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B. Content Discrimination.

The Virginia Supreme Court held that Virginia's cross-burning statute ran afoul of the rule of R. A. V. because it is "selective regulation of speech based upon content." Black v. Commonwealth, 262 Va. 764, 771, 553 S. E. 2d 738, 742 (2001) (capitalization omitted). This is an overly broad interpretation of R. A. V.

R. A. V. held that areas of speech that can be "regulated because of their constitutionally proscribable content" may not "be made the vehicle for content discrimination unrelated to their distinctively proscribable content." 505 U. S., at 383-384 (emphasis omitted). On the other hand, "content discrimination" is permitted "[w]hen the basis for [it] consists entirely of the very reason the entire class of speech at issue is proscribable . . . ." Id., at 388. For example, the state may discriminate among obscene materials by the degree of obscenity. Ibid. Of particular relevance to this case, R. A. V. noted that "a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud . . . is in its view greater there." Id., at 388-389. Analogously, a state may prohibit cross burning selectively if the degree of terror caused by this particular form of threat "is in its view greater there."

The distinction between valid content discrimination along the same dimension that makes the category proscribable in the first place and invalid discrimination based on some other aspect of the content is similar to the so-called "content-neutral" requirement for "time, place, or manner" restrictions. Id., at 386.

"And just as the power to proscribe particular speech on the basis of a noncontent element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the basis of other content elements." Ibid. (emphasis in original).

The test for "time, place, or manner restrictions" is, in turn, substantially equivalent to the test for "expressive conduct" regulation. SeeClark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). The corresponding prong of that test is that "the governmental interest is unrelated to the suppression of free expression." United States v. O'Brien, 391 U. S. 367, 377 (1968). Adapted to the present case, the test is whether the governmental interest in prohibiting cross-burning threats is related to the reason that threats in general are not protected speech.

Assessment of governmental interests and the purposes of legislation is a "hazardous matter." Id., at 383. Laws have multiple effects. If one effect of a law is permissible and another is not, application of the test requires a court to identify which is the "purpose." This issue was confronted by the plurality in Erie v. Pap's A.M., 529 U. S. 277, 289-292 (2000), a nude dancing case. ⁽³⁾

In Erie, the state court had found two purposes--the legitimate purpose "to combat the negative secondary effects" of nude dancing and the illegitimate purpose of "suppressing the erotic message of the dance." Id., at 291-292. That second purpose, the state court held, invalidated the statute. Id., at 292. "A majority of the Court rejected that view in Barnes, and [the plurality did] so again" in Erie. Ibid. "[T]his Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive." Ibid.; O'Brien, 391 U. S., at 383.

Given the burning cross's history as the symbol of the Ku Klux Klan, there are two obvious reasons for distinguishing a cross burning from other forms of threats--the greater terror it strikes into the hearts of its targets and its association with racist ideology. See In re Steven S., 25 Cal. App. 4th 598, 606-607, 31 Cal. Rptr. 2d 644, 647 (1994). The first reason is plainly legitimate. Congress can legitimately distinguish threats to the President from other threats "since the reasons why threats of violence are outside the First Amendment . . . have special force when applied to the person of the President." R. A. V., 505 U. S., at 388 (citing Watts, 394 U. S., at 707). Beyond dispute, "protecting individuals from the fear of violence," ibid., has "special force" when applied to a form of threat used by a large, notorious terrorist organization.

The "alleged illicit motive" in this case, cf. Erie, 529 U. S., at 292, is to suppress " 'the controversial racial and religious messages which [cross burnings] impart.' " Black, 262 Va., at 776, 553 S. E. 2d, at 745 (quoting State v. Sheldon, 332 Md. 45, 629 A. 2d 753, 757 (1993)). As an initial matter, the notion that the Virginia General Assembly of 1952 sought to suppress the segregationist ideology motivating the Klan's activities borders on absurd to one who lived there during the civil rights struggles of the 1950s and 1960s. This was a jurisdiction that maintained de jure segregated schools for a decade in defiance of Brown v. Board of Education, 347 U. S. 483 (1954). ⁽⁴⁾ It was the Klan's terrorist means, not its segregationist ends, that triggered widespread revulsion and motivated the 1952 legislature to enact this statute almost unanimously. See App. to Pet. for Cert. 100. "Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy." R. A. V., 505 U. S., at 390.

The First Amendment does not require that an otherwise valid limitation on speech avoid disparate impact on different speakers. A restriction on the volume of music has a much greater impact on hard rockers than on string quartets, but the limitation is valid nonetheless. "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989). The prohibition on draft card burning obviously impacted the expressive conduct of those who opposed the Vietnam War and not those who favored it, but the prohibition was still valid. See O'Brien, 391 U. S., at 386; Erie, 529 U. S., at 292. The fact that the present statute has a greater impact on the expression of hate-spewing bigots than it does on believers in racial equality does not render it invalid if it otherwise qualifies as permissible regulation of a particularly harmful form of threat.

In R. A. V., the purpose of discrimination on the basis of message was apparent on the face of the ordinance, and no amount of narrowing construction by the state court could save it. By its terms, "the ordinance applies only to 'fighting words' that insult, or provoke violence, 'on the basis of race, color, creed, religion, or gender.' " 505 U. S., at 391. In Erie, the state court found a dual purpose, and this Court held that the legitimate purpose was sufficient. See 529 U. S., at 291-298. In the present case, the Virginia Supreme Court focused only on what it perceived as "hostility" toward an "underlying message" of "expression of bigotry" in the burning cross, 262 Va., at 779, 553 S. E. 2d, at 746, ignoring the entirely legitimate reason for the prohibition. This raises the question of whether any implicit finding of legislative purpose in this discussion is binding on this Court, as a state high court interpretation of a state statute.

Wisconsin v. Mitchell, 508 U. S. 476 (1993) comes closest to the present case in this regard. The state high court's conclusion that the "hate crime" statute punished thought rather than conduct was not a binding construction of the statute. See id., at 483-484. The state court's construction "in the sense of defining the meaning of a particular statutory word or phrase," id., at 484, is binding, but "this Court is the final arbiter of whether the Federal Constitution necessitated the invalidation of a state law." New York v. Ferber, 458 U. S. 747, 767 (1982). A state court should not be able to insulate its decision from this Court's review simply by ignoring an obvious, legitimate purpose of a statute.

This statute prohibits conduct which the state has every right to prohibit. To the extent that it distinguishes a type of threat on the basis of content, it does so on the wholly legitimate basis of the exceptionally threatening effect of that content. The statute is valid as applied to the act of defendants Elliott and O'Mara. The only remaining question in their case is whether the statute is nonetheless invalid as "overbroad."

III. Narrowing construction and severability
must be considered before determining if any overbreadth is substantial.

Defendant Black burned a cross at a Ku Klux Klan rally held on private property with the permission of the owner. The requisite intimidation was found from the reaction of a neighbor, who feared arson of her house and harm to her children. See Black v.Commonwealth, 262 Va. 764, 782, 553 S. E. 2d 738, 748-749 (2001) (Hassell, J., dissenting).

Unlike Elliott and O'Mara, Black has a plausible argument that his conduct falls in the zone of protected expression rather than unprotected threats. The California Court of Appeal distinguished the two types of cross burnings in In re Steven S., 25 Cal. App. 4th 598, 606-607, 31 Cal. Rptr. 2d 644, 647 (1994) (emphasis in original, footnote omitted):

"Cross burning conveys a message--the Ku Klux Klan's creed of racial hatred. As such, it implicates the First Amendment's guarantee of freedom of speech. [Citations.]

     "But an unauthorized cross burning on another person's property, which we shall call 'malicious' cross burning for shorthand purposes, as distinguished from a ritual cross burning at a Klan gathering, does more than convey a message. It inflicts immediate injury by subjecting the victim to fear and intimidation, and it conveys a threat of future physical harm."

Amicus understands that the Commonwealth will argue that under the circumstances of this case, Black's cross burning comes within the definition of proscribable conduct. We will not repeat that argument here. Instead, we will address the question of whether, if Steven S.has drawn the constitutional line correctly, the Virginia statute must be stricken in its entirety as "overbroad."

A. Narrowing Construction.

The first and simplest way to deal with an overbreadth challenge to a statute is to construe the statute not to apply outside the constitutional boundaries. The dissent in the present case interpreted the statute to apply only to "real threats." See 262 Va., at 793, 553 S. E. 2d, at 754. So construed, there is no overbreadth question. Black's case would reduce to routine questions of correctness of jury instructions and sufficiency of the evidence. The case might also qualify for the more exacting review of facts on appeal sometimes afforded "in those cases in which it is contended that the communication in issue is within one of the few classes of 'unprotected' speech." Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 503 (1984); see United States v. Hanna, 293 F. 3d 1080, part III (CA9, June 20, 2002).

In the present case, the Virginia Supreme Court did not discuss in any detail the correspondence between the boundaries of the statute and the constitutional "threat" limit because of its mistaken view that the statute transgressed the rule of R. A. V. See part II, supra. This omission puts this Court in the awkward position of considering an overbreadth challenge without a definitive statutory interpretation from the state court. Cf. Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 509 (1985) (O'Connor, J., concurring).

If the R. A. V. question is resolved as suggested in part II, supra, there are several alternative ways for this Court to deal with the statutory interpretation question. The Court could remand for that determination, certify a question to the Virginia Supreme Court, or assume for the sake of argument that the statute does reach some protected expression and proceed to the question of partial versus full invalidation on that assumption. The latter course was taken in Brockett, 472 U. S., at 504.

B. Severability.

Assuming that the statute reaches cross burnings which are not targeted at anyone in particular, and further assuming that such applications of the statute cross the constitutional line, under the principles set forth in Brockett, "[f]acial invalidation of the statute [is] nonetheless improvident." Id., at 501. Partial invalidation is not limited to excising particular words or phrases from statutory language. An overbroad statute may also be cured by identifying valid and invalid applications of its language, so long as that can be done in a way that cures the uncertainty of applications and resulting chilling effect on protected expression. In United States v. Grace, 461 U. S. 171, 175 (1983), a statute regulating speech on the Supreme Court "grounds" was invalidated only as applied to the perimeter sidewalks. SeeBrockett, supra, at 503. Brockett itself held that an obscenity statute could be valid as applied to some kinds of "lust" and invalid as to others. If "intimidating" under the Virginia statute really does extend further than constitutionally proscribable "threats," the statute is invalid to that extent, but only to that extent, and a simple holding to that effect by this Court or the Virginia Supreme Court is sufficient to cure any overbreadth. Following such a holding, there is no longer a "danger . . . of sweeping and improper application," NAACP v.Button, 371 U. S. 415, 433 (1963), and the justification for applying the drastic overbreadth rule vanishes.

The Virginia Supreme Court focused its overbreadth analysis on the novel theory that threat of prosecution rather than actual application of the statute was a danger sufficient to warrant invalidation of the entire statute. See Black, 262 Va., at 777-778, 553 S. E. 2d, at 746; Pet. for Cert. 28-29. This holding is based on the final sentence of the statute: "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Again, we leave to the Commonwealth the argument that this provision is constitutional. Assuming for the sake of argument that it does present a First Amendment problem, it was error as a matter of federal constitutional law to use this sentence to invalidate the entire statute without considering severability.

Severability is a matter of legislative intent. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999). If the Virginia Supreme Court had actually considered severability and decided that the last sentence was not severable, that interpretation would be binding on this Court. The state court did not consider the question, though, and this appears to be a crystal clear case of severability. We need not speculate whether the legislature would have enacted the statute without the last sentence. Cf. Brockett, 472 U. S., at 506. We know it actually did. The language in question was added as the last amendment to the statute, in 1975. Black, 262 Va., at 776, 553 S. E. 2d, at 745.

New York v. Ferber, 458 U. S. 747, 769, n. 24 (1982) noted in dictum that federal courts must consider severability and that state courts are "free" to do so. Ferber did not consider whether state courts must consider severability, as the issue was not presented. Ferber held that the "substantial overbreadth" principles of Broadrick v. Oklahoma, 413 U. S. 601 (1973), apply to cases in the state courts as well as the federal courts.

     "While the construction that a state court gives a state statute is not a matter subject to our review, [citations], this Court is the final arbiter of whether the Federal Constitution necessitated the invalidation of a state law. It is only through this process of review that we may correct erroneous applications of the Constitution that err on the side of an overly broad reading of our doctrines and precedents, as well as state-court decisions giving the Constitution too little shrift. A state court is not free to avoid a proper facial attack on federal constitutional grounds. [Citation.] By the same token, it should not be compelled to entertain an overbreadth attack when not required to do so by the Constitution." Ferber, 458 U. S., at 767.

This rationale applies as much to the partial invalidation principle of Brockett as it does to the substantiality requirement of Broadrick, with one caveat. The principle requires the state court to consider severability, and its failure to do so is federal law error, reversible by this Court. A holding that the offending portion of a statute actually is not severable would be a holding of state law, not reviewable here.

CONCLUSION

To the extent it holds Virginia Code §18.2-423 unconstitutional as content discrimination under the rule of R. A. V. v. St. Paul, the decision of the Supreme Court of Virginia should be reversed. The case should be remanded to determine whether the statute applies to any cross burnings which are not constitutionally proscribable threats, and if so, whether such applications are severable.

August, 2002

Respectfully submitted,

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3. Justices Scalia and Thomas concurred in the result on the broader grounds that regulation of nude dancing " 'is not subject to First Amendment scrutiny at all.' " Id., at 307-308 (quoting Barnes v. Glen Theatre, Inc., 501 U. S. 560, 572 (1991) (Scalia, J., concurring in the judgment)). Hence, the plurality opinion is the holding of the court under the rule of Marks v. United States, 430 U. S. 188, 193 (1977).

4. Counsel for amicus attended public schools in Fairfax County, Virginia, from 1960 to 1971. The county maintained separate black and white schools through the 1964-1965 school year, and finally integrated in Fall 1965.