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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

The present case involves a statute enacted to protect the people from terrorist threats. The Supreme Court of Virginia held that the First Amendment precludes enforcement of this statute in the present case even though the defendants' act is not protected expression. This result is contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

On May 2, 1998, defendants Richard Elliott and Jonathan O'Mara, along with David Targee, attempted to burn a cross in the back yard of James S. Jubilee. Mr. Jubilee is a neighbor of Elliott's, and there had been a dispute between them arising from Elliott firing guns in his back yard. Black v. Commonwealth, 262 Va. 764, 768, 553 S. E. 2d 738, 740 (2001).

O'Mara pleaded guilty to attempted cross burning and conspiracy to commit cross burning, Va. Code §18.2-423, but reserved the right to appeal on the issue of the constitutionality of that statute. Elliott went to trial on the same charges and was convicted by a jury of attempt but acquitted of conspiracy. 262 Va., at 769, 553 S. E. 2d, at 740-741. The Court of Appeals affirmed. O'Mara v.Commonwealth, 33 Va. App. 525, 535 S. E. 2d 175 (2000).

Defendant Barry Black burned a cross at a Ku Klux Klan rally, which was held on private property with permission of the owner. Black, 262 Va., at 782, 553 S. E. 2d, at 748 (Hassell, J., dissenting). A neighbor testified that she feared arson of her home and harm to her children. Id., at 782, 553 S. E. 2d, at 749. The Court of Appeals affirmed in an unpublished opinion, relying on its O'Mara opinion. See id., at 769, 553 S. E. 2d, at 741 (majority); App. to Pet. for Cert. 46.

The Virginia Supreme Court consolidated the cases and reversed in a 4-3 decision. "We conclude that . . . the selectivity of its statutory proscription is facially unconstitutional because it prohibits otherwise permitted speech solely on the basis of its content, and the statute is overbroad." 262 Va., at 768, 553 S. E. 2d, at 740.

SUMMARY OF ARGUMENT

When a court invokes the First Amendment "overbreadth" doctrine, it refuses to enforce a statute in the case before it, even though the statute does not conflict with the Constitution as applied to that case. This result is contrary to the basis for judicial review, contrary to the people's right of self-government, and of doubtful legitimacy. If "overbreadth" is not to be abandoned altogether, it should be applied sparingly and as a last resort.

The statute at issue in this case prohibits threats, which are not protected speech. It does distinguish some threats from others on the basis of content, but it does so on a permissible basis. Cross burning is a particularly threatening type of threat. The fact that an otherwise valid statute has a greater impact on one group of speakers than another does not render it invalid.

The Virginia Supreme Court conducted its overbreadth analysis without considering severability. This is an error of federal law underBrockett v. Spokane Arcades. The determination of whether a statute actually is severable is a question of state law, not reviewable by this Court, but no such determination was made here. If this statute has any invalid applications potentially rendering it overbroad, severability must be considered before deciding whether any unseverable, invalid applications are substantial in comparison to the valid applications.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

All parties have given written consent to the filing of this brief.