within the

intendment of Chaplinsky.     Thus, although such expressive

conduct doubtless constitutes speech, the prohibition of which

unavoidably implicates content, the message is beyond the

protection of the First Amendment and appropriately subject to

proscription by government.

     Defendants' reliance upon Brandenburg v. Ohio, 395 U.S. 444

(1969), to support the contention that Code § 18.2-423

unconstitutionally prohibits "merely intimidating someone," at

once ignores the well-established symbolism of the burning cross

and misapplies Brandenburg.     Brandenburg addressed a challenge

to the constitutionality of Ohio's "Criminal Syndicalism

statute," which proscribed, inter alia, the "'advocacy . . .

[of] the duty, necessity, or propriety of crime, sabotage,

violence or unlawful methods of terrorism as a means of

accomplishing industrial or political reform.'"      Id. at 444-45.

Thus, the Brandenburg Court was concerned with the propriety of

governmental restrictions on the "advocacy of the use of force

or of law violation" in the context of a reform movement, an

issue unrelated to the vile and malevolent expression

contemplated by Code § 18.2-423.     Id. at 447.   Accordingly, the

Brandenburg admonishment that states may "forbid or proscribe

[such] advocacy" only if "directed to inciting or producing

imminent lawless action and . . . likely to incite or produce



                                 - 8 -
such action" does not similarly delimit proscribable threats and

fighting words.    Id.

     Defendants' assertion that R.A.V. v. St. Paul "makes it

clear . . . § 18.2-423 is unconstitutional" is, likewise,

without merit.    R.A.V. examined the constitutionality of a St.

Paul, Minnesota ordinance, which provided, in pertinent part,

            Whoever places on public or private property
            a symbol, object, appellation,
            characterization or graffiti, including, but
            not limited to, a burning cross . . . which
            one knows or has reasonable grounds to know
            arouses anger, alarm or resentment in others
            on the basis of race, color, creed, religion
            or gender commits disorderly conduct and
            shall be guilty of a misdemeanor.

R.A.V., 505 U.S. at 380 (citing Minn. Legis. Code § 292.02

(1990)).   Unlike Code § 18.2-423, which proscribes cross

burnings with the intent to intimidate anyone, the St. Paul

ordinance prohibited such "speech solely on the basis of the

subjects the speech addresses," race, color, creed, religion or

gender.    R.A.V., 505 U.S. at 381.

     In declaring the enactment unconstitutional, the Supreme

Court accepted the "authoritative statement" by the Minnesota

Supreme Court "that the ordinance reaches only those expressions

that constitute 'fighting words,'" 3 id. at 381, and reaffirmed

the doctrine that "areas of speech can, consistently with the


     3
       In overruling defendants' constitutional challenges in the
instant prosecutions, Judge Rosenblatt also determined that Code
§ 18.2-243 regulated fighting words.


                                - 9 -
First Amendment, be regulated because of their constitutionally

proscribable content – (obscenity, defamation, [threats,

fighting words] etc.)."     Id. at 383 (emphasis in original).

However, the Court cautioned that such "categories of speech

[are not] entirely invisible to the Constitution" and cannot "be

made the vehicles for content discrimination unrelated to their

distinctively proscribable content."     Id. at 383-84.   Thus, when

"St. Paul . . . proscribed fighting words of whatever manner

that communicates messages of racial, gender or religious

intolerance," the city impermissibly engaged in "[s]electivity

[which] creates the possibility that [it] is seeking to handicap

the expression of particular ideas."     Id. at 394 (emphasis

added); see In re:     Steven S., 31 Cal. Rptr. 2d at 649 ("speech

and expressive conduct may be regulated [but] such regulation

may not discriminate within that category on the basis of

content"); T.B.D., 656 So. 2d at 481 (such regulation may not

"play[] favorites").

     In contrast, Code § 18.2-423 regulates, without favor or

exception, conduct, which, despite elements of expression and

content, is unprotected by the First Amendment. 4


     4
       Post-R.A.V. decisions of other jurisdictions cited by
defendant in support of a different result involve statutes
substantially dissimilar from Code § 18.2-423. See Pinette v.
Capitol Square Review and Advisory Bd., 874 F.Supp. 791 (S.D.
Ohio 1994) (statute established permit requirements to conduct
public assembly); State v. Shelton, 629 A.2d 753 (Md. 1993)
(statute proscribed cross burning to protect property owners
from unwanted fires and safeguard community from fires

                                - 10 -
     Finally, defendant challenges Code § 18.2-423, first, as

overbroad, regulating both protected and unprotected speech,

and, secondly, as underinclusive, ignoring other modes of

proscribable speech.   However, overbreadth assumes

constitutional dimension only when "'there [is] a realistic

danger that the statute . . . will significantly compromise

recognized First Amendment protections of parties not before the

court.'"   Parker v. Commonwealth, 24 Va. App. 681, 690, 485

S.E.2d 150, 154-55 (1997) (quoting Members of City Council of

City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,

800-01 (1984)).   The prohibition of Code § 18.2-423 is expressly

limited to a person or persons burning a cross with the specific

intent to intimidate another, a threat and fighting words

unworthy of First Amendment guarantees.   Further,

underinclusiveness is condemned by R.A.V. only if the result is

content discrimination.   See R.A.V., 505 U.S. at 387.   Code

§ 18.2-423 criminalizes a long recognized, particularly virulent




generally); State v. Vawter, 642 A.2d 349 (N.J. 1994) (statute
proscribed messages based upon race, color, creed or religion);
State v. Talley, 858 P.2d 217 (Wash. 1993) (statute proscribed
certain conduct related to the race, color, religion, ancestry,
natural origin, or mental, physical or sensory handicap of
another).
     In contrast, jurisdictions examining the constitutionality
of statutes more akin to Code § 18.2-423 are in accord with our
conclusion. See In re: Steven S., 31 Cal. Rptr. 2d 644
(statute proscribed cross-burning intended to terrorize owner or
occupant); T.B.D., 656 So. 2d 479 (statute proscribed burning of
cross on property of another without permission).

                              - 11 -
and incendiary mode of proscribable expressive conduct, a

prohibition free of content discrimination.

     We, therefore, conclude that Code § 18.2-423 suffers from

none of the several unconstitutional infirmities advanced by

defendants.   The statute targets only expressive conduct

undertaken with the intent to intimidate another, conduct

clearly proscribable both as fighting words and a threat of

violence.   The statute does not discriminate in its prohibition

and is neither overbroad nor underinclusive.

     Accordingly, we affirm the convictions.

                                                   Affirmed.




                              - 12 -
